STATE OF TENNESSEE v. JOHN HENRY PRUITT

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 25, 2016 Session Heard at Cookeville1

STATE OF TENNESSEE v. JOHN HENRY PRUITT

Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Hickman County
No. 11-5005-CR Timothy L. Easter, Judge
___________________________________

No. M2013-02393-SC-R11-CD
FILED DECEMBER 30, 2016
___________________________________

We granted this appeal to consider whether the Court of Criminal Appeals incorrectly
held in State v. Hayes, No. M2012-01768-CCA-R3-CD, 2013 WL 3378320, at *7 (Tenn.
Crim. App. July 1, 2013), no perm. app. filed, that retroactive application of the
Exclusionary Rule Reform Act, Tennessee Code Annotated section 40-6-108, would
violate constitutional protections against ex post facto laws and to re-evaluate the ex post
facto analysis in Miller v. State, 584 S.W.2d 758 (Tenn. 1979), in light of Collins v.
Youngblood, 497 U.S. 37 (1990). Having concluded that Miller was wrongly decided, we
overrule Miller and hold that the ex post facto clause of the Tennessee Constitution has
the same definition and scope as the federal ex post facto clause. To be an ex post facto
violation, a law must be retroactive in its application and must fall within one of the four
categories set forth in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase,
J.). We conclude that the Exclusionary Rule Reform Act is not an ex post facto statute as
applied in this case and that as a result, the Defendant‟s motion to suppress the evidence
against him was not well-taken. In addition, we conclude that the Defendant‟s issues
regarding the sufficiency of the evidence to convict him and to sentence him to life
without the possibility of parole do not entitle him to relief. Accordingly, the judgments
of the Court of Criminal Appeals are affirmed on the separate grounds stated herein.

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

ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.

1
We heard oral argument in this case on May 25, 2016, at Tennessee Technological University
in Cookeville, Tennessee, as part of this Court‟s S.C.A.L.E.S. (Supreme Court Advancing Legal
Education for Students) project.
Vanessa Pettigrew Bryan, District Public Defender; J. Gregory Burlison (at trial and on
appeal), and Robert Jones (at trial), Assistant District Public Defenders, for the appellant,
John Henry Pruitt.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Sarah K. Campbell, Special Assistant to the Solicitor General and the Attorney
General; Kim Helper, District Attorney General; Michael J. Fahey and Kate Yeager,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

On October 18, 2010, John Henry Pruitt (“the Defendant”), shot three people in
his front yard, two of whom died. The third victim was paralyzed. The responding law
enforcement officers shot the Defendant four times. The Hickman County Grand Jury
indicted him for two counts of first degree premeditated murder (victims Amber Hopkins
and John Louis Luster), one count of attempted premeditated murder (victim James E.
Kennedy), and three counts of aggravated assault (victims Deputy Jody Simmons,
Detective Johnny Davis, and Deputy Ricky Harness). On March 16, 2012, the Defendant
filed a motion to suppress evidence seized from his residence based upon an allegedly
illegal search warrant.2 After a pretrial hearing on April 13, 2012, the trial court3 denied
the Defendant‟s motion, ruling that Tennessee Code Annotated section 40-6-108,4
commonly known as the Exclusionary Rule Reform Act (“ERRA”), applied to the case

2
The Defendant also filed a motion to suppress a statement given by him to Tennessee Bureau of
Investigation agents. The trial court denied this motion, and it is not a subject of this appeal.
3
Judge Derek K. Smith presided over the suppression hearing.
4
Tennessee Code Annotated section 40-6-108(a), which became effective on July 1, 2011,
provides as follows:

Notwithstanding any law to the contrary, any evidence that is seized as a result of
executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of
Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not
in violation of the constitution of the United States or Tennessee shall not be suppressed
as a result of any violation of this part or any violation of Tennessee Rules of Criminal
Procedure Rule 41 if the court determines that such violation was a result of a good faith
mistake or technical violation made by a law enforcement officer, court official, or the
issuing magistrate as defined in subsection (c).

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despite ex post facto concerns because it was a procedural statute, that the mistake in the
search warrant was a good faith or technical violation of Tennessee Rule of Criminal
Procedure 41, and that the mistake did not require the exclusion of evidence.5 The
evidence presented at the suppression hearing and the Defendant‟s trial is set forth below.

