State v. King

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
MAY 3, 2000 Session

STATE OF TENNESSEE v. DEBIASI SIRNARD KING AND
DEWAYNE KING

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Hamilton County
No. 207729-207731 Douglas A. Meyer, Judge

No. E1998-00283-SC-R11-CD - Filed January 19, 2001

We granted review to determine whether the trial court committed reversible error by conducting
trial proceedings in violation of a common law rule that prohibits judicial functions on Sunday. The
Court of Criminal Appeals reversed the defendants’ convictions for second-degree murder and
remanded for a new trial, holding that the trial court violated a common law rule prohibiting judicial
functions on Sunday and that such proceedings were “absolutely void.” We conclude that
conducting judicial proceedings on Sunday does not violate the Tennessee Constitution or any state
statute and that the justifications for the common law rule are no longer sufficiently persuasive to
invalidate Sunday proceedings as a matter of law. We further hold that the issue of whether to
conduct judicial functions on Sunday rests within the discretion of the trial court. In exercising this
discretion, the trial court should be deferential to the preferences of the litigants, witnesses, jurors,
and attorneys; must be mindful of the need for every participant in a trial proceeding to be prepared
and rested; must respect and accommodate the genuinely-held religious view of any litigant, witness,
juror or attorney; and must weigh all of these concerns against whatever pressing need or compelling
interest may necessitate a Sunday proceeding. We conclude that the trial court abused its discretion
under the facts of this case and, therefore, affirm the result reached by the judgment of the Court of
Criminal Appeals on the separate grounds stated herein.

Tenn R. App. P.11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed; Judgment of the Trial Court Reversed

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER , and WILLIAM M. BARKER , JJ., joined.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W.
Smith, Associate Solicitor General; Michael J. Fahey, II, Assistant Attorney General; William H.
Cox, III, District Attorney General; and C. Leland Davis and Yolanda Mitchell, Assistant District
Attorneys General, for the appellant, State of Tennessee.

John Allen Brooks, Chattanooga, Tennessee, for the appellee, Debiasi Sirnard King.

Lisa M. Mack, Chattanooga, Tennessee, for the appellee, Dewayne D. King.

OPINION

Background

On June 25, 1995, the defendants, Debiasi and Dewayne King, along with Devon King, were
driving in a white Lincoln convertible in Chattanooga, Tennessee. When they drove by several
individuals in another vehicle, derogatory hand signs were exchanged.1 A short time later, the two
groups, still in their vehicles, encountered one another at another location. The defendants fired
shots at the other vehicle with a .380 handgun and an AK-47 rifle. One individual, Fernandos
Hawkins, was killed.

The defendants were charged with first-degree murder. On the second day of a lengthy trial,
Tuesday, July 23, 1996, the trial court alluded to the possibility of conducting proceedings on
Sunday. On the fifth day of trial, Friday, July 26, 1996, the trial court indicated that the sequestered
jury had expressed its desire to continue its work on Sunday. Counsel for defendants Debiasi and
Dewayne King objected. The trial court said that it would not require Sunday proceedings unless
counsel for the defendants agreed to do so.

On the following day, Saturday, July 27, 1996, Lisa Mack, counsel for the defendant,
Dewayne King, became ill, was unable to function, and had to leave the courtroom. When Mack
returned to the courtroom and was still unable to proceed, the prosecutor moved that the trial court
sever Dewayne King’s case from the others to allow the trial to continue. Counsel for all three
defendants objected on the basis that the defenses were intertwined and integral to one another. The
prosecutor then proposed that the trial court resume the trial the next day, Sunday, July 28, 1996.
Counsel for two of the defendants agreed; however, Lisa Mack indicated that while she felt
pressured, holding court on Sunday was preferable to having her client’s case severed. The trial
court granted the motion to sever Dewayne King’s case, but observed that Mack was having trouble
thinking due to her illness and commented that the ruling might change the following day.

