*1 of Tennessee STATE Jo WALLS
Susan Tennessee,
Supreme
AT NASHVILLE.
February 2017 Session
FILED 11/09/2017 *2 III, Slatery Attorney
Herbert H. Gener- Blumstein, Reporter; S. al and Andrée So- Coulam, General; C. licitor Andrew Assis- General; Carter, Attorney tant Robert J. General; Attorney District and Richard A. Randles, resumed, trial court instructed ings D. Assistant Cawley and Michael jury p.m., and retired General, 6:30 appel- around District Attorneys below, multiple As detailed lant, deliberate. Tennessee. State of among the trial interactions occurred Westmoreland, Shelby- Christopher P. during attorneys, judge, ville, defendant, Tennessee, Susan for the *3 The returned a verdict at this time. Jo Walls. following morning. The Court a.m. the 1:05 defendant Appeals granted the’ of Criminal OPINION late-night on the issue of court pro relief J., opinion the Roger Page, A. delivered Walls, M2014-01972- ceedings, State No. Bivins, court, Jeffrey of the S. which CCA-R3-CD, *13-14 WL A, Clark, C.J., Kirby, Holly Cornelia and 2016), (Tenn. perm. Apr. Crim. J., Lee, JJ., joined. a G. Sharon filed 18, 2016), Aug. app. and granted separate concurring opinion. Appel Rule of the Tennessee State filed a granted the appeal this by We permis application late Procedure trial whether the Tennessee consider arguing appeal, Court sion that the allowing jury in the court erred ruling. its Appeals erred in We Criminal night late into and to deliberate the case granted to consider wheth application the day of morning the last trial early on er, alia, per erred trial court inter the convicting the defendant first before into the late jury to mitting the deliberate conspiracy to commit degree and murder night morning hours. early and of Crimi- degree The first murder. Court the relief Appeals granted nal defendant AND PROCEDURAL II. FACTS issue, reasoning a that absent on this HISTORY circumstances, late- showing of unusual County August On Bedford should be night proceedings avoided trial to a responded Tim Fox Deputy Sheriffs not pre- that such were and circumstances report'of Enon Road on Church a theft accepted ap- sented this case. We arrival, his he en- County. Upon Bedford clarify to examine this the peal Walls, defendant, the Susan countered appeal. on applicable standard standing at the daughter her Dawn Walls review, Following conclude the our that -There, victim, mailbox. he learned the in con- Appeals erred Criminal residence, Walls, Sr., the Larry was inside conducting court’s cluding the trial a curso- performed Deputy Fox deceased. late-night requires rever- proceedings trial ry observed the check residence Accord- convictions. sal of the defendant’s He de- bedroom. victim floor a Appeals of Criminal ingly, the Court gruesome.” “pretty as scribed scene judgments and the reversed walls, floor, on the Blood was affirmed. court are the victim. furniture around INTRODUCTION I. Investigation Bureau Tennessee (“TBI”) Agent Utterback Special Caleb began matter of this Mon- to the scene Bedford responded also The trial continued day, May from pursuant request Thursday County after- through until the week Attorney County District noon,^ closing arguments, the Bedford May 8. After investigation. TBI to Based handle approximate- in recess for trial court stood thought he upon experience, his hours suffered ly two when the defendant “staged.” Special appeared scene proceed- crime emergency. a medical When recording Agent Utterback listened and various could be methods that em- call in ployed. the 9-1-1 his vehicle. defen- ' call, placed dant had Dawn1 had but In mid-July, the visited her dispatcher finish call because could daughter at the Aelisa residence Aelisa’s agreed understand the He defendant. boyfriend, The defendant Joseph Williams. recording' him as struck “odd.” puffy though had she-had been eyes-as' theft; dispatched The call had crying, and it1 Mr. appeared to Williams conveyed neither the defendant nor Dawn that someone had her. The defen struck any person information about deceased dant told Mr. Williams victim Also, gave at the residence. Dawn alibi her, it,” hit that “she was tired day dispatcher, pre- for the it “was the last time he ever going whs “huge flag” Special Agent sented red hit her.” The defendant remarked that *4 Utterback. “she had taken care that she and had guys some going that was [sic] come
During investigation, they the TBI’s dis- and down slit his throat.” covered the death had been victim’s the of a result murder-for-hire. Several Approximately later, one week Dawn witnesses, Dawn, including sisters Ae- her spoke with again Mr. Starrick- and dis- Walls,- Stacy and her lisa Melissa brother “tak[ing] cussed his -care of- [the victim]” others, Walls, Jr., Larry the and described acquiesced The defendant and $400.2 having victim as been an “evil man” who Dawn that pay told she would half of the extremely, physically had plan abusive sum. A was formulated and Dawn both the children and defendant and-their defendant take her Aelisa and four sexually years, the. abusive Dawn. Over children to Chuck a E. restaurant Cheese’s many family of the victim’s had members provide opportunity for Mr. Starrick offhandedly that-they commented wished to kill the victim at-his plan home.-The was point he were dead but to the never discussed five or six times before it was plotting his .death. executed.
