*1 JOHNSON, Jr., Appellant, Cecil C. Tennessee, Appellant.
STATE of Tennessee,
Supreme Court of
at Nashville.
Sept. 1990.
Rehearing Denied Oct. 1990. Burson, Atty. Reporter,
Charles Gen. & Kymberly Lynn Hattaway, Anne Asst. Gen., Nashville, Atty. appeal. for State’s Thomas, Sanders, James F. G. James Harwell, Cate, III, George H. Neal & Nash- ville, appeal. for Johnson’s OPINION O’BRIEN, Justice. post-conviction proceeding This is before applications permis- joint the Court on appeal judgment sion to from the Appeals. The State Criminal takes issue with that court’s rul- prosecuting attorney’s argu- Eighth ment at trial was violative the defen- Amendment and whether or not any right post-conviction waived dant prosecutorial miscon- relief on his claim of defendant-petitioner duct. The has raised (26) equally divided twenty-six issues about guilt phase at trial and the between sentencing proceeding. found January petitioner
On 19
(3)
in a
trial on three
counts of
murder;
(2) counts of as-
first
murder,
intent to commit
sault with
(1)
robbery. He was
count of armed
sentenced to
each
charges
degree murder
and re-
life sentences on each
ceived consecutive
charges.
May
On 3
1982 this
the other
the convictions and sen-
Court affirmed
*2
579
held that the essen-
petitioner.1 A
intermediate court
imposed upon the
tences
May
in
denied
21
was discussed
petition
problem
to rehear was
tial nature of
relief,
4
post-conviction
1982. On
1982
United States
even
petition
October
for
petition
Supreme Court denied a
for writ
in
Caldwell.
opinion
in
of the
advance
A
in that
petition
certiorari.
rehear
agreement
They expressed their
court was denied on 28 October 1982. This
Appeals
in
Court of
10th Circuit
post-conviction
for
filed
petition
relief was
Brown,
593,
in-
Dutton v.
812 F.2d
which
March
and denied
an evi-
on 15
1983
after
corpus jurisdiction.
federal
volved
habeas
ap-
dentiary hearing.
petitioner
here
In the Dutton case
the court
discussed
judgment
pealed the trial court
Ross,
1,
2901,
104
Reed v.
468 U.S.
S.Ct.
Appeals
on 20
Court of Criminal
which
(1984).
Reed
2911,
1
82 L.Ed.2d
affirmed,
January
part,
1988
and re-
ruled that cause existed for defense
court
part,
judgment
trial
versed
of the
failure
raise an issue when a
counsel’s
dismissing
petition
post-con-
court
for
Supreme
subsequent
Court decision articu-
relief. The
court set
viction
intermediate
principle
previous-
not
lated a constitutional
imposed in
aside the death sentences
ly
Ap-
recognized. The Court of Criminal
court and remanded the case for a
trial
peals
princi-
ruled
then
novel-issue
hearing on the
new
first
ple
equally
post-con-
in State
applicable
murder sentences.
litigation. They
judg-
reversed the
viction
firstWe
address the Court of Criminal
denying
the trial
relief on the
ment of
court
remanding
Appeals judgment
the case for
imposed
remanded the case
sentence
sentencing hearing.
a new
We reverse
hearing.
for a new
judgment
that court’s
and reinstate the
expressly provides
T.C.A.
40-30-105
§
imposed
sentences
in the trial court.
grounds
post-
when
stated in a
for relief
Tennessee, appellant here,
The State of
petition
recognized
conviction
Mississippi,
v.
Caldwell
citing
472 U.S.
existing
of conviction and re-
time
320,
2633,
(1985),2
105 S.Ct.
We do not
solely responsible
with the State’s
authorizing impo-
argument
Caldwell, supra,
sition
penalty.4
did not cre
ate a new
right,
constitutional
nevertheless
portion
That
Attorney’s
District
there is no constitutional mandate which opening
argument
statement and final
*3
prohibits
requires retrospective
either
or
lower court found constitutional-
Walker,
effect. See Linkletter v.
381 U.S.
ly offensive is as follows:
618,
1731, 1737,
85
14
S.Ct.
L.Ed.2d 601
today
“Your issue
is whether Cecil John-
(1965).
recently,
More
United States Su
experience
penalty.
son should
the death
preme Court decisions indicate the intent
Now order to arrive at that and we
pros
that new rules for conduct of criminal
(sic)
you,
you
we asked
will recall
applied
ecutions are to
retroactively
judge
on the voir dire and the
ex-
will
cases,
Federal,
pending
State or
plain
am satisfied the de-
direct review
yet
which are not
See
final.
will, you
option
fense
also have the
of
314,
Kentucky,
v.