On Sunday, Lisa Mack, counsel for Dewayne King, appeared and informed the court that she
was physically able to proceed. The trial court withdrew its order to sever and all three defendants

1
Although the testimony conflicted, there was evidence that the Kings were members of a gang and
that the individuals in the other vehicle were members of a rival gang.

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presented evidence in support of their defenses. The trial concluded the next day, Monday, July 29,
1996, with the jury finding Debiasi and Dewayne King guilty of second-degree murder and Devon
King guilty of voluntary manslaughter.2

The Court of Criminal Appeals reversed the convictions and remanded for a new trial after
concluding that the trial court violated a common law rule by holding the trial on Sunday, which
rendered the judicial proceeding “absolutely void.” We granted this appeal to review the viability
of the common law rule which prohibits judicial functions on Sunday.

Analysis

The prohibition against conducting court on Sunday is expressed in the Latin phrase, “dies
dominicus non est juridicus,” which means “Sunday is not a court day, or day for judicial
proceedings, or legal purposes.” Black’s Law Dictionary 542 (4th ed. (with Guide to Pronunciation)
1957). The origin of this prohibition was discussed by Lord Mansfield in Swann v. Broome, 3
Burrow 1595, 97 Eng. Rep. 999 (1764), which this Court summarized as follows in Moss v. State:

[Lord Mansfield] said that anciently the court sat on Sundays; that the
ancient Christians practiced this for two reasons: One was in
opposition to the [non-Christians], who were superstitious about the
observation of days and times, conceiving some to be ominous and
unlucky and others lucky; that therefore the Christians laid aside all
observance of days; that a second reason they had was that by keeping
their own courts always open they prevented Christian suitors from
resorting to [non-Christian] courts. But he further observed that in the
year 517 a canon was made forbidding the adjudication of causes on
Sunday; that this canon was ratified in the time of Theodosius, who
fortified it with an imperial constitution. He referred to other
subsequent canons adding other holy days. 3 These canons, it seems,
were received and adopted by the Saxon kings of England, and were
all confirmed by William the Conqueror and Henry II, and so became
part of the common law of England. In the course of time, other days
were disregarded as nonjudicial, but Sunday retained.

131 Tenn. 94, 100-101, 173 S.W. 859, 860 (1915).

2
Devo n King did not ap peal his co nviction.

3
These canons were enforced throughout the Christian world an d include d in the D ecretals of Gratian
in order “‘that all people may apply themselves on that day to prayer and serving God.’” State v. McElhinney, 100
N.E.2d 273, 278 (O hio Ct. App. 1950) (citation omitted).

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 Professor John Henry Wigmore, in his work A Panarama of the Worlds Legal Systems
(1936), discusses the religious origins of the prohibition. He states:

The Bishop of Rome was early recognized as the successor of
Saint Peter . . . . And, in the court of time, the successor of Saint
Peter, began to claim universal jurisdiction of law, not only over the
Christian Church, but also over temporal kings and princes. The
typical expression of this claim is found in a supposed letter of Pope
Clement I, A. D. 91 addressed to the clergy, and later included in the
so-called Decretals of Isidore, the vital Clauses read:

“Your duty is to teach the peoples. Their duty is to obey you
as they would God Himself. . . . And all princes, high or low, and
other peoples, tribes, and languages, who do not obey shall be
infamous, and shall be cast out from the kingdom of God and the
company of the faithful.”

Id. at 935. After noting that the power of the ecclesiastical courts and the dominance of canon law
reached its peak, perhaps, during the Pontificate of Pope Innocent III, who died in 1216 A. D.,
Professor Wigmore further observes:

But in Innocent’s day the Roman church was vastly more than
that; it claimed and possessed supreme temporal political power over
the entire Christian world. Rome was once more the mistress of
Europe, and kings were its vassals. Its clergy were immune from the
criminal justice of the state. Its legislation covered the whole of
human existence from the cradle to the grave; it was upheld by
penalties that neither the proudest monarch nor the humblest peasant
could escape; and it was administered by a supreme world-judge
responsible to no earthly superior for his actions.

