IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 5, 2006 Session Heard at Chattanooga1
STATE OF TENNESSEE v. CLINTON BURNS, III
Appeal by permission from the Court of Appeals
Criminal Court for Knox County
No. 78802 Ray L. Jenkins, Judge
No. E2004-01632-SC-R11-JV - Filed on September 25, 2006
We accepted this appeal to determine whether a juvenile charged with being delinquent by virtue of
having committed an offense which would be a felony if committed by an adult is entitled to a jury
trial on appeal de novo to circuit court. We answer that question in the negative. Accordingly, we
reverse the judgment of the Court of Appeals.2
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed.
CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., AND
E. RILEY ANDERSON , ADOLPHO A. BIRCH , JR., AND JANICE M. HOLDER , JJ., joined.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Steven
Sword, Assistant District Attorney General, for the Appellant, State of Tennessee.
Mark E. Stephens, District Public Defender, and Robert C. Edwards, Assistant Public Defender, for
the Appellee, Clinton Burns, III.
Jerry P. Black, Jr., and Wade V. Davies, Knoxville, Tennessee, for the Amicus Curiae, Tennessee
Association of Criminal Defense Lawyers.
1
Oral argument was heard in this case on May 5, 2006, in Chattanooga, Hamilton County, Tennessee, as part
of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
2
In the criminal court Defendant filed a motion to suppress the victim’s identification of him. This motion was
denied. The Court of Appeals affirmed the judgment of the trial court. Application for permission to appeal this issue
was denied. Accordingly, we reverse only that portion of the Court of Appeals’ judgment which reverses the trial court.
OPINION
FACTS
On September 22, 2003, the Check Cash store on Broadway in Knoxville was robbed at
gunpoint. On September 24, 2003, the State filed a petition in the Knox County Juvenile Court
charging Clinton Burns, III, (“Defendant”), a minor, with being delinquent by virtue of having
committed the crime of aggravated robbery. A juvenile court referee found Defendant to be
delinquent and placed him in the custody of the Department of Children’s Services. That decision
was ratified by the juvenile court judge. Defendant filed a timely appeal to the Knox County
Criminal Court and requested a trial de novo before a jury.
The State subsequently filed a pleading contending that Defendant was not entitled to a jury
trial in his de novo appeal from the juvenile court.3 After hearing argument, the trial court ruled in
the State’s favor. Thereafter, Defendant was tried before the criminal court judge on June 3, 2004,
and June 9, 2004. At the conclusion of the trial, the trial judge found Defendant guilty of aggravated
robbery beyond a reasonable doubt and affirmed the judgment of delinquency and the disposition.
On appeal, the Court of Appeals reversed on the jury trial issue, finding that, under the
Tennessee Constitution, a juvenile is entitled to a jury trial on appeal of his or her delinquency
proceeding to circuit or criminal court. We granted review to determine whether, in light of United
States Supreme Court jurisprudence holding that there is no right under the federal constitution to
a jury trial during the adjudicative phase of juvenile proceedings, a juvenile has a right to a jury trial
on de novo appeal under the Tennessee Constitution.
STANDARD OF REVIEW
The resolution of this appeal involves an issue of constitutional interpretation, which is a
question of law. Therefore, the standard of review is de novo without any presumption of
correctness given to the legal conclusions of the courts below. S. Constructors, Inc. v. Loudon
County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
ANALYSIS
The right to a jury trial may stem from guarantees in the state or federal constitutions, or it
may be statutorily based. Our statutory scheme dealing with juvenile courts and proceedings
provides that hearings by juvenile courts “shall be conducted . . . without a jury.” Tenn. Code Ann.
§ 37-1-124(a) (2005). Appeals from juvenile court “may be made to the criminal court or court
having criminal jurisdiction that shall hear the testimony of witnesses and try the case de novo.” Id.
§ 37-1-159(a) (emphasis added). No statutory provision for a jury trial in such de novo appeals
3
Juvenile defendants are entitled to an appeal from “any final order or judgment in a delinquency proceeding
. . . to the criminal court or court having criminal jurisdiction that shall hear the testimony of witnesses and try the case
de novo.” Tenn. Code Ann. § 37-1-159(a) (2005).
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exists. Accordingly, the existence of any such right in Tennessee must arise from either the federal
or state constitution.
In Arwood v. State, our Court of Appeals held that a juvenile defendant was entitled to a jury
trial under Defendant’s circumstances. 463 S.W.2d 943, 946 (Tenn. Ct. App. 1970). The
intermediate court based its holding upon several decisions by the United States Supreme Court,
including In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970); and Duncan v.
Louisiana, 391 U.S. 145 (1968). Upon its interpretation of those cases, the Court of Appeals opined,
“there is, as we see it, no constitutionally sufficient reason to deprive the juvenile of the right to a
jury trial where the charge of delinquency brought against him is predicated upon the commission
of an offense declared to be a felony by the Legislature of the State of Tennessee.” Arwood, 463
S.W.2d at 946. The Court of Appeals based this conclusion upon principles of federal constitutional
jurisprudence.
