State v. Blackstock

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE

STATE OF TENNESSEE v. SHERMAN WINCHESTER BLACKSTOCK

An Appeal from the Criminal Court for Hamilton County
No. 194640 Stephen M. Bevil, Judge

No. E1994-00004-SC-R11-CD - Decided April 10, 2000

The defendant, who has an IQ of 55 and functions on the level of an eight to nine-year old
child, was convicted by a jury for the aggravated sexual battery of a seven-year-old female. The
Court of Criminal Appeals affirmed the trial court’s findings that the defendant was competent to
stand trial, that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights,
that the trial court was without jurisdiction to order involuntary commitment and treatment as a
mentally retarded offender, and that the defendant should not have been sentenced as an especially
mitigated offender. The Tennessee Supreme Court granted the defendant’s application for
permission to appeal. Although the Court concluded that the evidence does not preponderate against
the trial court’s finding of competence, the Court found that the evidence does preponderate against
the trial court’s finding of a voluntary, knowing and intelligent waiver of Miranda rights, and further,
that the trial court erred in failing to consider the petition for involuntary care and treatment and in
refusing to sentence the defendant as an especially mitigated offender. Accordingly, the Tennessee
Supreme Court reversed and remanded for a new trial.

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

ANDERSON, C. J., delivered the opinion of the Court, in which DROWOTA , BIRCH, BARKER, JJ., and
BYERS , SP.J., joined.

Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public
Defender, Chattanooga, Tennessee (On Appeal); and Karla G. Gothard, Executive District Public
Defender, Chattanooga, Tennessee (At Trial), for the appellant, Sherman Winchester Blackstock

Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, and Todd R.
Kelley, Assistant Attorney General, Nashville, Tennessee (On Appeal); and Gary D. Gerbitz, District
Attorney General, and Bates W. Bryan, Jr. and Rebecca J. Stern, Assistant District Attorneys
General, Chattanooga, Tennessee (At Trial), for the appellee, State of Tennessee

OPINION

CHIEF JUSTICE ANDERSON delivered the opinion of the Court.
 We granted this appeal from the defendant’s conviction for aggravated sexual battery to
review two principal issues: (1) whether the defendant – a mentally retarded adult with a full scale
IQ of 55 – was competent to stand trial, and (2) whether he voluntarily, knowingly, and intelligently
waived his Miranda rights before making a statement to investigating officers. Other questions
raised include whether the trial court committed error in concluding that it lacked the authority to
grant the defendant’s petition for involuntary commitment and treatment as a mentally retarded
offender and whether it erred in denying the defendant’s request for sentencing as an especially
mitigated offender.

The Court of Criminal Appeals affirmed the defendant’s conviction for aggravated sexual
battery. It held that the evidence did not preponderate against the trial court’s rulings, first that the
defendant was competent to stand trial and second that he had waived his Miranda rights before
making a statement to law enforcement officers. The appellate court further held that the trial court
lost jurisdiction to order involuntary commitment after the defendant was in the Department of
Correction’s custody. Finally, the court held that the defendant did not qualify for an especially
mitigated sentence because of the existence of the private trust enhancement factor.1

After our review of the record and applicable law, we conclude that the evidence is marginal
but does not preponderate against the trial court’s finding that the defendant was competent to stand
trial. We further find, however, that the evidence does preponderate against the trial court’s finding
that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights before making
a statement to officers. Moreover, we conclude that the trial court erred in concluding that it lacked
the authority to order involuntary care and treatment and erred in refusing to sentence the defendant
as an especially mitigated offender. The Court of Criminal Appeals’ judgment is therefore reversed,
and this case is remanded to the trial court.

BACKGROUND

The defendant, Sherman Winchester Blackstock, was indicted for the aggravated rape of a
seven-year-old female. The following is a summary of the evidence at trial. The child testified that
in August of 1992, she was in Blackstock’s apartment when he laid her on a bed, removed her
clothing, got on top of her, and penetrated her. She said that Blackstock said he would kill her if she
told anyone what happened.

Deborah Earls, the child’s mother, testified that she and her three daughters were staying with
Blackstock free of charge off and on until they could find another place to live. Blackstock asked
her to leave, and she left shortly before this incident. Earls testified that a friend told her that
Blackstock had raped Earls’ daughter. After talking to her daughter, Earls asked Blackstock if he
had sex with her child. Blackstock initially appeared not to understand but then said “yes, what
about it.” She told Blackstock that she was calling the police. As to Blackstock’s mental capacity,
Earls testified that Blackstock shopped for groceries, cooked for himself and her family, and washed

1
Tenn. Code Ann. § 40-35-114(15) (1997).

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clothes on his own. Although Blackstock talked slowly, Earls could understand him and did not
know he was mentally retarded.