At the suppression hearing,6 the documents entered as exhibits include the
affidavit in support of the search warrant (which was dated October 18), the search
warrant itself (which has two dates, October 19 above the magistrate‟s signature and
October 18 on the “Issued on” line), and the search warrant return (dated October 18).
Hickman County Sheriff‟s Department Chief Deputy Scott Smith7 testified that he wrote
the search warrant affidavit and signed it on October 18, 2010. He met with the
magistrate, who found probable cause for the search and “issued” the warrant at 11:53
p.m. on October 18. He acknowledged that October 19 was the date listed above the
magistrate‟s signature. Chief Deputy Smith stated that the date might have changed “in
between the time that she issued [the search warrant] and [when] she signed it.” We
understand his testimony to mean that the magistrate might have dated the “Issued on”
line prior to signing and dating the signature line. Chief Deputy Smith conjectured that
because the time was “so close to midnight,” either it had become October 19 by the time
she signed the warrant or that her timepiece was incorrect. He stated that he called the
officers at the scene immediately after the signing of the search warrant. 8 Chief Deputy
Smith acknowledged that the date on the warrant return was October 18, stating that he
was referring back to the date on the search warrant when he entered the date on the
return. He denied that the search warrant was executed prior to its signing. Chief Deputy
Smith testified that a box of ammunition was recovered from the Defendant‟s residence
and that officers saw a shotgun in the residence during the search. According to
Tennessee Bureau of Investigation (“TBI”) Agent Mike Cox, the investigators did not
know that the shotgun had any significance until a witness mentioned it. Agent Cox
obtained a waiver from the Defendant to allow investigators to collect the shotgun.
Because the Defendant‟s sister had already obtained the shotgun from the residence,
Chief Deputy Smith recovered the shotgun from her.

Witnesses at the Defendant‟s trial testified that one of the victims, Amber
Hopkins, had been in a relationship with the Defendant for approximately a year prior to

5
We note that the constitutionality of ERRA has not been challenged on separation of powers
grounds in this appeal.
6
For the sake of brevity, we have omitted testimony unrelated to the issues in this appeal.
7
Chief Deputy Smith was a detective at the time of the suppression hearing. He received a
promotion prior to trial.
8
The parties did not raise the manner in which the search warrant was served as an issue.
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her death. Ms. Hopkins lived with the Defendant during that year, with the exception of
a week that she spent at the residence of James “Elvis” Kennedy, some three to four
weeks before the incident in question. Mr. Kennedy described his relationship with Ms.
Hopkins as “friends with benefits,” noting that they had known each other since they
were teenagers. Mr. Kennedy testified that he helped Ms. Hopkins move her things out
of the Defendant‟s residence several weeks before her death, and in the Defendant‟s
statement to Agents Vance Jack and Mike Cox, the Defendant said that Ms. Hopkins
returned to his home after several days at Mr. Kennedy‟s residence.

On October 17, 2010, Ms. Hopkins went to Honda Hills, a recreational area, to
ride four-wheelers with Mr. Kennedy and her daughter.9 Ms. Hopkins‟ daughter was in
an accident that resulted in a broken wrist and required a visit to the hospital. According
to Ms. Hopkins‟ mother, Belinda Conley, Ms. Hopkins asked the Defendant to take them
to the emergency room, and when he refused, Mr. Kennedy took them instead. While
Ms. Hopkins and Mr. Kennedy were at the hospital, the Defendant went to Ms. Conley‟s
house.

Ms. Hopkins and Mr. Kennedy arrived at Ms. Conley‟s house soon after the
Defendant. According to Mr. Kennedy, the Defendant thanked him for bringing the
young girl home, but when the Defendant began conversing with Ms. Hopkins, the
Defendant became angry. Ms. Conley described the Defendant as being upset when he
left her house. Ms. Hopkins spent the night at Mr. Kennedy‟s house that evening.