During Day night murder, Memorial On the August Weekend before the 7, 2012, the victim traveled to people and defendant several present were at the Antioch, Náshville, to spend a suburb of home of the' victim and the defendant. night apartment. Dawn’s Dawn Dawn and defendant discussion apartment boyfriend, why shared the with her everyone about was -there. They said roommate, -McClain; Chrissy following Derrick her that the murder occur would Twilley; Twilley’s boyfriend, day, August and Jason At point, Ms. 8. some Dawn in- weekend, Dawn, During the Starrick. formed Mr. Starrick that the back door defendant, always and Mr. Starrick discussed how the residence was Dawn unlocked. money killing much the victim would cost indicated that she wanted take Aelisa’s frequency Several of telephone witnesses this case and various calls female and For share the surname of "Walls.” son, that rea- messages exchanged among were text we will refer defendant, Dawn, to the their Starrick, witnesses Jason Ae- and so, given By doing names to avoid confusion. (the purportedly lisa defendant used Aelisa’s disrespect. no we intend telephone periodically personal when order). telephone Many out these trial, including repre- 2. Several witnesses at logistics, price involved communications ne- TBI from Wireless Verizon and sentative gotiations, committing thé methods agent specialized computer who and cellu- murder. forensics, telephone lar discussed the content crime scene. Dawn E. because the to see the victim the son to Chuck Cheese’s get ice cream year begin night, That defendant went school would soon. Starrick, Dawn, Aelisa, from the Twilley, Ms. for all the children defendant’s Mr. Gerheardt, longer than trip their took and Aelisa’s children house. When four Sean why they Aelisa called to see apartment expected, cars to drove two Dawn’s delayed. told Aelisa night. Everyone were The defendant spend Antioch to ex- to the victim. spent night happened there. cept Mr. what had Gerheardt in cash and paid Mr. Starrick Dawn $70 ini Although the Dawn defendant and provided also him with a debit card and they tially gave statements which dis personal number so that he identification involvement, they subse any claimed both necessary items to car- purchase could they in which quently provided statements ry did not out the murder. accepted responsibility explained any money to Mr. contribute Starrick. surrounding leading up to events In to the following morning, Mr. victim’s murder. addition confes Gerheardt sions, at trial included apartment, to the and he and Mr. the State’s evidence returned evidence, matched the vie-- apartment around 6:15 forensic Starrick left on Mr. They debit card that tim’s blood with blood found Star- a.m. used Dawn’s gas long-sleeve and at rick’s shirt was recovered morning Mapco station Walmart, they purchased apartment ammonia with blood found where from *5 wearing when gloves. on the belt Mr. Starrick was and two sets rubber The defen- The examiner apartment around he was arrested. medical dant arrived Dawn’s by “multiple opined Mr. and that the victim died 10:00 a.m. Gerheardt Mr. Starrick thereafter; wearing any of which were they modality,” potentially returned were clothes, all of to his had some fatal and which contributed black and Mr. Gerheardt head, him. on Mr. Starrick removed death: blunt force trauma to the and blood heart, lung, to and liver. long-sleeve shirt that was wet. When the stab wounds the apartment, the Ms. Twil- Jason Starrick and Sean Gerheardt were two men entei'ed located, Twilley, on the with the assistance of Ms. ley “tissue or matter” side observed arrested; bloody finger- and a and the and Dawn of Mr. Starrick’s face defendant charged criminal They entered and with print on Mr. Gerheardt. a were arrested bathroom, first-degree premedi with a for up, responsibility cleaned and exited the conspiring garbage bag. Mr. Starrick murder the victim and plastic returned tated other, Starrick, card, Mapco Mr. debit and she drove to with each Mr. and Dawn’s to money to from the teller machine to commit said murder. Gerheardt obtain guilty sen spend at E. Cheese’s. When she defendant was found and was Chuck in prison to concurrent terms life Mapco, returned from Mr. Gerheardt and tenced plac- years, respectively. in lot parking twenty-one were and Mr. Starrick ing bag a black Mr. trash into Starrick’s appealed her conviction The defendant They that “it truck. told Dawn was done.” Walls, grounds. on and sentence several defendant, Dawn, day, Later that Aeli- *1. In the Court WL sa, Shelbyville. to and children drove Appeals, argued, Criminal defendant alia, inter they Shelbyville, Dawn that the evidence was insuffi- arrived