After the police were called, Blackstock was questioned by Tara Pedigo, a detective for the
child abuse unit of the Chattanooga Police Department. Pedigo testified that she read Blackstock
his Miranda rights and that he seemed to understand his rights before signing a written waiver. In
response to Pedigo’s questions, Blackstock said that the child removed her clothing herself. He said
that he touched her “in her private” with his “dingaling,” but that he did not penetrate her.

Blackstock testified in his own defense, stating that he was born in 1978 and was twenty-four
years old.2 His testimony revealed that he could not read or write, that did not know the shape of
a triangle, that he thought the American flag had only three stars, and that he could not count
numbers in sequence beyond one through ten. He remembered being scared and nervous when
talking to officers and recalled telling the officers that the child told him to take their clothes off and
that she unzipped his pants. He denied that he raped the child and denied telling her not to tell
anyone what happened.

A number of other witnesses testified as to Blackstock’s mental limitations.3

Dennis Barwick, the program director at the Orange Grove Center, testified that Blackstock
attended the vocational and educational training center for mentally retarded individuals from 1971
to 1982. The Center’s records indicated that Blackstock suffers from an organic brain injury and a
speech defect and that he sustained head injuries when struck by a car as a child. While Blackstock
was attending the Orange Grove Center, testing showed his IQ to be 43 at age fourteen, 58 at age
sixteen, and 57 at age twenty. Other evaluations indicated that his functioning was equivalent to a
five to six-year-old child and that his social age was like that of a nine-year-old child.

Blackstock’s conservator, Walter Grantham, an attorney, testified that he was appointed as
conservator in 1991, replacing Blackstock’s brother who had been removed for misusing funds.
Blackstock’s brother had been appointed as conservator in 1981 because of a doctor’s certification
of Blackstock’s permanent mental retardation and inability to manage his own affairs. Grantham
said that as conservator, he signed documents for Blackstock, paid his bills, and gave him food
stamps and checks on a weekly basis. Grantham related that he treated Blackstock the way one treats
a six or eight-year-old child. Lisa Smith, Grantham’s secretary, testified that she saw Blackstock
weekly and had to explain to him how to use the food stamps each time. Blackstock had a speech
impediment and was hard to understand. In her view, Blackstock acted like an eight-year-old child
and would not have known he did anything wrong until arrested by police.

2
The presentence report indicates that Blackstock was born in 1959 and was thirty-
three years old at the time of trial.
3
Blackstock attempted to establish a defense of insanity.

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 Thomas Ford, a clinical psychologist associated with the Johnson Mental Health Center, a
state institution, testified that he met with Blackstock three times before trial to determine his
competency to stand trial and his mental state at the time of the offense. He determined that
Blackstock has an IQ of 55, which was lower than ninety-eight to ninety-nine percent of the general
population, and a speech impediment that made it hard to understand him. Although Ford did not
give an adaptive functioning test to determine Blackstock’s level of functioning, it was his opinion
that Blackstock functioned at the level of an eight to nine-year-old child. According to Ford,
Blackstock had a difficult time relating information about his life. Ford testified that Blackstock
seemed to understand that he had been charged with a serious offense; he told Ford that he did not
commit the offense and that he believed his attorney would do a good job. Based on his evaluations,
Ford concluded that Blackstock was competent to stand trial and was legally sane at the time of the
offense.

Finally, Wanda and Anthony Pasley testified that at the time of the trial, Blackstock had
been living with them for approximately six months. Both testified that Blackstock cannot cook,
but is able to do yard work and clean the house. Wanda Pasley testified that Blackstock acts like a
four or five-year-old child and had to be reminded to bathe regularly. She cashes Blackstock’s
checks.

The jury found Blackstock guilty of the lesser offense of aggravated sexual battery. The
Court of Criminal Appeals affirmed the conviction and sentence. We granted this appeal.