479 U.S.
107
Griffith
imprisonment
life
on those three mur-
708, 716,
(1987).
S.Ct.
93
In
L.Ed.2d 649
your
options.
ders. Those are
That
Lane,
Teague
288,
v.
489 U.S.
109 S.Ct.
can,
got
is all
to debate. You
1060, 1075,
(1989)
you entered into yourself context, must ask Taking foregoing how does that fit of the says, with what the law with what the there is no possibility that the law is in this That’s responsibility State. what we are was led to believe what, here about. That’s that’s what our determining appropriateness of a argument entire here is about. Is look- death sentence rested not with them or at the law the State of Tennessee suggested any way they might shift juror, body, and what do as a as a responsibility appellate their sense jurors, what do do? opening court. Neither the statement nor closing argument contained such
message jury. to the findWe considerable Again, I emphasize enough can’t ambiguity in the inference made Attorney situation is to be unusual in General that the United States to, the sense that to have ought Court had decided there (sic) possibility, But, punish- assess the penalty. light be a death of the possibilities statement, ment as to three victims. balance of his we do not find one, Any Not but three. one of these scrutiny that remark to fail the individuals, Bob, Moore, capital sentencing Little James required determination *5 House, them, any one Eighth Charles their under the Amendment. deaths, just single their death alone application appeal The defendant’s enough would be for this here to be twenty-six majority includes The issues. considering pondering whether or appeal5 these were on direct considered anot life sentence or whether it is death and, therefore, previously have been deter- by electrocution.... mined. Others have been waived fail- gentlemen, Ladies and the court de- present will them at trial or ure to on direct particular fine for the law this appeal. T.C.A. 40-30-112. We have § case. It will set out the formula that granted application to consider the in- to, (sic) apply, need how must appellate termediate court’s treatment of assessing go proper what is the they the issues. We now find that punishment. reviewed, properly considered and dealt appropriately. opening Both statement and judgment The of the Court of Criminal closing argument great deal more was Appeals reversing the trial court and re- define, explain, aggra- said to and discuss manding sentencing hearing for a new vating mitigating circumstances and cir- judgment of the trial court reversed. jury’s duty cumstances and the in refer- is reinstated and affirmed. all other ence to the consideration of each. In the respects, judgment of the Court of closing argument prosecutor also re- Appeals Criminal is affirmed. Costs viewed the evidence and the circumstances against the defendant. assessed of the homicides for which defendant been convicted. FONES, HARBISON, COOPER judge The trial instructed the JJ., concur. statutory required pun- them to fix the DROWOTA, C.J., separate sentencing hear- files separate after a ishment concurring opinion. the defendant to determine whether impris- to death or life should be sentenced and that their verdict must be
onment APPENDIX punish- as to either form of unanimous OF OPENING STATEMENT duty on their ment. He instructed them STATE’S COUNSEL mitigating aggravating and consider both right, there All statutory THE COURT: circumstances in accordance with opening statements? subject. law on Johnson, 5. State supra. there an
know that fair murder, ordinary garden variety but that it Yes, if Your Honor MR. SHRIVER: ordinary murder. Those than worse please. are the circumstances. Now Court, please May ladies and prove at least one of those. we have to gentlemen, you have found Cecil Johnson will undertake to Then the defendant degree. guilty of murder in the first As mitigating cir- that there are convince explained questioning when we were Something that cumstances. overcomes you, picked, this is a two when things about this case which should bad your job is process. Now to decide impose cause to determine not his be should of, three, penalty. charges, the three sentences charges the three of murder Now, the, degree. the, I think the first Now expect rely on are these three: keep need to in mind is that the debate knowing first that the defendant created a ought here is not whether there a great persons risk of death to two or more already penalty. has de- That during other than the victim murdered his The United cided. States actual murder. We have shown Leg- has decided The Tennessee State murder, just there wasn’t represents people, islature Moreover, there was murders. therefore the collective great bodily risk of harm to two or more and in people Tennessee Davidson Coun- Bell, persons, Smith and Bob Lewis ty, Legislature the Tennessee grace of Sr. But for the God there is a death as a available *6 only be dead too. Bad aim is about the in degree. for murder the first today. thing that makes them alive So you debating So are not there bodily there was risk of harm a substantial penalty general. a ought death persons. or death to two other today Your issue is whether Cecil John- The second circumstance we experience penalty. son should the death expect rely on is this. That the murder Now order to arrive at that and we purpose avoiding, for the of was committed you, you asked recall on the dire will voir with, interfering preventing lawful or Judge explain you and the will I am prosecution for of or arrest the defendant will, you satisfied the defense also have the quite proof another. All the has made it option imprisonment of life on those three here, purpose mur- clear of these options. Those murders. are identification, ders was to avoid arrest and you got That is to debate. You prosecution. They utterly were senseless