Id. at 954. Furthermore, as one court has observed:

Such was the atmosphere at the time in which it is stated in
Swann v. Broome, 3 Burrows, 1595, that these canons were adopted
by the Saxon kings, fortified by Edward the Confessor and confirmed
by William the Conqueror and Henry II.

State v. McElhinney, 100 N.E.2d at 277.

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 The prohibition remained a part of the common law despite Henry VIII’s break with the
Roman Church in the 16th century. After he broke with Rome and established the Church of
England, British kings retained, among other titles, the title “defenders of the faith.” Id. at 278.

Thus, the common law at and before the separation of the colonies from England included
the prohibition against court being held on Sunday. See Moss v. State, 131 Tenn. at 103, 173 S.W.
at 861. That common law is the common law of Tennessee, being derived from North Carolina, out
of which Tennessee was carved.4 See id. Both before and after the American Revolution, North
Carolina adopted acts generally preserving the common law as it was enforced in England. See id.;
see also Smith v. State, 215 Tenn. 314, 318, 385 S.W.2d 748, 750 (1965). The cession act, enacted
by the North Carolina General Assembly in 1789 and accepted by the United States Congress in
1790, provided that the laws in force and in use in North Carolina at the time of passing the act
should be in full force in the territory ceded until repealed or altered by the legislative authority of
the territory. Moss v. State, 131 Tenn. at 103,173 S.W. at 861 (quoting Smith v. North Memphis
Savings Bank, 115 Tenn. 12, 18-19, 89 S.W. 392, 393 (1905)). The Tennessee Constitutions
adopted in 1796 and 1835 provided that all laws in force in the territory prior to 1796 and 1835
should continue in force unless altered or repealed by the General Assembly. Id.; see also Tenn.
Const. of 1835, art. XI, § 1; Tenn. Const. of 1796, art. X, § II.

This Court recognized the common law rule of dies dominicus non est juridicus over 100
years ago and held that “no valid judgment can be rendered on Sunday.” Styles v. Harrison, 99
Tenn. 128, 128, 41 S.W. 333, 335 (1897). The Court further observed that “such a judgment is not
simply erroneous, but is absolutely void.” Id. at 128, 41 S.W. at 333.

Later, in Moss v. State, this Court applied the common law rule, reversing a conviction and
remanding for a new trial because the trial court had held court and charged the jury on Sunday. See
131 Tenn. at 111, 173 S.W. at 863. The Court said that “[i]n the absence of a statute allowing it,
there can be no doubt that it is unlawful for a court to do any judicial act on Sunday.” Id. at 100,
173 S.W. at 860. The Court also observed:

We so determine, not only in obedience to law, but with deep
satisfaction as well, since Sunday is one of the most useful
institutions we possess. Aside from its religious aspects, it is a noble
police regulation, greatly tending to preserve and increase the public
health, affording as it does a stated time of rest from labor, and a

4
The Ohio Supreme Court rejected the Sunday common law rule as not being a part of the common
law of Ohio because Christianity is not a part o f the law o f Ohio an d there is no union o f church and state as in England.
On the contra ry, our fed eral constitu tion recog nizes a com plete sever ance of th e church and the sta te. See State v.
McElhinney, 100 N .E.2d at 2 75.

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 means of physical and mental recuperation. On those who also regard
and use it as a religious institution it bestows an additional benefit.

Id. at 110, 173 S.W. at 863.

