*1 892
ations which death or injury Appeals’ threatened Court of Criminal judgment revers- during ing occurs dismissing commission certain appellee’s conviction felonies, felony-murder we conclude that to for attempted extend felo- is affirmed. ny-murder rule to cases which no death occurs would “extend scope ANDERSON, C.J., doc- DROWOTA, beyond pale
trine design its REID, WHITE, JJ., concur. logical State, underpinnings.” Head v. 44, (Ind.1982). course, 443 N.E.2d 51 Of
goes saying without that if an accused actual-
ly possesses kill, requisite intent to he or may charged attempted
she murder. simply logically believe that it is legally impossible attempt perpetrate Tennessee, Appellee, STATE of killing. an unintentional v.
Every jurisdiction that has addressed the
question
attempt
LYNN,
whether
felony-
Appellant.
to commit
Clark
has,
murder
as an
exists
offense
with but a
Tennessee,
Supreme Court of
single exception, held that
it does
exist.
at Nashville.
Patterson,
People
610,
Cal.App.3d
v.
209
257
(1989);
Cal.Rptr.
Gray,
407
v.
State
654
10,
June
(Fla.1995);
Pratt,
So.2d 552
State v.
125 Ida
546,
(1993);
Viser,
People
ho
62 Ill.2d
Robinson,
133,
(1994);
Kan.
256
Bruce v.
317 Md.
(1989); Dahlstrom, 301, State v. 276 Minn. (1967);
150 Darby, N.W.2d 53 State 327,
N.J.Super. (Ct.App.Div. A.2d 733
1984); Price, State v. 104 N.M. 726 P.2d Burress,
857 (Ct.App.1986); People v. (1986);
A.D.2d
monwealth v. (1983); Bell,
A.2d 171
State v.
(Utah 1989); Carter, 44 Wis.2d (1969).
State, 266 Ark.
(upholding attempted felony- the offense of jurisdiction).
murder The courts in jurisdictions
these have concluded that it is
illogical that someone could intend to cause through negligence
someone else’s death may
even recklessness. While one reason
ably that a intentionally conclude defendant may
behaved a reckless manner and have victim,
intended to kill the it does not make say
sense to that a defendant intended to kill by being
the victim reckless.
We conclude that one cannot intend to
accomplish Consequently, the unintended. attempted felony-murder offense of does Accordingly, exist Tennessee. *2 Swafford, Peters, Peters &
Robert S. Winchester, Priest, Appellant. Burson, Attorney Gener- Charles W. Attorney Taylor, B. and Darían Assistant al General, Nashville, Appellee. OP/MON WHITE, Justice.
In this we must determine what effect case selec- a total failure follow procedures has a criminal trial. tion here, conclude circumstances Under the comply impor- with those the failure admin- prejudicial to the tant justice. Consequently, istration of we re- sion until the completed.3 trial was After a verse the conviction five-day and remand this case for Lynn convicted a new criminally discuss the other negligent Lynn issues homicide. they raised on in the event reoccur on years Range sentenced to two as a 1 stan- retrial. dard offender. *3 trial,
In the motion for new coun- defense challenged procedure sel impaneling the FACTS rulings. other At on hearing the the motion Appellant, Lynn, charged Clark was with trial, for presented new defense counsel the first-degree the murder of Joe Webb who testimony. clerk’s The court denied the mo- was killed when he was struck from behind tion. during Lynn’s an altercation Warren County tavern. When the first trial resulted appeal, On direct the of Court Criminal mistrial, in a the state amended the indict- Appeals judgment. affirmed the trial court’s charged Lynn second-degree ment and The court concluded that violations the of murder. A new trial begin was scheduled to statutory procedure selecting, summon- 18, on November 1992. Before the the ing, impaneling jury the were of judge hearing regarding allega- conducted a Furthermore, consequence. the court con- jury tampering. of Ultimately, tions the substantial, technical, cluded that albeit not judge found evidence that the entire venire compliance with Tennessee Rules of Criminal side, was tainted. Without notice to either 24(g) accomplished. Procedure been had judge the directed clerk the to draw new names for jurors a venire from which would ANALYSIS be selected. granted appellant’s application for
On either November the clerk permission of to consider whether a office, the court took the box into his jury impaneled verdict rendered in di it, unsealed and drew sufficient names to rect contravention and violation of state law special jury panel. constitute a The sheriff despite must set aside the absence of jurors. proof summoned the new On November prejudice. of actual Because strict entirely defense counsel learned that an statutory jury proce adherence impaneled.1 new venire had been On No- dures is essential to the of vember counsel filed a judicial motion chal- instilling public lenge procedures, quash the selection justice, confidence the administration of special jury panel, request and to a list of proof we hold that of actual not jurors. new On November before the required in circumstances such as this when selection, beginning provid- unreasonable, the clerk flagrant, deviation is jurors. ed counsel with a list unnecessary. Selection commenced and completed was on November Special A. Selection of Venire clerk, defendant, swearing jury, state, judge
Before
The
arguments
heard
on
Appeals,
defendant’s motion to
the Court of Criminal
and this
quash
panel.2
prescribed
agree
Over the
Court
state’s
objection,
judge accepted
impaneling
existing panel
defense
once an
suggestion
disqualified
counsel’s
that he defer the deci-
or determined to be inade-
strategy
1. The record does not disclose how defense
3.The
dissent deems this trial
invited,
part
counsel learned
the existence of the new veni-
of the defense to have
excused,
and there-
re.