can, him you can vote to executed—now except that context. There was incidentally doing you it is not that. You They no were purpose for these murders. judgment, representing are the reflective willful, mur- utterly wanton and wasteful said, people as I have of of he, except purpose he ders of Or Tennessee and Court. was to avoid engaged in them and that prison. you him to life in can sentence arrested, identified, being being avoid avoid judgment, you to arrive at that order being prosecuted. weigh things. certain Finally, aggravating circum- the third says The statute the State must expect rely on is that stance that we prove at circum- least one murder was committed while defendant Now, strange stances. is sort of a committing robbery. engaged got concept. What means is we have that. He was proof clearly shown something case there show about this robbery. here, guilty of Those are found is a list them in the book we have statutory aggravating got something is about to show that there catego- say justify your consideration fits which we this case that in one of several than, penalty. I don’t the death that make ries worse
CLOSING ARGUMENT OF STATE’S COUNSEL put Now the defendant will (Whereupon open returned to mitigating Things circumstances. following proceedings court and the against weigh that. I have presence:) had in its only looked at the list here there are having two that I can conceive of rela- THE right. COURT: All tion to this defendant. One had MR. gentlemen JOHNSON: Ladies and significant history prior no criminal ac- jury, again point we are once at youth tivities. The argument. are, however, the sen- at defendant at the time of the crime. tencing stage as I you all of are well know though, aware. It is what is at least terms Well, one, prior no criminal argument. statute as as I As far am acts. It me seems to no reason to point concerned though I think that mitigation even consider that as a in view position in a doing enormity the crime committed to, trying I hope to do is not much second, youth, twenty- here. The his he is argument and more aof discussion with old, years four youthful. that’s not so regard responsibilities to the duties and have assumed that that apply meant you that all of jurors facing. are now juvenile very young some or defendant. When originally were called in Also, the defense is entitled to individually questions, voir dired and asked character, reading evidence of his and I am things, probably impor- the most statute, character, from his back- questioned tant ground, history, physical condition and your feelings both sides about the tending evidence establish rebut Certainly penalty. something that is aggravating circumstances. that before entered courtroom about, thoughts perhaps had had dis- predict I don’t know how to exactly what cussed, never been in situa- those are to be. I am sure tion where to hear from who think or necessarily reality. be a *7 thought happened before this that a he was more, nothing conveyed If we I am good may good fellow. sure He have been a was, you course, impor- to that this case of pleasant He may fellow. have been a man. tant, and, course, significant of consider, mind, addi- keep in your But he what conveyed you tion we to any that did here. going made this case to be an Now, put the is State to easy regardless one of the what time, proof at this because we feel we that regardless of how the evidence came out already proved have aggravating the cir- stand, from that witness ultimate deci- mentioned, already cumstances that I have you jurors sions that had to make as were way already I that have stated to be difficult are ones. you. proved, proved We have have by made all that much more difficult you through that witnesses here penalty fact that the death is involved. people, he created the risk to two other Now, you beginning all of said that did he it to avoid arrest conviction you penalty could consider death and that he it in of rob- did the course you, and that is ask of is all bery. relying We are therefore all penalty consider the death as it forth is set the witnesses who testified statute, you in order because you incorporate and ask that and that the take oath the Court administered testimony record show that their in the able, you you had to be had to be in guilt phase incorporated by of this trial be position you could consider reference and included in the you the law as is in Tennessee. That phase. make true in this could determination according right. Engle. THE COURT: All Mr. case the law and evidence. House, Bob, Moore, Charles one James them, deaths, just single their their is down now. We And that what we are enough jury for this alone would be death past stage guilt. past considering pondering here question guilt. been re- Guilt has a life sentence or whether it or not yester- by jury solved and determined is death electrocution. afternoon, evening. In day yesterday done, has Legislature what remember, you you as all found resolution I you, is taken Judge will instruct degree the defendant of first mur- approach pun- to the think a common sense in- der. Not or not one phase. you questioned All of ishment stance, but in three. And function penalty, by both sides about death taking now has to do with those three questioned importantly more situations, victims, those three the cases about, many I recall that involving those three and determin- asked, pen- well do consider the death ing whether or not the law dictates that the punishment you consider the alty a —would imposed. I penalty death shall be will be penalty types in all very frank with have convict- everyone And I think murder cases? defendant, already, ed the no, far, no, go go I can’t wouldn’t already given period him a considerable Well, Legislature far. has what certainly per- time and easiest decision exactly agreed done is