COMPETENCY TO STAND TRIAL

The Fourteenth Amendment to the United States Constitution and article I, section 8 of the
Tennessee Constitution prohibit the trial of a person who is mentally incompetent. Pate v. Robinson,
383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Berndt v. State, 733 S.W.2d 119 (Tenn. Crim.
App. 1987). The standard for determining competency to stand trial is whether the accused has “the
capacity to understand the nature and object of the proceedings against him, to consult with counsel
and to assist in preparing his defense.” State v. Black, 815 S.W.2d 166, 174 (Tenn. 1991) (quoting
Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975)); see also Dusky v. United States,
362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (1960) (ability to consult with lawyer and a
“rational as well as factual understanding of the proceedings”).

Before trial, the public defender filed a petition for a psychiatric evaluation seeking to have
Blackstock evaluated both for mental competence to stand trial and his mental state at the time of
the offense. The trial court directed that the evaluations be conducted by the Johnson Mental Health
Center, a state institution. A report to the trial court dated March 31, 1993, stated the following:

After completion of the evaluation, we have concluded that [Blackstock’s] condition
is such that he is capable of defending himself in a court of law. In making this
determination, we found that he understands the nature of the legal process; that he
understands the charges pending against him and the consequences that can follow;
and he can advise his counsel and participate in his own defense.

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No other expert examined the defendant. No evidentiary hearing on the question of competency was
held; thus, lay proof as to Blackstock’s mental limitations was not heard prior to trial.

Analysis

On appeal, Blackstock contends that the trial court erred in determining that he was
competent to stand trial. He points to evidence of his mental retardation, his IQ of 55, and testimony
from several witnesses that he functions on the level of a four to nine-year-old child. Blackstock
further argues that the testimony regarding his limited life skills, comprehension, and functioning
indicates that he lacked both the capacity to understand the proceedings against him and the ability
to assist in his defense. Although Blackstock did not seek or request an evidentiary hearing on
mental competency before trial, he asserts that the trial court had a duty to conduct a hearing sua
sponte. See Berndt, 733 S.W.2d at 122.

Blackstock contends that State v. Benton, 759 S.W.2d 427 (Tenn. Crim. App. 1988), is a
similar case with the opposite result. In Benton, the evidence at a competency hearing revealed that
the defendant, age forty-three, was unable to respond to questions asked by a psychological examiner
and that he did not know why he had been arrested or why he was being evaluated. The defendant’s
skills in areas such as communication and coping ability were measured at an age level of four to
six years. The defendant had received no education, did not know his childhood history, could not
relate the date, month or year, and did not know how to read, write or count. The defendant’s
lifestyle was extremely limited and required intense supervision. A psychiatrist testified that the
defendant had moderate mental retardation, with an IQ of 47. The psychiatrist and a psychiatric
social worker both opined that the defendant did not understand the proceedings against him and
lacked the ability to assist in his defense. A different panel of the Court of Criminal Appeals held
that the evidence preponderated against the trial court’s finding of competence.

The present case is different in that there was only one mental health expert who found the
defendant competent and no other proof of any kind. The trial court reviewed a report from the
Johnson Mental Health Center finding that Blackstock was competent to stand trial. There was no
cross-examination or other testimony regarding the Johnson Mental Health Center’s findings.
Blackstock did not seek a competency hearing, nor did he produce any expert or lay evidence
indicating that he lacked the capacity to understand the proceedings against him and to assist his
attorney in his defense. In contrast, an evidentiary hearing was held in Benton, and every expert who
testified opined that the defendant was mentally incompetent to stand trial. The evidence introduced
at the suppression hearing also indicated that Blackstock’s IQ and level of functioning were slightly
higher than those of the defendant in Benton.

We observe that the issue is close, but we conclude that Blackstock was marginally
competent based on the evidence produced and that the evidence does not preponderate against the
trial court’s determination that Blackstock was competent to be tried. The trial court was entitled
to rely upon the results of the psychiatric evaluation, which indicated that Blackstock had the
capacity to understand the proceedings against him and to assist in his defense. Moreover, given the
single expert’s findings and the failure of the defense to request a hearing or to produce evidence of

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incompetency, we cannot conclude that the trial court erred in failing to conduct a competency
hearing sua sponte. See Berndt, 733 S.W.2d at 122 (“[a]ppellate court may only consider those facts
which were before the court when the trial commenced . . . .”).

SUPPRESSION OF STATEMENTS

We now turn to the issue of whether Blackstock voluntarily, knowingly, and intelligently
waived his Miranda rights before being interrogated by Detective Pedigo.