When convictions, support took Aelisa cient-to her by allowing jury to They trial court erred children Melissa’s house. night, planned this the defen- deliberate late into the advance because rulings. erred in several other dant did want Aelisa and her children court absence, structing Appeals jury Court of Criminal re- in her Id. The and de- objected convictions fense counsel thereupon “any versed the defendant’s based on action late-night deliberations but further without client [his] here.” suggested they “just on all other affirmed convictions wait if grounds. pressure Id. little while and see her blood proceed.” comes back down then Court, In this the State a Tennes- filed Thereafter, following oc- conversation Appellate appli- see Rule of Procedure curred the record: permission appeal, arguing cation for DEFENSE COUNSEL: I think ... court the intermediate erred may correct the General be there. reversing convictions defendant’s on my experience, And based I’ve nev- jury’s late-night based on the delibera- it took hospital er where granted application to con- tions. We twenty thirty or minutes a turn “a trial sider whether decision court’s around, especially your not when jury-trial proceedings extend into the late- pressure high. They blood is that al- night hours abuse [is] reviewed dis- ways want to make sure whatev- ... presump- cretion or de novo without a they’ve you er administered don’t tion of correctness” and whether “[a]bsent drop too of thing. low and that kind So attorney juror fatigue, ... evidence hours, going if it’s to be two the trial court the defendant’s violate[s] time, like long sounds two hours. rights process to due and a constitutional Especially, then to come in after back fair by permitting continue hours, here, if two she’s even we’re night.” its into the To deliberations late going thirty, forty have another issue, we must first decide consider expect minutes based what we properly preserved whether the defendant charge they’re going to be and then of a the issue the absence definitive deliberating at seven o’clock at start puling by the trial failure night? *6 during course of renew the motion the the Yeah, THE to going it’s take night proceedings.
late COURT: thirty, forty-five minutes to read me III. ANALYSIS charge. this requires This matter us to the It to DEFENSE COUNSEL: sounds proceedings me, that were conducted the are, that the based where we contemporaneously trial court with the thing adjourn would be to best do late-night as proceedings well as what tomorrow and start fresh the until hearing on transpired during the mo- the morning. problem I have a dis- don’t for a new tion trial. missing juror go the that needs problem I at all. Knoxville. have no 8, 2014, p.m. May At 4:04 the defen- experiencing problems. No further discussion ensued. The defen- began dant health summoned, from paramedic hospital, A he dant returned the and with was indi- trial court the pressure present, that blood the instructed cated the defendant’s 210/120, jury began The “[v]ery jury beginning p.m. at 6:30 was he described deliberating jury a high, suggested p.m. A The sent high.” deputy stroke 7:13 p.m. 10:41 they transport question the court at that should attorneys were still hospital, paramedic agreed. to a The trial court and and the answer discussing appropriate from when After the defendant’s removal courtroom, they hungry jury in- sent word that were the trial court mentioned grounds something The that think should have wanted eat. clerk we pizza jury, for they
ordered and at were not new trial 11:13 because p.m., trial court the. to the prepared length stay sent the answer for that jury’s question. jury its de- they night.. continued had guilty liberations and returned verdicts go THE COURT: and ad*- Let’s ahéad following morning. at 1:05 a.m. the that. My dress of those recollection late-night Defense counsel raised the events, [COUNSEL], ju- was jury deliberations motion a-new his rors to proceed wanted on. following trial. The discussion ensued at guess I I may preempted And have hearing: General. DEFENSE COUNSEL: time go respond want you Do ahead delay in time at the—there was to that? closing arguments the—between the recollection, my THE STATE: That’s reading- charge of the and the option.' them gave of medical because was emergency. remember the medi- pro- You they THE And COURT: wanted client, regarding my emergency cal ceed on. hospital. taken to the where she was Now, might problematic have been brought was back When the juror napping during had been prior to, they had out for some proof, but went there she back 1:30 in And then went till two hours. during period and rested of -time think morning, I what we did that— day. this occur [the defendant] Did when
THE was like 1:05 a.m. COURT:. It hospital? was taken over to the very long A DEFENSE COUNSEL: Yes, Your DEFENSE COUNSEL: jurors, time. But one of when she brought Honor. It was after she was in, fatigue. came back exhibited Said juror back in came in nap a nice back- there. she’d And having during nap nicé mentioned elderly, that she saying I’m not was that break. but she a little bit. being THE I don’t recall that COURT: things, I grand And in the scheme said, maybe other than anything any jurors-were know that don’t jest. length delibera- prepared mean, I I as a matter fact do occurred. tion[s] that *7 them, they believe I to asked did wish for a motion to argued continue We proceed. they plow And to wanted until, know, you a later time case of through. my Because recollection Monday Saturday, or even until I until events, they p,m. went out about Friday .7 on a at think because we were deliberate, very and came back to, point, maybe- or that was a 1 slightly after o’clock. Friday Thursday we had available was, to us. That what it was mean, more, I I’m without not—based night Friday morning. until Thursday my on examination the jurors forward, wanting to I argued proceed And I had to continue the them case, on you rejected imagine bearing that. And we can’t this had any be—juror ability fa- believe that that to reach verdict in this would a tigue, point, at is. one of case. .