more or less with haps confronting simply is to con- Legislature thinking. kind The has clude that a life sentence on these three re- acknowledged penalty is justified. is what is murders all, punishment only ally a available first decision, may While that be the easiest all, just first of in cases of first question you jurors as individual must is, situation, as in this where yourselves fit ask is how does that premediated and we have that murder says, law in with what the But, just through been that before. this State. That’s what we are here about. alone, just fact alone that the fact what, argu- That’s that’s what our entire necessarily premeditated, would not case looking ment here is Is at the law about. automatically penalty mean that the death in the do you Tennessee premeditated mur- must That once follow. body, juror, jurors, as a as a what do established, has the death der step The do? but one imposed. shall be Because the process. Legislature, as General Shri- Legislature are certain said that earlier, spoke ver has enacted the death are, you might things that call penalty, body that into the factors, *8 Tennessee, applicable law in said that is things already take an serious crime that in first murder cases. It set forth By and make it that much worse. the under what circumstances and how the recognized may be same token it that there and should be considered things mitigate the crime. miti- that Either imposed. whether or not it will be itself, gate the the crime is facts is, system. certainly jury part the is of that itself, mitigate punish- or the crime should just process But of a determin- it is Something of the defendant. ment favor ing punish- proper appropriate what is the prior personal background, his about his case, for, ment in this Johnson. For Cecil character, any factors like that. And that three, separate responsibility his three do jury essentially then has to is first degree murders. mitigating cir- weigh aggravating and Again, enough formula, I emphasize pro- can’t a under a under cumstances cess, Legisla- going procedure, is unusual in the situation under a to, going to have and sense that has set out and that instance ture possibility, punishment pos- understanding, that where assess one, jury has sat and jury as to victims. Not but fits in. Because sibilities three individuals, deliberated first the case Any of those Little listened and three. on,
originally put proof three, aggravating demonstrates cir- regarding whether the defendant was cumstances. guilty or not on to the then order, will do them in but first of phase, if second should the defen- find all, bit, amI to shorten it a little use you have, guilty, proper dant if what is the shorthand, but, some it- circumstance punishment? is that self the murder was committed they said, again engaged while the defendant was in com- Judge this, will instruct mitting accomplice or was the com- that a must do in the of, attempting mission or was or commit phase must decide or not fleeing committing, attempt- after or State, proved beyond State has a commit, ing any, and rob- more, reasonable one or doubt that one or words, bery. any other other serious aggravating more even circumstances ex- now, felony. But murder was committed even, get ists. We don’t we don’t even during robbery. a more, anything don’t have make other determinations until decide Now in that situation one, first. or not the made only Whether State has a heard. We case, proved beyond a reasonable doubt plural. have three Murders murders. aggravating that one more circum- during robbery. Committed a a And as stances exists. says, of fact says matter the statute only that the murder was committed while Then, only they, then then if do committing engaged the defendant was decide, yes if the decides that robbery, a but also committed when the proved beyond State has reasonable when the defendant was flee- circumstances, aggravating doubt that the ing, fleeing robbery from we have— more, exist, one or do in fact the next General, question aggravat- is whether or not THE COURT: is not in the ing aggravating statutory or those cir- circumstance circumstances. outweighed mitigat- cumstances are beg your pardon, MR. JOHNSON: I evidence, any mitigating circumstances please? Your Honor brought that the defense forth. The your aggra- THE COURT: That not in goes says if you should circumstances, fleeing vating part. find that the circumstance or Well, if MR. JOHNSON: Your Honor shown you by circumstances please, thought our circumstances outweighed by are not any mitigating cir- take into account of that lan- words, mitigating cumstances—in guage but if the hold us do point not rise to such that is fine. your opinion they outweigh ag- that in crime, gravating features of the event, gentlemen, in any Ladies and punishment, Legislature’s and this is the is, what the situation is that this all oc- language, shall be the, robbery curred while was tak- while weighing process. Leg- death. It is a murder, murders, ing place. That the picked islature has out features certain *9 plural, during, a during were committed believes, say, already that it as I take an robbery. That is first one. And we very, already an serious make crime and it what know those are. We know what the that much worse. proof is. We know there was no re- by anyone sistance there. We out know specifically, aggravating Now what cir- cumstances, robbery in fact been had accom- aggravating what features is plished. money are three know that had State allowed? there already passed been to Cecil aggravating circumstances the State back Johnson says case-in-chief, firing by evidence before started. Before he shot our first, presented origi- at the he time of the Little Bob before shot his father innocence, question guilt nal he or what we shot Smith and before before Lewis But at them.