resulting
fore
error. Because
the fundamental nature of the error and the
overwhelming importance
pro-
apparent
arguments
It is
from the
cedures,
agree.
we cannot
While we do not
impaneling
and counsel had discussed the
hearing,
strategy,
ignore
procedures prior
sanction
neither can we
to the actual
as de-
prescribed proce-
fense
counsel references
“earlier confer-
wholesale deviation from
ence.”
dures.
opened
the clerk’s
the box. The box
quate were not followed in this ease.
office,
pres-
open
procedures,
out in
Anno-
court and
set
Tennessee Code
22-2-308,
clerk,
judge,
judge.
are as follows:
not the
tated Section
ence of the
names and resealed
box. Nei-
drew the
dis-
In the
reason
event
panel
a new
party was advised that
ther
proposed jurors,
other
qualification
circumstances, unlike
being
These
drawn.
cause,
jurors can-
number
cases,
insig-
present
prior
are not an
those
venire,
not be obtained from
departure from technical
nificant
produce
open
shall
court the
Rather,
they represent
requirements.
box,
opened by
and the box shall be
complete
estab-
deviation
the directives
drawn there-
the court
there shall be
legislature.
court,
lished
our
from,
by the
the number
as directed
*4
by
judge
the
of names deemed
sufficient
presented by previous
The circumstances
shall,
juries.
if
complete
the
This
proce-
involving
jury impaneling
cases
the
grand
necessary, continue until the
integrity
impacted the
of
dure have seldom
juries
completed;
judge
petit
are
but the
of
venire. None of
the selection
an entire
following
the
of
last
of
court instead
the
prior
a situa-
this Court’s
decisions involve
procedure may,
judge
if
mentioned
the
statutory pro-
in
tion which the established
proper,
a
shall deem
furnish
sufficient
the
a venire were to-
cedures for
selection of
persons
number of
of
to be sum-
names
tally
Consequently,
disregarded.
none are
sheriff,
judge may, if
moned to the
or the
controlling in this case.
judge
proper,
the
thinks
sheriff
direct the
complete
prior
a
our
venire selection cases
to summon sufficient number
Three of
juries.
excluding
propriety
the
involve the
of
certain
jury
In
classes
service.
22-2-308(a)(2)
(1994
§
Rutherford
Ann.