The following day, October 18, Mr. Kennedy worked until noon and then ran
errands with Ms. Hopkins. His friend and co-worker, John Luster, was at his house when
they returned around 6:00 p.m. The three of them then went to the Defendant‟s house in
Mr. Kennedy‟s truck. They planned to pick up Ms. Hopkins‟ belongings, which were
supposed to be by the roadside. According to Mr. Kennedy, he had not had any alcohol
that day, but Mr. Luster drank a beer on the way to the Defendant‟s house.

When they arrived at the Defendant‟s house, Mr. Kennedy parked in front of the
pile of Ms. Hopkins‟ possessions. He and Mr. Luster both exited the truck while Ms.
Hopkins remained inside. Mr. Kennedy began putting Ms. Hopkins‟ belongings in the
bed of his truck, and he was standing at his truck‟s tailgate when he first saw the
Defendant. Mr. Kennedy testified that the Defendant had “a rifle on his shoulder and a
pistol in his hand.” Mr. Kennedy yelled to Mr. Luster that the Defendant had a gun.

Mr. Kennedy said that he was standing on the back of his truck when he was shot
under his right arm. He fell to the ground but pulled himself up enough to see Ms.

9
Mr. Kennedy referred to the young girl as Ms. Hopkins‟ niece, but Belinda Conley identified
her as Ms. Hopkins‟ daughter.
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Hopkins lying on the seat of the truck. He again fell to the ground and could not move
his legs. Mr. Kennedy recalled the Defendant‟s pointing a double-barreled, twelve-gauge
shotgun at his head and his telling Mr. Kennedy to get up. Mr. Kennedy said that the
Defendant told him to move to the front of the truck so the Defendant could see Mr.
Kennedy‟s face. Mr. Kennedy managed to move himself to the front of his truck and
proceeded to beg for his life. He said that he heard Ms. Hopkins‟ voice and then “heard a
thump hit the ground.” Believing that the Defendant had dragged Ms. Hopkins out of the
truck, Mr. Kennedy looked to the side and saw her. Mr. Kennedy testified that Ms.
Hopkins said, “Johnny, don‟t touch me,” repeatedly. She looked at Mr. Kennedy and
told him, “I‟m sorry.” Thereafter, Mr. Kennedy heard the Defendant talking on the
telephone.

The Defendant called several people after the shooting. Having already called
Belinda Conley multiple times during the day to relay messages to Ms. Hopkins, he
called her again between 7:10 and 7:15 p.m., telling her, “[T]hey‟re all dead.” The
Defendant told Ms. Conley that he was sorry and hung up. The Defendant also called 9-
1-1. He told the dispatcher his name and location, that three people had come into his
home, and that he had shot them. The Defendant‟s brother-in-law, Billy Alvin Hannah,
also received a call from the Defendant that evening.

Hickman County Sheriff‟s Deputy Jody Simmons10 was the first law enforcement
officer to arrive at the Defendant‟s house. He had met the Defendant‟s sister and brother-
in-law at the turn onto the Defendant‟s road and followed them to the Defendant‟s house.
When he arrived at 7:30 p.m., he saw a black truck in the road with its doors open and
“bodies lying on the ground in the yard.” The Defendant was standing on his porch with
a gun in his hand. Deputy Richard Harkness arrived soon thereafter, and he and Deputy
Simmons took cover behind the doors of Deputy Simmons‟ car. They tried to talk the
Defendant into dropping his weapon, and Deputy Simmons fired his Taser at the
Defendant. However, the Taser did not reach him.

Centerville Police Detective Johnny Davis11 was the next to arrive at the
Defendant‟s house. The Defendant was kneeling in the driveway. Detective Davis
testified that he had been to the Defendant‟s house before because he had returned a Colt
.380 pistol to the Defendant after the pistol had been stolen and recovered. Detective
Davis reminded the Defendant who he was, and the Defendant said, “You‟re the man that
brought me this weapon[,] and you‟re the man that‟s going to have to kill me with it.”
According to Detective Davis, the Defendant stood up, took two steps backward, and
10
At the time of trial, Deputy Simmons was employed by the Centerville Police Department;
however, in October 2010, he worked for both the police department and the sheriff‟s department.
11
Detective Davis worked for both the police department and the sheriff‟s department, but he
testified that he was on duty for the police department on the night in question.
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raised his pistol. Detective Davis shot the Defendant in the right arm, causing the
Defendant to drop the pistol. Deputy Simmons saw the Defendant reaching for the pistol
with his left hand and proceeded to shoot the Defendant three times in the torso.
According to Detective Davis, the Defendant‟s sister grabbed the pistol, and he secured it
from her.