Approximately one year later, the United States Supreme Court issued McKeiver v.
Pennsylvania, 403 U.S. 528 (1971) (plurality opinion). In that case, the high court was asked to
determine “whether the Due Process Clause of the Fourteenth Amendment assures the right to trial
by jury in the adjudicative phase of a state juvenile court delinquency proceeding.” Id. at 530.
Although the Court considered the same cases construed by our intermediate appellate court, as well
as others, it reached a contrary conclusion: “trial by jury in the juvenile court’s adjudicative stage
is not a [federal] constitutional requirement.” Id. at 545 (emphasis added). In the lead opinion,
Justice Blackmun provided several reasons for this conclusion, including (a) the possibility that
requiring a jury trial would “remake the juvenile proceeding into a fully adversary process,” id.; (b)
the Court’s past recognition that “a jury is not a necessary part even of every criminal process that
is fair and equitable,” id. at 547; (c) its recognition that the “imposition of the jury trial on the
juvenile court system would not strengthen greatly, if at all, the factfinding function, and would,
contrarily, provide an attrition of the juvenile court’s assumed ability to function in a unique
manner,” id.; and (d) the Court’s fear that imposing jury trials would impede the States from
“experiment[ing] further and . . . seek[ing] in new and different ways the elusive answers to the
problems of the young.” Id. Justice Blackmun’s opinion concluded: “If the formalities of the
criminal adjudicative process are to be superimposed upon the juvenile court system, there is little
need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the
moment we are disinclined to give impetus to it.” Id. at 551.
The McKeiver decision undercut the federal constitutional foundation of our Court of
Appeals’ holding in Arwood and leaves us with the question of whether the Tennessee Constitution
guarantees Defendant the right to a jury trial upon his de novo appeal to circuit court.
To date, this Court has not squarely addressed this issue. This Court has, however, referred
to Arwood with apparent approval in several cases. For instance, in State v. Strickland, 532 S.W.2d
912 (Tenn. 1975), this Court was called upon to decide whether a juvenile was entitled to a jury at
a transfer hearing in juvenile court. In the course of answering that question in the negative, the
Court distinguished Arwood but, in so doing, stated in passing that “there is no question about the
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soundness of the Arwood decision.” Strickland, 532 S.W.2d at 921. No mention was made of
McKeiver. Significantly, the Strickland court did not address the issue before us today.
Subsequently, in State v. Johnson, 574 S.W.2d 739 (Tenn. 1978), this Court addressed the
issue of whether a juvenile waived his right to a jury trial on de novo appeal by failing to demand
a jury trial pursuant to the Rules of Civil Procedure. In that opinion, the Court simply assumed that
juveniles had a right to a jury trial on de novo appeal to circuit court. In making this assumption,
the Court relied upon the Arwood holding and noted that “the State makes no issue on that point.”
Id. at 741. Thus, the actual issue before us today was not at issue in Johnson. Accordingly, the
Johnson decision does not stand for the proposition that the Tennessee Constitution grants Defendant
a constitutional right to the jury trial sought in this case.
Approximately two years later, this Court referred to the Johnson opinion in State ex rel.
Anglin v. Mitchell, 596 S.W.2d 779, 789 (Tenn. 1980). In the Anglin case, this Court determined
that “‘the law of the land’ provision of Article I, Section 8 of the Constitution of Tennessee does not
permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates
to confine him or deprive him of his liberty.” Id. at 791. In reaching that conclusion, the Court
conducted a thorough review of the development of juvenile law. In so doing, it construed Johnson
as holding that, under the Tennessee Constitution, a juvenile charged with an offense otherwise a
felony was entitled to a jury trial on de novo appeal to the circuit court. Id. at 789. Upon a close
reading of Johnson, we conclude that the Anglin court characterized mere dictum as a holding of
constitutional proportions.
Our careful analysis of these and other cases makes clear that, despite this Court’s past
reluctance to criticize Arwood while determining other and distinct issues, we cannot rely on Anglin,
Johnson, or Strickland as precedent for the correct disposition of the question before us today.
Article I, section 8 of the Tennessee Constitution provides that “no man shall be taken or
imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any
manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the
law of the land.” Known as the “law of the land clause” in Tennessee, the State argues that this
section provides the same guarantees as the federal due process clause. Accordingly, the State
posits, this Court should follow the United States Supreme Court’s holding in McKeiver and find
that Tennessee’s law of the land clause does not entitle Defendant to a jury trial in his de novo appeal
to circuit court. We agree.
This Court has declared repeatedly that Tennessee’s law of the land clause “is synonymous
with the due process provisions of the federal constitution.” Lynch v. City of Jellico, Nos. E2006-
00208-SC-R3CV, E2006-00207-SC-R3CV, 2006 WL 2494170, at *4 (Tenn. Aug. 30, 2006).