Tenn.Code
State,
(1966),
219 Tenn.
panel published post list must be not eliminate and fact, specifically quirements. In ed under statute. does not substi Section 306 One required by requires published posted for the The that the and list tute other. list new are drawn. Tenn. required by and that the rule have amended as names statute (1994 Here, pur- Repl.). and serve Code Ann. 22-2-306 different contents different hausted, Exercising failing remaining jurors peremptory would still be or to exercise challenges illegal improperly not cure an selection of does venire. members of an selected special peremptories if are ex- venire. Even all special publish- list of the venire was cedures in this case mandated Tennessee posted. ed or This omission casts a Code further Annotated Sections 22-2-306 and -308 pall upon integrity of the constitute to the administration of justice. light judge’s circumstances, of the trial determi- Under such defen- nation that first venire dant’s conviction cannot Accordingly, was tainted. In stand. future requiring cases reverse and remand for a new spe- the selection of a venire, strictly cial clerks should adhere to Other C. Issues the posting requirements publishing and Section 22-2-306. Defendant has raised two other issues they which will briefly, may be discussed integrity judicial process of the upon well retrial. arise prejudiced by mandatory the deviation from statutory procedures affecting the selection evidentiary The first an issue. publication and special of members of a veni- challenges Defendant the introduction of Elrod, re. Unlike Wiseman where the hearsay references to a bat con baseball statutory procedure deviations from were paramedical tained in and medical records. relatively minor were unlikely either inadvertent Since it is that the same events will beyond retrial, necessitated circumstances during occur we need detail the control, court’s complicated selection method here unusual context which the totally disregarded However, attempt the law. No guidance, issue arose. we note 803(4) made publish post the names of per Tennessee Rules Evidence special Furthermore, venire. mits the circum introduction of statements made required purposes stances diagnosis modification of of medical and treat procedure. ment. exception The rationale for that hearsay persons rule is that who are We question do not seeking diagnosis medical and treatment will court officials in this Undoubtedly, case. make proper reliable statements to assure their motives and intentions were honorable. Livingston, medical care. State v. acknowledge they were called (Tenn.1995). The state perform infrequently procedure, an used admissible, however, only they ments are if impaneling that of venire. None- pertinent are reasonably diagnosis to both theless, explicit. proce- the statutes are instance, In treatment. judicial dures are detailed. This *7 witness, expert neurosurgeon, state’s a testi proceeding already by had been discolored that, treatment, purposes fied of it made judge’s the trial findings earlier of tam- no difference was hit whether victim with pering. principles The fundamental of im- a pool opinion baseball or a bat cue. This disinterestedness, partiality, and fairness are paramedic contradicted that contained in the case, this, more in even essential a as in report objection. which was admitted over previous a attempt to circumvent fair- retrial, Upon carefully should ness has occurred. in par consider whether the statement Often, public justice system in sees our 803(4) report require amedic’s satisfies the something substantially different from what ments. actually It appearance exists. is the that issue, In last chal his defendant often undermines resurrects faith in the lenges of a the inclusion instruction on system. promote public To in confidence criminally negligent homicide which he con system fairness of preserve and to tends is not a lesser included offense of system’s integrity eyes litigants in the second-degree of murder. The Court Crimi “justice public, satisfy ap- must Appeals nal issue did address this since States, pearance justice.” v. United Offutt objected proposed counsel had not 11, 13, 11, 13, 348 U.S. S.Ct. L.Ed. 11 However, 30(b) charge. Rule Tennes (1954). provides see Rules of Criminal Procedure firmly mind, principles
With these objection that the content failure make improper unnecessary we hold that of an instruction “shall not statutory jury pro- right deviations party assign of a basis of the Justice, dissenting. DROWOTA, of motion for objection support error in a as 30(b). This P. a Tenn. R.Crim. new trial.” the clerk majority that agree I with the Tennes rule Rule 51.02 is identical long which has failing see of Civil Procedure to choose Rules in this case erred allowing challenge in interpreted a been as with Tenn.Code special in accordance venire positive for new errors the motion trial 22-2-308(a)(2); agree I that the § also Ann. object despite the failure to the instructions publish by failing to the names of erred Corp., 563 Empire Rule v. Gas with Tenn.Code in accordance the venire (Tenn.1978); Henry 553-554 S.W.2d 22-2-306(b). agree, I howev- § cannot Ann. Burton, S.W.2d County Bd. Educ. v. (Tenn.1976). The Court er, majority’s 397-398 that these conclusion inter adopted a similar Appeals Criminal has require the defendant’s reversal of errors Haynes, pretation 30(g). of Rule Therefore, respectfully I dissent conviction. (Tenn.Crim.App.), perm, 84-85 S.W.2d majority opinion. from the denied, (Tenn.1986). instance, In this challenged positive a error defendant undisputed majority, it is As noted instructions, an error of omission. 