The Court’s most recent discussion of the common law rule was over 35 years ago. In Smith
v. State, the Court reversed a conviction and remanded for a new trial where the trial court had reread
a portion of instructions to the jury on Sunday. The Court observed that it was “axiomatic that the
common law recognized the sanctity of the Lord’s Day, and this principle has become a part of the
law of the State of Tennessee.” 215 Tenn. at 318, 385 S.W.2d at 750. The Court found additional
support for the common law rule in Tenn. Code Ann. § 39-4001, which had provided:

If any person shall be guilty of exercising any of the common
vocations of life, or of causing or permitting the same to be done by
his children or servants, acts of real necessity or charity excepted, on
Sunday, he shall, on due conviction thereof before any justice of the
peace of the county, forfeit and pay ten dollars ($10.00), one-half (½)
to the person who will sue for the same, the other half (½) for the use
of the county.

Tenn. Code Ann. § 39-4001 (1955) repealed by 1981 Tenn. Pub. Acts ch. 213, § 1. In citing this
statutory provision, the Court found that “the public policy of this State unquestionably opposes the
commission of any secular or judicial act on Sunday.” Smith v. State, 215 Tenn. at 318-19, 385
S.W.2d at 750.

The State argues that the common law prohibition against conducting court proceedings on
Sunday is obsolete and that there is no state or federal constitutional prohibition against Sunday
judicial proceedings. It urges this Court to abolish the common law rule and contends that the issue
should be left to the discretion of the trial court under the rules of procedure. See Tenn. R. Crim.
P. 57(b) (“If no procedure is specifically prescribed by rule, trial courts may proceed in any lawful
manner not inconsistent with these rules or with any applicable statute.”). The defendants assert that
the common law rule is still viable and that a new trial is required because the trial court violated the
common law rule.

It is appropriate for this Court to consider the continued viability of the common law rule at
issue in this case. We have “‘not hesitated to abolish obsolete common-law doctrines,’” and indeed
have “‘a special duty to do so where it is the Court, rather than the Legislature, which has recognized
and nurtured’ the common law rule.” State v. Rogers, 992 S.W.2d 393, 400 (Tenn. 1999) (quoting
Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn. 1991)). We have also said that “we abdicate our
function, in a field peculiarly non-statutory, when we refuse to consider an old and court-made rule.”
Dupuis v. Head, 814 S.W.2d at 345.

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 There is no Tennessee statute or constitutional provision that prohibits judicial functions on
a Sunday. Moreover, we find it significant that after our decision in Smith v. State, the legislature
repealed Tenn. Code Ann. § 39-4001 and 4002 in 1981, statutes which had been relied upon by the
Court in both Smith and Moss as a reflection of public policy. 5 In addition, the legislature has since
authorized the repeal of the so-called “blue laws,” which had permitted municipalities to restrict or
prohibit by ordinance commercial and retail activities on Sunday. See Tenn. Code Ann. § 6-32-208
(1998). In short, the legislature has never specifically addressed the issue of performing judicial
functions on Sunday, but it has repealed several laws that had restricted similar activities on the same
traditional grounds.

The common law rule has been addressed in very few of our cases and has not been
discussed at all for over 35 years. Moreover, the legislature has since repealed the statutory
restrictions on Sunday activities that had served as part of the rationale for our decisions prohibiting
judicial acts on Sunday. Finally, the rules of procedure are designed to allow trial courts to exercise
discretion in docketing, scheduling, and controlling the course and conduct of judicial proceedings.
E.g., Tenn. R. Crim. P. 2 and 57(b). In short, the common law rule has largely been stripped of its
original justification and no longer finds persuasive support in public policy as reflected in our
statutory law or rules of procedure. We therefore conclude that it is no longer the public policy of
this State that there should be no judicial acts performed on Sunday. Accordingly, we abolish the
common law rule prohibiting judicial functions and judicial acts on Sunday. E.g., Barnes v. Walker,
191 Tenn. 364, 369-70, 234 S.W.2d 648, 650-51 (1950) (discussing departure from the doctrine of
stare decisis)