Two of the shooting victims, Ms. Hopkins and Mr. Luster, died at the scene. The
medical examiner testified that Mr. Luster had been shot once in his torso. Ms. Hopkins
had been shot twice in her right hip. Mr. Kennedy was paralyzed by the bullet that
lodged in his spine. He explained that the bullet remained there because its removal
would cause additional paralysis or death.

Investigators recovered four .380 cartridge cases from the Defendant‟s yard and
three .380 bullets from the deceased victims. Forensic testing showed that the bullets
recovered from the victims had been fired through the Defendant‟s weapon. When the
laboratory received the Defendant‟s pistol and its magazine, the magazine contained six
bullets. Detective Davis had ejected a seventh bullet from the pistol‟s chamber, and
testimony indicated that the pistol could contain a maximum of eight bullets. Testing of
the victims‟ clothing showed no signs of nitrites, gunpowder, or lead vapor, which would
have been present if the muzzle of the weapon had been closer than five feet to the
garments. Pursuant to the search warrant obtained by Chief Deputy Scott Smith, officers
seized a box of .380 ammunition from the Defendant‟s residence, and they later obtained
from the Defendant‟s sister a shotgun originally seen in the residence.

TBI Agents Mike Cox and Vance Jack assisted the local authorities in their
investigation, with Agent Cox investigating the homicides and Agent Jack investigating
the officer-involved shooting of the Defendant. The agents interviewed the Defendant at
Vanderbilt University Medical Center on October 21, 2010. A recording of the
Defendant‟s statement was played for the jury.

According to the Defendant, when Ms. Hopkins arrived with Mr. Kennedy and
Mr. Luster, one of the men was cursing at him and threatened to “cut” him. When the
man reached for the Defendant, the Defendant shot him. He said that Ms. Hopkins and
the other man began running toward him, that he panicked, and that he shot them, once
each. The Defendant stated that he only had one gun that evening and that he fired three
times. The Defendant told the agents that he did not shoot to kill the victims. According
to the Defendant, he had been diagnosed with mental health problems during the 1980s or
1990s. The day of the shooting he drank two to three beers and took his prescriptions for
Lortab and Xanax. After the shooting, he called 9-1-1 and Ms. Hopkins‟ mother. When
the law enforcement officers arrived, the Defendant told them that he wanted them to kill
him, but he denied pointing his gun at them. The Defendant told the agents that he was
attempting to give his gun to Detective Davis when the other officer shot him. When
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agents described to the Defendant a knife that they had found on his porch, he stated his
belief that the knife belonged to him.

On behalf of the Defendant, Casey Clemons testified that she drove by the
Defendant‟s house on the evening of the shooting.12 She remembered seeing a red car
but could not remember anything else about that day. Ms. Clemons agreed that her
statement to law enforcement taken two weeks after the shooting would be accurate,
including her saying that she saw two men in the yard and saw two people in a pickup
truck, but she could not determine whether the document shown to her was her statement.
In response to her testimony, Chief Deputy Smith testified that he interviewed Ms.
Clemons on November 1, 2010, and that she told him she had seen a pickup truck parked
in front of the Defendant‟s house with two people inside the truck. She also saw a pile of
property in the yard and a younger man arguing with an older man in the yard. She did
not see any firearms.

Also on the Defendant‟s behalf, his sister Mary Nell Hannah and his brother-in-
law Billy Hannah testified about the events after they arrived at the scene. According to
Mr. Hannah, the Defendant was holding his gun to the side and pointed at the ground.
An officer shot the Defendant‟s arm, causing the Defendant to drop the gun, and Mrs.
Hannah picked up the gun. Then, the officers shot the Defendant three times. Mr.
Hannah recalled the Defendant‟s telling the officers that there was one bullet left in his
gun and that he planned to use it on himself. Mrs. Hannah described essentially the same
scenario, adding that the Defendant was trying to hand her the gun when he was shot the
first time. She claimed that she already had the gun when he was shot again. Mrs.
Hannah further testified that she had raised the Defendant to an extent after the separation
of their parents and that he had been a “good kid.” According to her, the Defendant was
on medication for “nerves” and depression, and he had trouble with his vision but could
not afford glasses. The investigator hired by the Defendant‟s attorney testified that he
found a closed knife on the Defendant‟s porch the day following the shooting, which he
turned over to the sheriff‟s department.