16, 1992, counsel, on that November defense such, raised As Rule 30 the issue to be allows challenging filed a motion in the motion for new trial. panel had been selected. special which the issue, however, is without merit. contained, moreover, specific motion This Criminally negligent homicide is a lesser quash request that the trial court charge second-degree murder. State (Tenn.1996). Trusty, Crimi panel. After the nally in negligent homicide is also a lesser completed, before the was but second-degree pur cluded offense of murder sworn, arguments on court heard State, suant to the definition Howard insisting quash. motion Instead (Tenn.1979). at 308. rule his upon the trial court motion that that Criminally negligent requires homicide time, however, counsel asked defense that engage criminally negligent an accused until the in death. Tenn.Code the trial court to defer the decision conduct which results (1991 Repl.). §Ann. 39-13-212 Second-de accept- completed. trial court trial was gree knowing killing is a of another. murder timely objection by over suggestion, this ed (1995 Supp.). § Ann. Tenn.Code 39-13-210 only his client It was the State. after Our criminal code defines the mens rea counsel, in his motion convicted that defense negligence occurring person if a criminal that the trial court for new demanded intentionally, knowingly, recklessly. acts rule the issue. 39-11-301(a)(2)(1991 Tenn.Code Ann. Therefore, Repl.). requires offense an therefore, clear, It is that defense counsel knowingly necessarily the accused act ruling have issue could secured men includes offenses which accused’s *8 negligence. tal state was one of criminal began. he even That did not before trial judge properly charged trial in this my opinion, in only explained, can in do so be case. strategy: to counsel wished terms trial ruling preserve delay obtaining a in order CONCLUSION client ground case his a above, re- For forth the reasons set convicted.1 a new and remand for verse the conviction strategy,” however as- This sort of “trial law, tute, contrary directly to Tennessee BIRCH, C.J., ANDERSON and and REID, JJ., concur. appellant that an for it well established advantage of DROWOTA, J., permitted to take “will dissents. prepare. all in order There had not a continuance 1. Even if defense counsel marshaled be- simply the entire trial no reason conduct his on issue of the date evidence this litigating the technical selection issues. argued, first he could asked for fore motion was have committed, $50,000, errors which he himself or invit- should be or lesser for a amount ed, commit, against induced the trial all defendants.... consequence which were the natural his crystal think it is [W]e clear that [counsel] neglect own or misconduct.” Norris v. Rich- permitted capitalize should not be ards, 450, 81, 193 Tenn. their silence of the trial (emphasis original). Gentry See also court. Bakeries, Betty Lou 171 Tenn. 100 Norris, (1937); Sober, S.W.2d 230 Howard Inc. v. Similarly, here defense counsel “had it ful- Clement, Tenn.App. ly power” ruling within his secure a on the (1960); Ferrell, Tenn.App. Pickard jury selection issues before the trial. Yet he (1959); Appeal S.W.2d 288 C.J.S. postpone chose to until ruling after the (1995).
Error trial, day thereby conclusion making of a five Norris, supra, example is an excellent it much difficult trial more for the court to ease, the “invited error” rule. In that simply begin throw out the venire plaintiff brought against an action several represents, anew. Because action building collapsed defendants after a view, my manipulation court in husband; killed her returned a rule, above-quoted violation I would $50,000 verdict Although her favor. affirm judgments the Court Crimi- Tennessee single law that time Appeals nal and the trial court. against jointly
assessment all defendants tort, foreman, single
sued for a when verdict,
asked to began attributing read
precise amounts to each of the individual interrupted
defendants. The trial court
foreman, telling him that the law forbade division;
such a and he asked the foreman to
simply give total damages amount of INC., HOOVER, Petitioner/Appellant,
attributed to all the defendants. The fore- so, man did but counsel for each of the exceptions. defendants made formal The de- BOARD ZONING METRO OF fendants then filed motion for new APPEALS, al., Respon et asserting apportionment that the undertaken dent/Appellee. contravened law Tennessee thus illegal. rendered the verdict The trial Tennessee, Appeals Court of court denied motion. Section, Middle at Nashville. Court, appeal, citing
On after the “in- rule, rejected vited error” the defendants’ Jan. argument. We reasoned that: Appeal Permission to Denied If complained is illegal, verdict 10, 1996. Supreme Court June posi- results more the counsels’ own ‘neglect’ tive or ‘misconduct’ than the ac- pronouncing judg-
tion of
ment it. No doubt for one could any
moment that had counsel asked poll jury,
leave to or that the
permitted give retire further con- case, request
sideration to its but granted.
would have been The counsel
had it completely power their to have and re-examine their retire ver- damages
dict and if decide the amount