Detective Tara Pedigo testified that she questioned Blackstock in her office in the presence
of the arresting officer and a Department of Human Services employee. Pedigo said that she read
the Miranda rights to Blackstock before questioning him. She said that she explained each right in
plain language and that she believed Blackstock understood he was waiving his rights by signing a
waiver form. Pedigo testified that Blackstock told her that he could read and write and had attended
school through the eleventh grade. When Pedigo asked if Blackstock “understood everything [she]
had said,” Blackstock responded, “I only did it once, and I won’t do it anymore.”

Pedigo conceded that she took no notes and made no recording of her advice to Blackstock
about his Miranda rights or his responses. She conceded that she did not define or explain the terms
“lawyer,” “court,” or “appointed,” and she acknowledged that Blackstock misspelled his own last
name on the waiver of rights form. Pedigo agreed that Blackstock’s grammar and language ability
was poor. She was not aware that Blackstock had attended special education programs, that he had
suffered a severe head injury as a child, or that he had an appointed conservator because of his
mental retardation and inability to manage his own affairs. Pedigo testified that Blackstock’s speech,
which was slurred and difficult to understand, became worse during the portion of the interview that
was recorded, and that she had to stop the interview several times to ask Blackstock to speak more
clearly.

Blackstock’s conservator, Walter Grantham, was appointed conservator for Blackstock in
1991, replacing Blackstock’s brother who had been appointed in 1981 after doctors certified that
Blackstock was permanently mentally retarded and unable to manage his affairs. Grantham’s
responsibilities include managing Blackstock’s financial affairs, signing documents, and giving
Blackstock a weekly check for fifteen to twenty-five dollars and food stamps. Grantham testified
that Blackstock functioned at a low level and was easily influenced and led by others. Grantham
said that Blackstock was able to print his name in a “primitive” fashion but could not otherwise read
or write. It was Grantham’s opinion that Blackstock lacked the ability to read or understand Miranda
rights and could not comprehend a waiver of such rights. Grantham stated that Blackstock viewed
him as a source for money and food stamps and did not understand that Grantham was an attorney.
As a result, Blackstock did not try to call Grantham or anyone else for help when arrested and
remained in custody for two weeks despite having the financial resources to post bail. It was not
until Grantham tried to locate Blackstock that Grantham became aware of the charges and posted
bail so that Blackstock could be released from jail pending trial.

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 Dennis Barwick, the program director at the Orange Grove Mental Health Center, testified
that Blackstock was a patient from 1971 to 1982. Blackstock, who was classified as mildly mentally
retarded, participated in a training program as a dishwasher under direct supervision. According to
Barwick, tests administered in 1980 indicated that Blackstock’s IQ was 57 and his level of
functioning as measured by a Bender Visual-Motor Gestalt test was equivalent to that of a six-year-
old child. Barwick also testified that Blackstock could not read or write.

The trial court found that Blackstock had a “mental impairment,” but further found that
Pedigo read the Miranda rights to Blackstock and that the recorded interview indicated that
Blackstock made “a voluntary waiver, because it does seem that he is cooperating and he is telling
what he knows about what happened.” The Court of Criminal Appeals affirmed.

Analysis

The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The
related provision in the Tennessee Constitution states that “in all criminal prosecutions, the accused
. . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. In short, a
defendant’s right against compelled self-incrimination is protected by both the federal and state
constitutions. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994).

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966),
the United States Supreme Court held that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination.” The procedural safeguards must include warnings prior to any custodial questioning
that an accused has the right to remain silent, that any statement he makes may be used against him,
and that he has the right to an attorney. Id.

The rights protected in Miranda may be waived by an accused “provided the waiver is made
voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. As we have
explained:

The relinquishment of the right must be voluntary in the sense that it is the product
of a free and deliberate choice rather than the product of intimidation, coercion or
deception. Moreover, the waiver must be made with full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon
it.

Stephenson, 878 S.W.2d at 544-45 (emphasis added). Accordingly, the totality of the circumstances
must reveal “an uncoerced choice and the required level of comprehension before a court can
properly conclude that Miranda rights have been waived.” Id. at 545; see also Moran v. Burbine,
475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986).