Following the close of proof and deliberations, the jury convicted the Defendant as
charged of two counts of first degree premeditated murder, one count of attempted first
degree premeditated murder, and three counts of aggravated assault.

At the sentencing hearing to determine punishment for the first degree murder
convictions, Mr. Luster‟s mother testified about the impact of his death on their family,
especially his nine-year-old son. For the defense, Rebecca Barnett, a mitigation
specialist, testified that the Defendant dropped out of school at fifteen or sixteen and that
he worked steadily until 2010. He had been married twice, both marriages resulting in

12
Ms. Clemons testified by deposition due to a medical situation.
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divorce. He had two sons from his first marriage, but one son had been killed in an
accident. Ms. Barnett testified that the Defendant tried to kill himself after his first
divorce. She further testified that a mental evaluation given to the Defendant prior to trial
showed that the Defendant had “significant physical and mental limitations.” He was
diagnosed with “major depressive disorder with psychotic features.” The Defendant also
suffered from a heart murmur and nerve damage from a motorcycle accident. The jury
determined that one aggravating circumstance applied to the Defendant‟s sentencing—he
knowingly created a great risk of death to two or more persons other than the victim
murdered—and on that basis, the jury sentenced him to life sentences without the
possibility of parole for the murders of Amber Hopkins and John Luster. See Tenn. Code
Ann. § 39-13-204(i)(3).

After a second sentencing hearing to determine punishment for the remaining
convictions, the trial court sentenced the Defendant to twenty-five years for the attempted
murder of James Kennedy and six years for each of the three aggravated assault
convictions. The trial court ordered the attempted murder sentence to be served
consecutively to the Defendant‟s murder sentences and the aggravated assault convictions
to be served concurrently with each other and the attempted murder sentence.

The Defendant appealed to the Court of Criminal Appeals, arguing that the trial
court erred by denying his motion to suppress the evidence and that the evidence was
insufficient to support his convictions for the murders and the attempted murder, as well
as his sentences of life without the possibility of parole. State v. Pruitt, No. M2013-
02393-CCA-R3-CD, 2015 WL 5032016, at *1 (Tenn. Crim. App. Aug. 26, 2015), perm.
app. granted (Tenn. Jan. 19, 2016). The appellate court concluded that the search
warrant did not violate Tennessee Rule of Criminal Procedure 41(c) because “the correct
date and time were in fact endorsed on the warrant” and because “the date October 19,
2010, . . . on the warrant . . . was rendered „extraneous and inapplicable‟ when the
magistrate stated on the warrant that the document was „Issued on Oct. 18, 2010.‟” Id. at
*12. Addressing the trial court‟s reliance on ERRA, the appellate court noted that ERRA
would apply but for the fact that the Court of Criminal Appeals had previously
determined in State v. Hayes that ERRA could not be applied retroactively to validate a
warrant. Id. (citing State v. Hayes, No. M2012-01768-CCA-R3-CD, 2013 WL 3378320,
at *5 (Tenn. Crim. App. July 1, 2013)). The court further concluded that the seizure of
the shotgun did not violate the Defendant‟s constitutional rights because he had
voluntarily agreed to the seizure. Id. The court upheld the Defendant‟s convictions and
sentences, ruling that the evidence was sufficient to support his convictions and that the
evidence was sufficient to support the aggravating circumstance found by the jury in
sentencing. Id. at *12, *15.

The Defendant filed a timely Rule 11 application to this Court, which we accepted
with the instruction to address whether State v. Hayes was correctly decided and whether
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this Court should modify the Tennessee ex post facto analysis found in Miller v. State,
584 S.W.2d 758 (Tenn. 1979), in light of Collins v. Youngblood, 497 U.S. 37 (1990).
The other issues raised in the Defendant‟s application are sufficiency of the evidence to
uphold his convictions and sufficiency of the evidence to uphold the aggravating
circumstance relied upon by the jury in sentencing him to life without the possibility of
parole for each count of premeditated murder.