In arriving at our conclusion, we are not unmindful of the traditional, religious, and symbolic
significance of Sunday. In reality, however, the legislature has changed public policy and has
relaxed restrictions on commercial, retail, and vocational activities that traditionally had been
invoked on Sunday. We also recognize that our society is not homogenous but is changing rapidly
and growing more diverse both in secular and religious activities. While many religious faiths and
denominations may maintain Sunday as a day of worship and reflection, other faiths do not, and still
other individuals may choose not to worship or reflect on Sunday at all. In any case, as interpreted
by this Court the common law rule prohibiting judicial activities on Sunday was not based solely on
religious grounds nor could it be without violating the Tennessee Constitution.6 See Moss v. State,
131 Tenn. at 110, 173 S.W. at 863.

5
Indeed, Tenn. Code Ann. § 39-4001 and 4002 were described by one senator as “archaic and out of
date.” Tenn. S ., Debate on Ten n. S. 628 /H.R. 56 6 on the Floor of th e Senate , 92nd Gen. Assembly, 1st Reg. Sess. (Apr.
16, 1981) (Tape: Senate Session #10 5) (statement of Sen. Ashe).

6
Article I, § 3 of the Tenne ssee Con stitution pro vides: “T hat all men h ave a natu ral and ind efeasible
right to worship almighty God according to the dictates of their own conscience; that no man can of right be compelled
to attend, erect or support any place of worship; or to maintain any minister ag ainst his consen t; that no hu man au thority
can, in any case whatever, control or interfere with rights of conscience; and that no preference shall ever be given, by
law, to any religious esta blishme nt or mo de of w orship.” T enn. Co nst. art. I, § 3.

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 In general, the course and conduct of trial proceedings rests within the sound discretion of
the trial court. State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994). The rules of procedure, which
assist the trial court in exercising its discretion, provide in part that they “shall be construed to secure
simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and
delay.” Tenn. R. Crim. P. 2. Moreover, although the rules do not specifically address the issue of
Sunday proceedings, they do provide that “[i]f no procedure is specifically prescribed by rule, trial
courts may proceed in any lawful manner not inconsistent with these rules or any applicable statute.”
Tenn. R. Crim. P. 57(b). Accordingly, we conclude that the issue of Sunday proceedings is best left
to the sound discretion of the trial court.7

In exercising this discretion, the trial court should be deferential to the preferences of the
litigants, witnesses, jurors, and attorneys and must be mindful of the need for every participant in
a trial proceeding to be prepared and rested. The trial court must also respect and accommodate the
genuinely-held religious view of any litigant, witness, juror or attorney. Finally, the trial court must
weigh all of these concerns against whatever pressing need or compelling interest may necessitate
a Sunday proceeding.

Turning to the facts of this case, it is apparent that the trial court abused its discretion by
allowing the trial to proceed on Sunday. In the midst of the trial on Saturday, counsel for Dewayne
King became ill, was unable to continue, and the trial stopped. The State moved to sever Dewayne
King from the co-defendants so that the trial could continue. Although counsel for all three
defendants objected, the trial court granted the State’s motion but said that the ruling was subject to
change. In making this conditional ruling, the trial court observed that counsel was ill and not
thinking clearly. On the next day, Sunday, counsel for Dewayne King was able to attend and the trial
continued without a severance of defendants.

7
Courts in several other jurisdictions have likewise held that S unday proceed ings are n ot per
se improper or void. E.g., Moo n v. State , 375 S.E.2d 442 (Ga. 198 8) (trial on Sunday not void where all parties were
present and con sented); Harris v. S tate, 645 S.W.2d 447 (T ex. Crim. App. 1983) (Su nday judicial proceedings not void);
State v. McElhinney, 100 N .E.2d at 2 80 (Sun day jud icial procee dings no t void); State v. Foss, 104 So. 211 (La. 1925)
(Sunday proceeding not void). Two jurisdictions have left the matter to the discretion o f the trial cou rt either by sta tute
or court rule. La. Code Crim. Proc. Ann. art. 763 (West 1999); N.D. R. Crim. P. 56.