Accord City of Knoxville v. Entm’t Res., LLC., 166 S.W.3d 650, 655 (Tenn. 2005); Mills v. Wong,
155 S.W.3d 916, 921 (Tenn. 2005); Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 711 n.4 (Tenn.
2003); Daugherty v. State, 393 S.W.2d 739, 743 (Tenn. 1965). We recognize, of course, that “[i]n
the interpretation of the Tennessee Constitution, this Court is always free to expand the minimum
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level of protection mandated by the federal constitution.” Doe v. Norris, 751 S.W.2d 834, 838
(Tenn. 1988). We also recognize, however, that our juvenile court system is a creature of our
legislature, born long after the law of the land clause. As evidenced by our current statutory scheme,
our legislature has determined that, while they are still within the juvenile court system, our juveniles
are to be tried by judges, not juriesSeven upon de novo appeal. Should the legislature choose in the
future to provide the option of a jury trial during some or all of juvenile proceedings, it may, of
course, do so. We are not convinced, however, that Tennessee’s law of the land clause mandates
jury trials in this context.
We stress that the system for dealing with juvenile offenders as juveniles is separate and
distinct from the criminal justice system. On those occasions when a juvenile is transferred to
criminal court to be tried as an adult, he or she is afforded the full panoply of constitutional rights
accorded to criminal defendants, including jury trials. Defendant in this case is not, however, being
tried as an adult. He is being tried within the context of a system that was designed to avoid much
of the trauma and stigma of a criminal trial. See Tenn. Code Ann. § 37-1-101(a)(2) (providing that
one of the purposes of juvenile proceedings is to “remove from children committing delinquent acts
the taint of criminality and the consequences of criminal behavior and substitute therefor a program
of treatment, training and rehabilitation”). We agree with the United States Supreme Court that “one
cannot say that in our legal system the jury is a necessary component of accurate factfinding.”
McKeiver, 403 U.S. at 543 (emphasis added). A jury’s “necessity” is further attenuated in the
context of juvenile delinquency proceedings, which are aimed not at punishing the youthful offender,
but at rehabilitating him. We are also persuaded that the McKeiver decision is correct in its concern
for the juvenile court’s “ability to function in a unique manner” in the absence of a jury. Id. at 547.
Finally, we agree with Justice Blackmun’s observation that, “[i]f the formalities of the criminal
adjudicative process are to be superimposed upon the juvenile court system, there is little need for
its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment
we are disinclined to give impetus to it.” Id. at 551.
Accordingly, we conclude that Defendant is not entitled under article I, section 8 of the
Tennessee Constitution to a jury trial upon his de novo appeal to circuit court following the juvenile
court’s finding him delinquent by virtue of having committed an offense which would be a felony
if committed by an adult.
Alternatively, Defendant asks this Court to recognize his right to a jury trial under article I,
sections 6 and 9 of the Tennessee Constitution. As this Court has previously recognized,
Article I, section 6 of our Constitution does not guarantee the right to a jury
trial in every case. The text of that provision reads, “[t]hat the right of trial by jury
shall remain inviolate, and no religious or political test shall ever be required as a
qualification for jurors.” This right has been interpreted to be a trial by jury as it
existed at common law, Marler v. Wear, 117 Tenn. 244, 246, 96 S.W. 447, 448
(1906), or more specifically, “the common law under the laws and constitution of
North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”
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Patten v. State, 221 Tenn. 337, 344, 426 S.W.2d 503, 506 (Tenn. 1968), cert. denied,
400 U.S. 844, 91 S.Ct. 88, 27 L.Ed.2d 80 (1970). For rights and remedies created
after the formation of our Constitution, the legislature is free to enact procedures that
do not include jury trials. Newport Housing Authority v. Ballard, 839 S.W.2d 86, 88
(Tenn. 1992).
Helms v. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn. 1999). As previously noted, juvenile
proceedings are statutory: they did not exist under common law. This provision of our Constitution
is therefore inapposite. Section 9 provides a right to a jury trial “in all criminal prosecutions.” This
provision is likewise inapposite because juvenile proceedings are not “criminal prosecutions.” See
Childress v. State, 179 S.W. 643, 644 (Tenn. 1915) (recognizing that “proceedings before a juvenile
court do not amount to a trial of the child for any criminal offense” and that “the proceedings in a
juvenile court are entirely distinct from proceedings in the courts ordained to try persons for crime”).
CONCLUSION
We hold that juveniles adjudged delinquent on the basis of an offense which would be a
felony if committed by an adult are not entitled by the Tennessee Constitution to a jury trial upon
their de novo appeal to circuit court. Prior cases holding otherwise are hereby overruled. The
judgment of the Court of Appeals is reversed.
It appearing that Defendant, Clinton Burns, III, is indigent, the costs of this cause are taxed
to the State of Tennessee, for which execution may issue.
_______________________________
CORNELIA A. CLARK, JUSTICE
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