899 2001). proceed- reviewing trial court Crim. App. general After This principle is our ings, it clear that- determination in this case. demonstrated must address whether defense issue Moreover, this Court has recog further properly preserved his “motion” to counsel importance nized the of a contemporane adjourn proceedings the close objection utilized, ous procedures to by the day Thursday, May 8. If we conclude trial to evidentiary addition issues. issue, preserve we must that he did Estes, In reiterated, v. State this Court issue, further determine whether .the “Objections to improper procedure must . waived deemed whether. contemporaneously be voiced to give the jurisdiction its should exercise review judge opportunity correct the plain on the merits issue pursuant on the spot. error In the absence a error review. contemporaneous objection, any error was A. WAIVER/JURISDICTION 179, (Tenn. 655 waived.” S.W.2d 186 Crim. THE COURT OF 1983) added) (emphasis App. (citing Tenn. 36); Smith,
We must first determine whether R. App. P. see also v. State 857 juris (Tenn. Appeals 1993) (“Defendant the Court Criminal 20 S.W.2d to" claim of diction consider defendant’s any objection to raise proce failed regarding error the jury deliberations. employed the trial by judge dure until (1) necessarily inquiries: This two involves the case after had been submitted to the Appeals propér the Court of Criminal did This failure to action jury. take constitutes interjection ly at trial as consider counsel’s procedure employed, a waiver which objection, thereby pre contemporaneous a constitutionally sound.”); find to be issue; serving appellate review Skelton, (Tenn. 799 (2) not, if the Court Criminal could 2001) (citation omitted) App. (noting Crim. Appeals properly applied plain error have may defendant be considered grant relief on this the defendant acquiesced action taken have claim error. if silent trial court he stands and that prohibits party from standing rule “[t]his Appeals The Court Criminal conclud while trial court commits an silent preserved this ed that'the defendant had in procedure, rely[ing] error then Walls, issue review. WL advantage error his or her own held, at *12. This Court albeit in a has time”); Mahoney, State v. later context, that in cases “where the different 1993) (citations Crim. pretrial suppression on a motion or record omitted) (concluding that defendant waived clearly presents on motion an- in limine whether court erred evidentiary question the trial and where ruled,” requiring presence his when returned judge clearly definitively has .question by failing to with a take “action to ob defense counsel need not offer further alleged prevent the occurrence er jections ruling. to the trial State v. court’s (Tenn. 1988). McGhee, “[u]nless ror” and that the1 cautioned, however, contemporaneous objection in makes a under We cases waived”). circumstances, only tentatively sug the issue is “issues are these *8 or gested only partially the and record [cjounsel im Although necessarily this issue developed!!,]
incompletely ... right to a plicates by the trial necessarily risks in defendant’s take some calculated Id.; jury, so a manner in which the renewing objections.” not see also does Alder, by procedure State v. utilized the trial court—late- 71 S.W.3d (2008) cannot (holding into proceedings—is “[o]ne called 762-63 that night jury by improper judicial procedural purportedly decision con question. the know jury duct, permit gamble to the to deliberate result as to trial court on a favorable required contempora- conduct, night complain into he late the that and then that or so that the trial objection by counsel neous guessed wrong she does not like the to opportunity court had an address outcome”); State, and/or Garza immediately. As noted the 1990) (citations omitted) correct issue (Tex. Ct. App. opinion counsel stated his supra, defense object (holding that failure to to the hour with an on-the-record discussion during noting of trial waives a claim error and on that “based the trial that a claim that “[sjpecifícally, the trial are, thing to ... do where we best on court’s action had a coercive effect to tomorrow and adjourn would be until by This object”). failure waived morning.” Counsel did start fresh imply should not read to be motion, nor he offer not make a formal did require talis- courts should counsel use support opin- of his argument further language manic such as “move” or “mo not ion.3 further note that counsel did We arguments preserved tion” for their to be not offer a seek and that the trial court did Rather, appeal. we reiterate that a ruling against the de- clear and definitive suggestion]” coupled ] mere “tentative[ time;' at that counsel offer fense did “incompletely developed” with an record argument objection or to continu- further poses great appeal. risk of waiver proceedings ing the when was McGhee, 746 462. S.W.2d at courtroom, or again convened before hearing on recognize also that at the We the trial instructions after court’s trial, alleged the motion for a new counsel or the trial- court an- jury, before after juror that one whom he as “el- described jury’s question, swered the when fatigue during evening derly” exhibited con- jury requested The discussion dinner. However, bring night.4 counsel did not day cerning adjourn for the whether alleged fatigue this to the court’s attention p.m., counsel did occurred around 4:15 but during not present the trial did this again the hear- not address the until hearing juror testify as at the a witness ing on motion for a trial. The new fatigue, any. if degree Taken opportunities counsel’s repeated revisit together, that defense we conclude counsel during “suggestion” and his silence those late-night jury object pro- failed to finding of opportunities support a waiver ceedings consequently, has waived re- See, Mack, e.g., of this issue. State v. contrary conclusion view this issue. (La. 1983) (“It Ct. So.2d of Criminal Appeals reached the Court noted, however, the defense should be hereby reversed. motion to did make a recess counsel Accordingly, any on this time date. defen- 2. Plain Error Review length complain now cannot dant if Even Court of Criminal unduly long.”); of trial State v. Schreiner, 742, Appeals 276 Neb. 754 N.W.2d had concluded that during argument noteworthy previously opinion, As It is oral 4. referenced Court, alleged defense counsel that after two- conceded to this defense counsel recess, juror she made a comment hour his to the court was not statement during nap” ‘‘nice time. The had taken a proceedings continue until motion to upon comment to infer defense relied following day. juror fatigue.