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 The effect of an accused’s mental deficiencies or retardation on the validity of his decision
to waive Miranda rights has been considered in numerous cases. Charles C. Marvel, Annotation,
Mental Subnormality of Accused as Affecting Voluntariness or Admissibility of Confession, 8
A.L.R. 4th 16 (1981 & Supp. 1999). Mentally retarded individuals present additional challenges for
the courts because they may be less likely to understand the implications of a waiver. United States
v. Murgas, 967 F. Supp. 695, 706 (N.D.N.Y. 1997). As one commentator has suggested, the
mentally retarded are “less likely to understand their Miranda rights and the consequences of
waiving them, giving rise to concerns about the knowing intelligence of their waivers.” Paul T.
Hourihan, Earl Washington’s Confession: Mental Retardation and the Law of Confessions, 81 Va.
L. Rev. 1471, 1492 (1995).

Although there is likely to be a level of deficiency so great that it renders a defendant unable
to make a knowing and intelligent waiver, nearly every court to consider the issue has held that
mental impairments or mental retardation are factors that must be considered along with the totality
of the circumstances. As one court has said, “no single factor, such as IQ, is necessarily
determinative in deciding whether a person was capable of knowingly and intelligently waiving, and
do [sic] so waive, the constitutional rights embraced in the Miranda rubric.” Fairchild v. Lockhart,
744 F. Supp. 1429, 1453 (E.D. Ark. 1989). Among the circumstances courts have considered are
the defendant’s age, background, level of functioning, reading and writing skills, prior experience
with the criminal justice system, demeanor, responsiveness to questioning, possible malingering, and
the manner, detail, and language in which the Miranda rights are explained. As a result, courts tend
to reach results that are somewhat fact-specific.4

The circumstances in this case are as follows. On one hand, Blackstock was found competent
to stand trial by the Johnson Mental Health Center, a determination which encompassed a finding
that he had the capacity to understand the proceedings against him. Detective Pedigo testified that
she explained the Miranda rights individually; although she claimed to read the rights to Blackstock
in “clear” language, she conceded that she did not ask Blackstock whether he knew the definition

4
In the following cases, waivers were found to be valid. United States v. Macklin, 900
th
F.2d 948 (6 Cir. 1990) (defendant had IQ of 59; co-defendant’s IQ was 70); Moore v. Dugger, 856
F.2d 129 (11th Cir. 1988) (defendant had IQ of 62 and functioned on the level of eleven-year-old
child); Reddix v. Thigpen, 805 F.2d 506 (5th Cir. 1986) (mentally retarded defendant); De La Rosa
v. Texas, 743 F.2d 299 (5th Cir. 1984) (borderline retarded defendant); Harris v. Riddle, 551 F.2d
936 (4th Cir. 1977) (IQ of 67; sixth grade intelligence); United States v. Young, 529 F.2d 193 (4th
Cir. 1975) (below average IQ; limited education and reading ability); Hill v. State, 798 S.W.2d 65
(Ark. 1990) (IQ between 56 and 70; third grade functioning); State v. Brooks, 648 So. 2d 366 (La.
1995) (mildly retarded, but functional); State v. Cook, 332 S.E.2d 147 (W. Va. 1985) (moderate
mental retardation). Conversely, in the following cases, statements were suppressed. Henry v. Dees,
658 F.2d 406 (5th Cir. 1981) (IQ between 65 and 69; sixth grade level of education); Cooper v.
Griffin, 455 F.2d 1142 (5th Cir. 1972) (defendants with IQs between 61 and 67; low functioning);
State v. Flower, 539 A.2d 1284 (N.J. Super. Ct. Law Div. 1987) (IQ less than 70; mental age
equivalency of seven to twelve-year-old child).

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of such terms as “lawyer,” “court,” or “appointed.” Pedigo was of the opinion that Blackstock
appeared to understand his rights, but she was not aware that he was mentally retarded or that a
conservator had been appointed because of his inability to manage his affairs. During the interview,
Blackstock was responsive to questions, but Pedigo conceded that his speech and communication
worsened and that he was frequently difficult to understand. She on several occasions instructed
Blackstock to speak more clearly, even reminding him that he had spoken more clearly before the
tape recorder had been turned on. Pedigo conceded that the arresting officer and a Department of
Human Services employee were present at the interview and that no one was present to assist in
communicating with Blackstock. Pedigo also agreed that Blackstock did not know his social
security number and that he misspelled his own last name on the waiver of rights form.