The majority of states, however, address the matter via statute. Of these, a large majority restrict proceedings
on Sunday b ut make ex ceptions for receivin g verdicts, dischargin g a jury, issuing proc ess, or ministerial acts. E.g., Ark.
Code Stat. Ann. § 16-10-114 (M ichie 1997); Colo. Rev. Stat. § 16-10-11 4 (1997); Iow a Code A nn. § 602.1 602 (W est
1999); Me. Rev. Stat. Ann. tit. 4, § 1051 (West 1998) (including an exception w here ordered by the Chief Justice); M ass.
Gen. Laws Ann. ch. 213, § 4 (West 1998) (including an exception when there is a “pressing need”); Mich. Comp. Laws
Ann. § 435.101 (West 1999); Minn. Stat. Ann. § 484.07 (West 1998); Mo. Ann. S tat. § 476.250 (West 1998); Nev. Rev.
Stat. § 1.130 (1997); N.Y. Judiciary Law § 5 (McKinney 1999); R.I. Ge n. Laws § 8-7-10 (1998); Wyo. Stat. Ann. § 5-6-
202 (Michie 1999). A minority of states app ear to restrict Sunday p roceedings, with few or no ex ceptions. E.g., Fla.
Stat. Ann. § 34.131 (West 1998 ); Va. Code Ann. § 1-13 -27 (Michie 1999); W . Va. Code § 7-3-2 (1998 ).

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 When the prosecution moves for a severance of a defendant in the course of a trial, the
motion shall be granted if (1) the defendant consents to the severance and (2) the severance is
necessary to achieve a fair determination of guilt or innocence. Tenn. R. Crim. P. 14(c)(ii). Here,
the trial court erred in “conditionally” granting a severance. Counsel for Dewayne King never
consented to a severance, nor did counsel for the remaining defendants, and there was no showing
that a severance was necessary to achieve a fair determination of guilt or innocence of all the
defendants. Moreover, the trial court further erred by effectively conditioning the severance on
whether counsel for Dewayne King was able to proceed with trial on Sunday. Counsel was faced
with a choice: either go to trial on Sunday or have her client severed from the trial altogether.
Counsel for the other defendants faced a similar choice as they sought to prevent a severance which
they viewed as prejudicial.

Accordingly, we conclude that the trial court abused its discretion in ruling that the trial
would proceed on Sunday under the circumstances of this case. See State v. Shirley, ___ S.W.3d
___ (Tenn. 2000) (defining legal standards for finding an “abuse of discretion”). Although the state
now contends that counsel for all three defendants consented to the Sunday proceedings, the record
clearly indicates that they did so only to avoid a severance of defendants to which counsel for all
three defendants objected. Thus, we conclude that the trial court’s error requires a remand for a new
trial.

Conclusion

We conclude that performing any judicial function including a trial on Sunday does not
violate the Tennessee Constitution or any Tennessee statutory provision and that the justifications
for the common law rule are no longer sufficiently persuasive to invalidate Sunday proceedings as
a matter of law. We further hold that the issue of whether to conduct judicial functions on Sunday
rests within the discretion of the trial court. In exercising this discretion, the trial court should be
deferential to the preferences of the litigants, witnesses, jurors, and attorneys; must be mindful of
the need for every participant in a trial proceeding to be prepared and rested; must respect and
accommodate the genuinely-held religious view of any litigant, witness, juror or attorney; and must
weigh all of these concerns against whatever pressing need or compelling interest may necessitate
a Sunday proceeding. We conclude that the trial court abused its discretion under the facts of this
case and, therefore, affirm the result reached by the judgment of the Court of Criminal Appeals on
the separate grounds stated herein. Costs of the appeal shall be taxed to the State.

___________________________________
RILEY ANDERSON, CHIEF JUSTICE

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