901 (e)consideration review, it of issue for could have the error is waived the “neces- sary justice.” to do substantial plain nonetheless considered whether er analysis applicable ror the facts was under (citations Martin, 505 at 504 omit- S.W.3d “ any to examine error occurred. ted). whether presence of all five factors ‘[T]he Appellate courts in Tennessee have “the must be established the record before authority ‘consider that has this recognize to an error Court will the existence of error, plain party complete of at of rights affected the substantial consideration necessary all the factors is not it time, when is any though the error was not even clear from the record that at least one raised in the motion for a new trial or factors cannot be established.’” Id. assigned v. appeal.’” as error State (citations omitted). any “‘If one these (Tenn. 2015) Knowles, 416, 470 S.W.3d 423 satisfied, is factors we not need consid- 36(b)). (quoting P. re Tenn. R. “We ” (cita- remaining er the factors.’ Id. at 505 discretionary fer this consideration “ omitted). asserting plain tions er- ‘When ‘plain as error’ waived issues review.” ror, the defendant bears the burden Knowles, 423; see also 470 S.W.3d at persuading appellate that State, 208, 219 v. 297 S.W.3d Grindstaff plain trial court committed error and that (Tenn. 2009). is n.12 “Plain error” review magnitude the error was of sufficient that lodge fails to also available when counsel of, changed outcome probably contemporaneous objection the issue when (citations omitted); trial.’” Id. see also Thomas, v. first arises. State Willis, 496 S.W.3d 707 (Tenn. 2005). “To rise app. 2016) (citations omitted) (noting error, plain error would have [a]n level persuading bears burden nature, especially egregious [be] exists). appellate plain an court that error very striking at the heart of the fairness examining plain er Before whether Martin, judicial proceeding.” State v. exists, begin premise with ror (Tenn. 2016) (altera upon it is the defendant this incumbent (internal original) tions in marks quotation persuade appellate an court that case omitted) Banks, 271 (quoting State v. occurred that sufficient plain error (Tenn. 2008)). 90, 127 change the outcome of the trial. The defen Tennessee, In court will appellate plain as a not assert error basis did dant plain only if grant relief error brief, argue nor she for review her did (a) clearly plain what the record establishes this error should before court; Nonetheless, grant
occurred in the trial
her relief.
operate
our
the record leads us
(b)
unequivocal
a clear and
rule of law
plain
inapplicable
error is
conclusion
breached;
has
in this case.
(c)
right
accused
a substantial
requisite
one of
five
Notably,
least
affected;
adversely
has been
from
case.
missing
this
There is
factors
(d)
unequivocal
on this
the issue
law
the accused did not waive
lack
clear and
reasons;
subject.5
review to be
Even
standard
tactical
case,
appeal.
States Su
upon
The United
In
we are
called
the time
an error
preme Court held in
announced in
Henderson
decide whether
the rule
States,
meaning of
"plain”
the federal
United
within
Henderson v.
U.S.
rule,
52(b),
(2013), applies
plain
error
Fed. R. Crim. P.
S.Ct.