In addition, the evidence overwhelmingly demonstrated that Blackstock was mentally
retarded and functioned on a level equivalent to a child from six to nine years of age. The evidence
also showed that he could not read or write. Blackstock’s conservator, Walter Grantham, testified
that he treated Blackstock like a six or eight-year-old child, and in Grantham’s opinion, Blackstock
lacked the capacity to understand his constitutional rights. Dennis Barwick, the program director
at the Orange Grove Mental Health Center, testified that Blackstock functioned at the level of a six-
year-old child. Indeed, if Blackstock had the ability to meaningfully understand his rights, it is
difficult to explain why he remained in jail for two weeks without making bond when his
conservator was an attorney, and he had the funds to post bail.

In our view, the evidence preponderates against the trial court’s determinations. For
example, the trial court observed that Blackstock had a “mental impairment” and that he functioned
“somewhat” at a lower level than other individuals. The evidence demonstrated, however, that
Blackstock was mentally retarded, had an IQ of 55, and significantly impaired functioning equivalent
to a child from six to nine years of age. Moreover, we note that the trial court stressed that “there’s
nothing to show that he did not understand what a lawyer was at that time, or that he didn’t
understand the fact that he had a right to representation by an attorney or lawyer or counsel or
someone there to speak on his behalf.” This effectively reversed the proper standard, which requires
a showing that Blackstock had a meaningful awareness of his Miranda rights, as well as the
consequences of waiving his rights. Stephenson, 878 S.W.2d at 544-45.

Accordingly, we conclude that the evidence in the record preponderates against the trial
court’s determination that Blackstock voluntarily, knowingly and intelligently waived the rights
protected by the Fifth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution. The lower courts therefore erred in failing to suppress the statement.

INVOLUNTARY CARE AND TREATMENT

Prior to sentencing, Blackstock filed a petition for involuntary care and treatment as a
mentally retarded offender pursuant to Tenn. Code Ann. § 33-5-301, et seq. (1984 & Supp. 1999).
The trial court denied the petition because it had not been filed prior to trial and instead sentenced
Blackstock to serve eight years in the Department of Correction.

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 The State maintains that the trial court properly determined that its authority to order
commitment exists only before trial because the language of Tenn. Code Ann. § 33-5-305(a)(1)(B)
(Supp. 1999) is predicated upon findings related to a defendant’s competency to stand trial and also
because the Department of Correction has its own authority to initiate proceedings for transferring
an inmate to an appropriate facility for mentally retarded offenders. Tenn. Code Ann. § 33-3-402
(Supp. 1999). Blackstock argues, however, and the Court of Criminal Appeals agreed, that the trial
court’s authority exists before and after conviction because the definition of “mentally retarded
offender” specifies he or she may be “a defendant at any stage in the criminal or juvenile justice
system.” Tenn. Code Ann. § 33-5-303(1) (1984) (emphasis added).

Analysis

We begin our review of this issue with Tenn. Code Ann. § 33-5-303(1), which governs
“mentally retarded offenders.” A “mentally retarded offender” means a person with “significantly
sub-average general intellectual functioning which originates during the developmental period and
is associated with an impairment of adaptive behavior, who is a defendant at any stage in the
criminal or juvenile justice system.” Tenn. Code Ann. § 33-5-303(1) (emphasis added).

The procedures for requesting involuntary commitment are set forth in Tenn. Code Ann. §
33-5-305. The statute provides in part that if “a circuit, criminal, or general sessions court
determines on the basis of an evaluation under § 33-7-301(a) either that a criminal defendant is
incompetent to stand trial due to mental retardation or, with the agreement of defense counsel, that
the defendant is competent to stand trial but that failure to provide a secure facility would create a
likelihood to cause the defendant serious harm by reason of mental retardation” then the district
attorney general or defense counsel “may file a complaint to require involuntary care and treatment
of the mentally retarded person . . . .” Tenn. Code Ann. § 33-5-305(a)(1)(B), (a)(2).

A person may be “judicially committed to involuntary care and treatment,” if the following
are found: 1) the person is mentally retarded; 2) the person poses a substantial likelihood of serious
harm as defined in § 33-6-104(c) because of the mental retardation; 3) the person needs care,
training, or treatment because of the mental retardation; and 4) all available less drastic alternatives
to judicial commitment are unsuitable to meet the needs of the person. Tenn. Code Ann. § 33-5-
305(b).