a doubt. look reasonable interesting sense The first two more men out- out and killed two he went aggravating they, what is what do more, got is And what side. aggravating What is about them? Mr. and Mr. people, House when a the fact that I is them submit who, showed, the evidence Moore outside those, during during murder occurs they sat with abso- shot dead where were it occurs and robbery, when a murder a or absolutely any lutely warning, without no what that people, other creates a risk to any- idea, having anything, done without or the is that the defendant demonstrates to deserve that kind whatsoever certainly com- crime is perpetrator of that fate. disregard no for pletely wreckless with Well, second else do we have? The committing people in safety of other knowingly cre- one is that the defendant first one where For instance acts. persons or more a risk of death to two ated robbery, commits under committing a Again, a victim. created other than the automati- where is a risk. We risk. course created Of danger. else’s life in cally putting someone have, course, murder victims to disregard Now, sure, that is a wanton inju- begin Then we have the serious with. person, how does safety another mur- to Mr. Bell and Mr. Smith where ries from third? How does that differ were, They they were der was the intent. killing question of a wit- differ from the By killed that man almost themselves. witnesses, plural? or in this case ness right heard the evidence itself. there. You it differ? It differs because How does from that You heard evidence stand is the aggravating is about that was, what the intent where their wounds requires a that it such deliberate fact were, injured, they when they how deliberately To decision to kill. conscious Again, aggravating injured. another I up mind that am make one’s saywe it is circumstance and established eliminate, I to kill witnesses am beyond a reasonable doubt. is my criminal behavior. that what Then we come to the crux of this case That is what the we have in this case. that had feature has told that is what in mind. this case first, a very have is from the that what we object I would to that. The conscious, deliberate, attempt MR. ENGLE: premeditated possible could not know what the General kill by witnesses the defendant legislature in mind when drafted crime, committed virtu- a crime that he to this this statute with reference case. neigh- backyard, his in his own ally in own borhood, community, without his own right. All Members of the THE COURT: any disguise, without the benefit jury, you should dis- the last sentence disguise who he effort whatsoever regard. Go ahead sir. market, up in well lit holds walks Well, in MR. JOHNSON: essence there he has traded v/ith a man with whom says circumstance that from one any recollection of purpose committed for the the murder was week, who had two to three to four times with, avoiding, interferring prevent- days just few only in there prosecution of the ing a arrest for lawful before, goes in there and robs short, what that or another. defendant goes then on to kill three of market and avoiding just going means and am there. Three of people five one, but in short what arrest to cover five that were there. Killing killing means a witness. absolutely essential Witnesses Something planned that has to be witness. why system and that justice criminal earlier, pre- Something as out. *10 aggravating one. there is an that feature requires a de- Something that meditated. to deliberately set out Where someone can on the of the killer. What liberate act very people very people, the eliminate the got circum- have prosecuting beyond can of assistance that be have been established stances that 588
people walking in and has the he presence put of mind to his arm around bringing him and person justice. that Bell, Bob the man whose son a few minutes happened, What would have what would going later he was to kill and Bob if happened Bob have Bell Lewis Smith got good sure some barbecue. What about Remember, also been killed? remem- robbery? robbery after the he After Smith, that only piece ber Lewis go house, to his father’s he was able identification he even had on him awas alibi, call girlfriend up to set an able driver’s license and the defendant took it. go out have a people beer a few robbery Took before the had even oc- in the neighborhood. toAble eat breakfast curred, hurding while people he was morning. at twelve or one o’clock in the searching, license, back he was took he What about his arrest? I Cool. Turned he said don’t even want to have this himself in. Relied on I his alibi. Said was very on from the start. From the town, I out of was in Franklin. What very start. went He into market with testimony? about his the idea he was to eliminate every single person put could him gentlemen, Ladies Court will de- single Every person that market. fine for you particular law in this case. get could come in and on that witness to, It will set out formula