applied Hembree, 1409836, at *12. In 2016 urges us WL unsettled. State review discretion, infra, trial court see while the counsel of defense' addressed abuse presume midnight they should could no argues that at and stated that defense process longer Some assistance due violation. render effective because constitutional Hembree, late-night proceedings “thinking clearly.” they indicate were cases not conducted under 546 only proceeded be at court should unusual S.W.2d circumstances, other cases infra, from despite see while with assertions these allowing court Reasoning the trial discretion favor hour “[t]he Id. last counsel. courtroom, in the proceedings thereof,” portion direct of a trial is an essential see the Hembree Hembree’s court reversed infra. conviction. at 242-43. The Hembree Id. of supra, the standard review noted As opined court further “absent went courts when by appellate be utilized circumstances, the compelling unusual and late-night of ascertaining propriety permitted be to listen should not The' proceedings court unclear. State Id. evidence until 1:00 a.m.” recognize inher urges a trial court’s us pro manner of ent direct discretion contrast, way parties in this By of both apply in the courtroom thus ceedings proof case rested their cases of See State abuse discretion standard. an had been concluded when the defendant’s (“Reid I”), 247, 301 app. 91 Reid S.W.3d v. counsel in the Defense medical arose. Poe, 41, (Tenn. 2002); State v. 755 S.W.2d that be- suggestion instant case made a (Tenn. 1988); Simon, 635 State v. 47 trip hospital to the cause the defendant’s 1982). (Tenn. 498, Although 505 S.W.2d be it would be better protracted, could cite a standard did not review again following morning. He resume brief, adopted reasoning she made that statement around four Appeals of Criminal and further the Court in the He did not o’clock afternoon. hour pre argued to this Court that we should request again. the issue raise He did violation process a constitutional due sume adjournment fatigue to counsel an due should The Court rebut. longer perform indicate that could he no opinion, Appeals, in its stated Criminal fact, effectively. during ensuing In circumstances,” finding that a of “unusual instruction, deliberation, jury hours agreement parties' of all coupled with the break, question, refreshment counsel and. necessary jurors, be before should again or allege did the issue raise late-night sessions are conducted. Moreover, fatigue. Criminal the Court 1409836, *13-14; Walls, at see 2016 WL Appeals “abuse apply the of discre- did not 28, Parton, 33-34 also State v. 817 S.W.2d tion” case when standard 1991); (Tenn. v. App. State McMul Crim. by court erred concluded (Tenn. lin, 826, App. 832 Crim. allowing jury to into listen evidence 235, 1990); State, 546 Hembree v. Walls, 2016 night. the late hours 1976). 242-43 Crim. factually at *14. This case is WL distinguishable from Appeals procedurally The Court relied Criminal 242-43, Hembree, upon 546 at Hembree. Henderson, plain ‘plain’ error con 568 U.S. be at the time time trial. ”) (concluding (quoting United 133 1121 sideration’ Johnson S.Ct. "that States, legal question S.Ct. settled or U.S.
.whether a unset (1997)). trial, enough ‘it the time L.Ed.2d tled at Hembree, Neither is the Parton Relying on of Crim- the Court case cited inal-Appeals subsequent in a case “sub- Appeals Criminal instructive *11 validity.” -to of the rule set [the] scribe[d] Parton, this issue. 817 at 31. In the compelling forth therein that absent a rea- began criminal trial and on concluded the son, the court should not have schedule Id. day. Jury same selection approx lasted McMullin, rigorous as it been was. hours,- imately two to three then trial the Although at 827. 'the trial court court heard substantive motions before the cited as circumstances the facts unusual Id. proof began. The -trial court indicated jury sequestered, that the- jury the was in early day the that it to finish intended women, comprised was of twelve the and day the case that of same because a con judge airplane trial an reservation the flict with the use of-the courtrooms the following the court nonethe- day, appellate Id. following day. at 33. State called unpersuasivé in less those reasons found Id. at its in eight witnesses in case chief. this context. Id. at 829-30. However, of -subjected 31. Each witness: to then was McMullin, is in exception notable that by attorneys, cross-examination three each interposed objection counsel at 10:30 co-defendant, representing a and redirect trial, p.m. night asking of the first the by the State. Id. at 32. The defense collec court to be in recess until 9:00 a.m. the tively called five witnesses. Id. at 31. The Id. morning. next at The trial 827-28. court court took trial recesses and a two dinner objection overruled continued the until Id. jury break. received the case-for Id. p.m. p.m. 11:45 828. At 6:10 at the 11:45 p.m. deliberation at and returned the trial, day second counsel asserted following,morning. verdict at 2:15 a.m. the “fatigued” night he was be- from late Id. fatigue “degree fore his and that will be Id. prejudicial” Proceedings the defense. objection No was made the lateness continued until received case , Rather, the hour. Court of Criminal 9:28 p.m., at and it returned a at verdict Appeals noted that defense counsel p.m. Id. at 828-29. 