An elementary principle of statutory construction requires that we ascertain and give effect
to the legislature’s intent without unduly restricting or expanding a statute’s coverage beyond its
intended scope. State v. Pettus, 986 S.W.2d 540, 544 (Tenn. 1999). The legislative intent and
purpose are to be ascertained primarily from the natural and ordinary meaning of the statutory
language, without a forced or subtle interpretation that would limit or extend the statute’s
application. Id.

Statutes relating to the same subject or sharing common purpose shall be read and construed
together (“in pari materia”) in order to advance their common purpose or intent. Carver v. Citizen
Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997). Our goal and function “is to adopt a reasonable

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construction which avoids statutory conflict and provides for harmonious operation of the laws.”
Id.; see also Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995).

Applying these principles of statutory construction, we note that the definition of “mentally
retarded offender” specifically states that it applies to a defendant “at any stage in the criminal or
juvenile justice system.” Tenn. Code Ann. § 33-5-303(1). The plain language does not limit its
application to defendants who have not been tried as the trial court concluded, but rather, extends
throughout the process and includes sentencing. Although the procedures refer to the initial
competency determination, it is illogical to infer that they apply only before trial. The statute
authorizes “programs, especially community-based programs, for training, habilitating, or
rehabilitating persons who are mentally retarded public offenders or delinquents under this part.”
Tenn. Code Ann. § 33-5-301 (1984). The legislative purpose is therefore to identify mentally
retarded individuals in the criminal justice system and to provide alternatives to incarceration for
those who require care, rehabilitation, and treatment. An interpretation that would limit the
procedures to pretrial proceedings is inconsistent with this purpose.5

Moreover, as both lower courts observed, there is statutory authority for the director of a
department of correction institution to transfer mentally retarded inmates to an appropriate treatment
facility. Tenn. Code Ann. § 33-3-402 (Supp. 1999). If the State’s argument were adopted, the
statutes would allow commitment to be a viable consideration only before trial and after a defendant
is physically transferred to the custody of the Department of Correction. This would render the
commitment proceedings unavailable during a large portion of the proceedings – from trial,
sentencing, post-trial proceedings, and potentially the appellate process. Again, this is inconsistent
with the definition of “mentally retarded offender” and would frustrate the legislative purpose.

The Court of Criminal Appeals reached this same conclusion, yet concluded that Blackstock
was not entitled to relief because the trial court lost jurisdiction over the sentence after Blackstock
was physically transferred to the Department of Correction. While it is true that a trial court loses
jurisdiction over the sentence after a defendant is in the custody of the Department of Correction
pursuant to Tenn. Code Ann. § 40-35-212(d) (1997), this section does not prevent a reversal of the
sentence and a remand for a new sentencing proceeding.

We have interpreted these statutory provisions in a manner that is consistent with the
legislative intent and purpose and provides for the overall harmonious operation of the laws, and we
therefore conclude that the trial court erred in refusing to consider Blackstock’s petition for
involuntary care and treatment as a mentally retarded offender.

ESPECIALLY MITIGATED OFFENDER

5
Such a limited interpretation is also inconsistent with statutory provisions allowing
credit for time spent in the custody of the Department of Mental Health and Mental Retardation
when the person receives evaluation, training or treatment “in connection with a criminal charge or
conviction.” Tenn. Code Ann. § 33-5-306 (1984).

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 Blackstock contends that the trial court erred in failing to impose a sentence as an especially
mitigated offender. A court has the discretion to sentence a defendant as an especially mitigated
offender if (1) he has no prior felony convictions and (2) the court finds mitigating but no enhancing
factors in the record. Tenn. Code Ann. § 40-35-109(a)(1)-(2) (1997). If a court finds a defendant
to be an especially mitigated offender, the court shall reduce the Range I minimum sentence by ten
percent, reduce the release eligibility by twenty percent, or both. Tenn. Code Ann. § 40-35-109(b).

The trial court found that Blackstock had no prior felony convictions and that several
mitigating factors were present, i.e., Blackstock’s mental condition reduced his culpability and made
it unlikely that he had a sustained intent to violate the law. Tenn. Code Ann. § 40-35-113(8), (11)
(1997). The trial court denied especially mitigated sentencing, however, on the basis that an
enhancement factor – that the victim was particularly vulnerable because of age or physical or
mental limitations – was present in the record. See Tenn. Code Ann. § 40-35-114(4) (1997). The
trial court instead sentenced Blackstock as a Range I, standard offender to the minimum of eight
years in the Department of Correction. Tenn. Code Ann. § 40-35-112(a)(2) (1997).