need testify, yes, stand and they saw CecilJohn- apply, go assessing how must Yes, son rob that market. were the proper punishment. what That all robbery. precisely victim a that is asks you. you. Thank he what did. DROWOTA, Justice, concurring. Chief opportunity, defense has an has had I While concur the results reached opportunity mitigating circum- opinion, majority separately I write course, they op- stances. Of will have an express my opinion that the Court should portunity argue mitigating those circum- address the merits this case because present stances after I sit down. At the the rule of Mississippi, Caldwell v. 472 the only mitigating, mitigating time 320, 2633, U.S. 105 S.Ct. 86 231 L.Ed.2d think they really circumstances I (1985), applied should not be retroactively about, anything was lack of post-conviction in this proceeding. prior substantial record and the was provides post- T.C.A. 40-30-105 § twenty-four I years age. granted conviction relief shall be when the not, point, at am don’t intend conviction or sentence is void or voidable mitigating to discuss the factors. That is abridgement right because something to have to guaranteed by the Constitution of the State weigh yourself. Compare look Tennessee the Constitution mitigating aggravat- factors to those States, including right United that was But, impor- factors. I think recognized existing at the time of tant, proof. is to remember the All the requires trial either constitution retro- proof that has come here. it is Because spective application right. In the and I serious decision think is safe — Smith, Sawyer recent case of v. U.S. actions, say and often is said that actions -, 2822, 110 111 193 S.Ct. L.Ed.2d speak things louder than words. There are (1990), Court, States United jurors, as individual as individual applying retroactivity can, analysis an- pick up can see and can Lane, Teague nounced v. 489 about, all U.S. determine what case is (1989), S.Ct. 334 L.Ed.2d held Cecil Johnson What about. Constitution re- from Federal does not seen that witness stand? What have quire that you observed in this Cecil the constitutional rule estab- courtroom about Mississippi lished in retro- Johnson? He is cool. He is calm. Caldwell Unfeel- unemotional, ing, actively applied to remorseless. No re- those cases in night. petitioner’s corpus morse. Remorseless that Cool that habeas conviction had night. robbery, prior the middle an armed final to the become Caldwell decision.
589 guar- Constitution. These petitioner’s State or Federal conviction became case 1982, right appellate do not include years almost three antees final in October Caldwell, beyond the extent that the State review Teague see before the 1067; therefore, against him individu- Lane, may retro- not discriminate 109 S.Ct. at v. process. This has not ally appellate re- application of not active Caldwell occurred. quired. expressed is a The rule Caldwell request petition that this to rehear The Eighth jurisprudence and
of Amendment by the to and considered new- be submitted matter of federal law. Where Federal Septem- ly-elected taking office on 4 require does not retroactive Constitution merit. is also without ber 1990 judgments be- application to which have presently Three the members rule of constitu- come final before a federal previously partici- sitting Court have not announced, the Tennessee tional pated in of the case and are consideration require Constitution does otherwise. lawfully competent to act in therefore not position concerning the my Because of in its review. any capacity rule, I retroactivity of the find Caldwell petition The to rehear is denied. majority’s inappropriate to comment of the merits of evaluation Caldwell
error in this case. C.J., DROWOTA, and COOPER HARBISON, JJ., concur. ON PETITION REHEAR
ORDER TO FONES, J., participating. scholarly petition A rehear has invoking filed on of defendant vari- behalf provisions of Ten-
ous of the Constitution citing
nessee and numerous court decisions support to have the its solicitation reargued
case before the resubmitted
newly-elected sitting presently Court.
The petition rehear does not meet the requirements of T.R.A.P. 39. Tennessee, Appellee, STATE of opinion this Court unanimous September 4 It the case was filed on 1990. is contended that the term office BOYD, Appellant. Michael Joe the case
three of the Justices before whom expired argued pri- Tennessee, Supreme was submitted and Court of opinion or to the date the of the Court was at Jackson. entered, these filed and therefore 24, Sept. 1990. functus officio and without
Justices were power to act. August,
On 27 Chief Justice VI, Court, auspices of under the Art. 2, Constitution
Secs. 3 and 16-3-502, designated each T.C.A. § qualifications are
the three Justices whose August act
questioned, sit and after Special Justice completing purpose
Court for pending in which
work cases participant.
had been a every trial
Defendant been accorded him either the
right guaranteed under