11:38 “obliquely” point, say- on the commented McMullin factually is procedurally “The ing, thing other I get wanted isdo judice. case sub distinguishable from the a little direction on what the wanted one, two,- lodged objec- Counsel not but I just do. mention wanted tions to the of the hour on lateness two I jury’s working long time. didn’t Id. at 831. The trial court nights. separate Id. know what the Court wanted do.” a row. Id. nights in held late sessions two After 32. with a verdict returned very Defense counsel also asserted the -guilty, for the counsel raised fatigued valid reason that he for, judgment time in his first motion fatigue prejudice he felt that his his would or, alternative,,a acquittal motion recog- McMullin client. court While Nonetheless, a new trial. Id. the Parton con- nized “both federal and state court concluded: judge power stitutions bridle the a trial . say We are unable in this case to in the exercise his or her discretion right appellant present has waived his setting sessions in crimi- after-hours appeal by timely this issue on not id. jury,” nal cases tried before' expressly objecting at trial. Such dis- nonetheless did not court’s review position to an would lead unfair result. decision that case for abuse discre- reasons, McMullin is plain hold that error tion. For We existed those not into conducting instructive in this case. trial court’s -trial early morning Appeals the issue under night April 5th and did late rather April con- “abuse of discretion” standard but Appellant’s hours of meritorious, grant upon “plain as to this issue error” the de- tention relied be ordered. and a new must relief. fendant omitted). (citations The court Id. at 35 courts Intermediate reasoned, of whether counsel “Regardless law; must last “court[] follow any juror night ses- objects, the late ... its inexorably bound resort avoided; they must be should be sions precedents own but will follow the rule circum- justified because of unusual it has law which established earlier *12 question .... [T]he stances threshold cases, clearly convinced that unless always by must be determined ” originally rule was erroneous.... Frazier justify court whether the circumstances 2016), State, 246, (Tenn. v. 495 253 S.W.3d the unusual session.” Id. at 33-34. - (citations denied, omitted), U.S. cert. of While we note that the lateness -, 2163, 237 S.Ct. 198 L.Ed.2d 137 justified by the trial that case was (2017). cases, In this has several Court courtrooms, scheduling Par- the conflict applica cited “abuse of discretion” adopted this ton was decided before applied of to this ble standard be review five-prong determining for test wheth (“Reid II”), v. Reid 213 issue. See State of er an error at trial rose to the level (Tenn. 792, 2006); I, app. S.W.3d 826 Reid prior plain error therefore utilized 301; Poe, 91 app. 755 S.W.2d S.W.3d Smith, 24 precedent. See State v. S.W.3d 47; However, Simon, 635 at 505. S.W.2d 274, (Tenn. 2000). 1991, In when 282-83 expressly required this Court has never decided, plain analy Parton was error of showing unusual circumstances before sis was on “the and circum based facts late-night can sessions be held.6 There is particular case.” State v. stances unequivocal lack of a clear and rule of law (Tenn. 1984). 58, Ogle, 666 61 Gen S.W.2d concerning night proceedings; late “unfairness,” more, will not eral without accordingly, no such rule could have been pursuant plain suffice to excuse waiver case, plain breached in this error thus are not con error review after Smith. We applied grant herein to review cannot be same would have fident result the defendant relief. plain error been reached had the current case, law,7 applied. In Parton To settle area we analysis been again legal note that the Court Criminal now conclude that the correct stan- reviewing application I in both Reid and to consider when an It should be noted that 6. II, adopted this Court the conclusion appeal. App. Reid permission to Tenn. R. P. 11. appendi- Appeals in the the Court Criminal One of these criteria allows this Court to Appeals correctly ces. The Court of Criminal grant permission appeal if there is “need standard; applied the abuse how- of discretion Supreme super- for the exercise of the Court’s ever, McMullin, thereby it cited Hembree See, 11(a). visory authority.” Tenn. R. P. implicitly approving requirement of un- 513, State, e.g., Bryant & v. 460 S.W.3d 527 Walls, 2016 WL usual circumstances. (Tenn. 2015) (affirming of Crim- n.9 the Court 1409836, at *13. petitioner Appeals’ inal conclusion that prove performance had failed deficient Although regarding appro- our decision proceed- post-conviction counsel in case but technically priate standard of review is not ing prejudice nonetheless to address the necessary appeal, to resolve this our decision prong uniformity of “to secure decision” inappropriate ei- to address this is not among panels appellate court with re- Appellate Proce- ther. Rule 11 of the Rules gard necessity sets forth several criteria for this Court to the instructions dure
905 Davis, 2016) State v. (citing 49, a trial court reviewing whether 466 dard conducting late-night proceedings (Tenn. 2015)); Smith, errs in see also State v. 61 “A trial court is abuse discretion.8 abus (Tenn. 2016). 492 S.W.3d applies its discretion when incor es legal standard,
rect
reaches a conclusion
CONCLUSION
on a
logical,
bases its decision
We conclude that
the defendant has
clearly erroneous assessment
the evi
appellate
waived
this issue and
dence,
reasoning
or uses
that causes an
plain
error review is not applicable to
injustice
complaining party.”
to the
Davidson,
grant
from her
relief
Ae-
convictions.
v.
offenses),
day
evening
overruled
v.
or continued into the
is a deci
lesser-included.