The Court of Criminal Appeals correctly held that the trial court erred in finding the
particular vulnerability enhancement factor because vulnerability cannot be presumed solely from
the age of the victim and because there was no evidence that the victim was unable to resist, summon
help, or testify at a later date. See State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The Court of
Criminal Appeals nonetheless upheld the sentence after finding in the course of its de novo review
that another enhancement factor – that the defendant abused a position of private trust – was
established by the evidence. Tenn. Code Ann. § 40-35-114(15). We disagree.

Analysis

In State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996), we held that the application of the
abuse of trust factor requires a finding that a defendant occupied a position of trust, either public or
private, and that the position of trust occupied was abused by the commission of the offense. We
further explained:

The determination of the existence of a position of trust does not depend on the
length or formality of the relationship, but upon the nature of the relationship. Thus,
the court should look to see whether the offender formally or informally stood in a
relationship to the victim that promoted confidence, reliability, or faith.

Id. (emphasis added). Although we stressed that the “fact that an offender is older than the victim
or that the offender is an adult and the victim is a child is insufficient without more to establish a
position of trust,” id. at 489, we have recently clarified that where “the adult perpetrator and minor
victim are members of the same household, the adult occupies a position of ‘presumptive private
trust’ with respect to the minor.” State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999); State v.
Carico, 968 S.W.2d 280, 286 (Tenn. 1998).

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 In the present case, the Court of Criminal Appeals concluded that Blackstock, through his
relationship with the victim’s mother and the victim, occupied a position that promoted the victim’s
confidence, reliability and faith in him, “such as would motivate her to approach and enter his
apartment without fear.” We initially note that the child and her family were no longer living in the
same residence with Blackstock at the time of this offense. More importantly, we believe the Court
of Criminal Appeals failed to take into account Blackstock’s mental impairment as it related to the
nature of the relationship between the child and him and whether the enhancement factor is
applicable to these unique facts. Blackstock was mentally retarded with an IQ of 55. His
functioning level was no greater than a child of nine years of age – hardly older than the victim. In
these unique circumstances, we hold that the evidence is insufficient to apply this enhancement
factor.

Accordingly, we find that no enhancement factors were proven to exist. Moreover, given the
presence of Blackstock’s mental limitations and low functioning as substantial mitigating factors,
we find that the trial court erred in refusing to sentence Blackstock as an especially mitigated
offender.

CONCLUSION

In summary, we have concluded that the evidence does not preponderate against the trial
court’s finding that Blackstock was competent to stand trial but does preponderate against the trial
court’s determination that Blackstock voluntarily, knowingly and intelligently waived his Miranda
rights before giving a statement. We have further concluded that the trial court erred in failing to
consider Blackstock’s petition for involuntary care and treatment as a mentally retarded offender and
in refusing to sentence Blackstock as an especially mitigated offender. As a result, the conviction
and sentences are reversed, and this case is remanded to the trial court for a new trial.

Having decided the legal issues, we have great concern about the judicial process in this case.
This defendant was arrested in August of 1992, indicted in November of 1992, tried in June of 1993,
and sentenced in September of 1993 to serve eight years in the Department of Correction. An appeal
to the Court of Criminal Appeals was taken by notice of appeal filed on January 13, 1994. The case
thereafter languished in the Court of Criminal Appeals for a period of almost four years until the
release of an opinion in December of 1997. An appeal was sought in this Court in 1998. Disposition
was again delayed by extensions sought by counsel for the State and by counsel for the defense.

Accordingly, this case stagnated in the appellate system for an unreasonable period of time,
during which Blackstock was serving his sentence. In fact, counsel advised this Court at oral
argument that Blackstock has now served his entire sentence. As a result of these appellate delays,
a mentally retarded individual was tried, convicted, and incarcerated in the Department of Correction
for his entire sentence without timely appellate review of significant issues. We have reversed the
conviction and sentence, and the remedy is a new trial and sentencing. In this case, however, where
the defendant has served his entire sentence, the prospect of a new trial is of dubious practical value
and unlikely to be in the interest of the defendant, the victim, or the public as a whole. In short, the
criminal justice system has failed in this case, and justice delayed has been justice denied. To avoid

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such failures in the future, all courts must adopt and enforce rules and procedures which control and
manage dockets to avoid unreasonable delay which saps public trust and confidence in the courts.

The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the
trial court. Costs of appeal shall be paid by the State.

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