State,
(Tenn. 2016);
Moore v.
cordingly, judgments justiciability we reverse the ferred doctrines. Norma Appeals. Faye Pyles Lynch Family Purpose Court Criminal further -We LLC appropriate Cnty., conclude standard 202 Putnam appellate late-night pro- Wilson, court 2009); review see also State v. 70 Tenn. ceedings (1879) of 204, discretion. Costs (holding abuse court’s defendant, appeal .are taxed decide, advise, is to and to settle role' Walls, for may execution is- Susan rights, opinions). not give abstract necessary. if sue doctrines, in- justiciability Tennessee’s Lee, J., cluding advisory opin- on separate prohibition Sharon G. filed a ions, concurring opinion. understanding are rooted our our'respect role for the judiciary’s Lee, J., concurring Sharon G. result powers in the separation doctrine only. justi- Tennessee Constitution. Tennessee’s I only concur in the result in this case. ciability justiciability doctrines mirror the is not to a entitled new trial doctrines relied United States plain based and the waiver absence Supreme courts. Norma federal majority by proceeding error. errs LLC, Faye Lynch Pyles Family Purpose establishing further (citing 13 Charles 202-03 regarding late-night of review standard al., Wright Alan Federal et Practice By proceedings. addressing ap- (3d 2008); § 3529 ed. Procedure Barbara pellate guise standard under Tennessee, Justiciability in Kritchevsky, plain analysis, majority of a error over- Limits, Part One: Mem. Principles longstanding, reaches and violates conser- (1984)). general- L. n.5 St. U. Rev. See prohibitions advisory on issuing vative *14 ly Federal Chemerinsky, Erwin Jurisdic- opinions. (7th 2016) (summariz- tion, §§ 2.1-2.6 ed. majority The its anal have ended should doctrines). ing justiciability We federal ysis once it determined was may only justiciable decide issues—issues Instead, not to a new trial. entitled concrete, involving that are definite and forged appellate ahead establish the legal relationship parties between with late-night proceed for standard interests. Aetna adverse Ins. Co. legal Life ings—an necessary not issue that for was Haworth, Conn. v. 300 Hartford, U.S. By addressing of the case. the resolution 227, 461, 240-41, 81 57 S.Ct. L.Ed. 617 issue, majority the estab violated (1937). lished rule that courts are not render advisory opinions legal or decide abstract justiciability doctrines dictate exer questions. State v. Brown & Williamson restraint, judicial cising “[w]hat 186, (Tenn. Corp., Tobacco 18 192 S.W.3d to, say opinion should be confined 2000) Super (citing Flea Chatta Mkt. by, and limited facts of case under Olsen, 449, nooga, v. 451 Inc. 677 S.W.2d questions necessary consideration and (Tenn. 1984); State, State ex Lewis v. rel. State, that case.” Staten v. decision of 47, (1961)). 534, 208 Tenn. 49 347 S.W.2d 18, 157, (1950) 191 Tenn. 232 19 S.W.2d added). right (emphasis A
“The courts this State have no court overreaches Lewis, opinion.” going beyond point necessary advisory render an for a 347 Id.; long pending at 48. courts have in a see S.W.2d Tennessee’s decision case. also Christ, recognized.and self-imposed prin- L. M. followed Church God Inc. v. Ministries, Inc., ciples judicial restraint, commonly Haley No. re- W2015-00509-
907 146, n.18, 2017 SC-R11-CV-531 (Tenn. 21, IN RE 4183065, BENTLEY D. Sept. *18 n.18
WL J.) 2017) (Clark, (finding appeal prior Tennessee, Supreme Court nonjusticiable presenting purely case AT KNOXVILLE. questions legal hypo based theoretical October facts); Session Schofield, West v. thetical' Heard at (Tenn. 2015) Nashville (Bivins, 131-32 J.) prisoner’s con (ruling that condemned FILED 11/22/2017 challenge protocols stitutional of execution “speculative” present “not and did Teal justiciable controversy”); v. Criminal Tenn., Shelby Cnty., No. W2011-
02126-CCA-R3-CO, WL (Tenn. 13, 2012) (Page,
*2 Crim. June
J.) (“The justiciability prompts doctrine stay
courts to their hand cases do genuine existing contro involve requiring present adjudication of
versy Meri,
present rights.”); Mohammad No.
W2011-01593-COA-R3-CV, 2012 WL App. May at *5 Ct.
2012) J.) (“It (Kirby, well-settled adjudicate role of the Court is to legal rights, give not to abstract or
resolve
advisory opinions.”). analysis of majority’s review, being advisory,
standard of is dic- is, therefore, binding authority It
ta.
precedent within the rule stare decisis.
Staten, (citing at 19 C.J.S. 190). §
Courts No matter how “convenient *15 party ques- for either desirable authoritatively
tions ... for fu- be settled guidance, justified is not
ture
violating principles judicial fundamental Lewis,
procedure gratify that desire.” (quoting at 48 Pac. Co. v. S. (N.D.
Eshelman, 227 F. Cal.
1914)). reasons,
For only these I concur in the
result reached in this case.