II. Analysis

A. Suppression of the Evidence

1. Standard of Review

In reviewing the trial court‟s decision on a motion to suppress, we review the trial
court‟s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008).
In doing so, we give deference to the trial judge‟s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “„[C]redibility of the witnesses, the weight
and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.‟” Northern, 262 S.W.3d at 747-48
(alteration in original) (quoting Odom, 928 S.W.2d at 23). In reviewing the findings of
fact, evidence presented at trial may “„be considered by an appellate court in deciding the
propriety of the trial court‟s ruling on the motion to suppress.‟” State v. Garcia, 123
S.W.3d 335, 343 (Tenn. 2003) (quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).
The prevailing party on the motion to suppress is afforded the “„strongest legitimate view
of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.‟” Northern, 262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d
at 23. “The question whether Rule 41(c) of the Tennessee Rules of Criminal Procedure
requires suppression of the evidence in this case is a question of law which we review de
novo with no presumption of correctness afforded to the judgment of the court below.”
State v. Coffee, 54 S.W.3d 231, 232 (Tenn. 2001).

2. Search Warrant

At issue in this case is a search warrant purported by the Defendant to be invalid
based on a failure to adhere to the specifications of Tennessee Rule of Criminal
Procedure 41(c). Rule 41 “imposes specific procedural safeguards” that “are intended „to
secure the citizen against carelessness and abuse in the issuance and execution of search
warrants.‟” Coffee, 54 S.W.3d at 233 (quoting Talley v. State, 345 S.W.2d 867, 869
(1961)). As relevant to this case, Rule 41(c)(3)(D) requires that the magistrate “endorse
on the search warrant the hour, date, and name of the officer to whom the warrant was
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delivered for execution.” Tenn. R. Crim. P. 41(c)(3)(D). If a magistrate does not comply
with that section, Rule 41 directs a court to grant an aggrieved party‟s motion to suppress
the evidence seized as a result of the noncompliant warrant. Tenn. R. Crim. P.
41(g)(5)(B). The purpose of Rule 41(c)‟s endorsement criteria is “to ensure that if a
search warrant is executed prior to its issuance, such discrepancy will be apparent on the
face of the warrant.” State v. Bobadilla, 181 S.W.3d 641, 645 (Tenn. 2005). As we
stated in Bobadilla, “We have interpreted these rules strictly; the language is plain and
the requirements are mandatory.” Id. (citing Coffee, 54 S.W.3d at 233-34).13

The search warrant in this case has two dates. Above the magistrate‟s signature,
the date listed is October 19, 2010. Below the magistrate‟s signature, the warrant reads,
“Issued on Oct. 18, 2010.” The time listed is 11:53 p.m. The search warrant return was
dated October 18, 2010. At the suppression hearing, Detective Smith suggested that there
might have been a discrepancy between his timepiece and the magistrate‟s timepiece, that
by the time the magistrate signed the warrant, the time had passed midnight and the date
had changed to October 19, or that the magistrate simply made a mistake. In any event,
because the purpose of Rule 41(c) is to ensure that a discrepancy between a warrant‟s
issuance and execution is apparent on the face of the warrant, we must disagree with the
Court of Criminal Appeals that the October 19 date was merely extraneous. Thus, if Rule
41 alone were controlling, the search warrant would be invalidated.

However, the legislature promulgated ERRA in 2011, which states:

(a) Notwithstanding any law to the contrary, any evidence that is
seized as a result of executing a search warrant issued pursuant to this part
or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is
otherwise admissible in a criminal proceeding and not in violation of the
constitution of the United States or Tennessee shall not be suppressed as a
result of any violation of this part or any violation of Tennessee Rules of
Criminal Procedure Rule 41 if the court determines that such violation was
a result of a good faith mistake or technical violation made by a law
enforcement officer, court official, or the issuing magistrate as defined in
subsection (c).

13
However, that is not to say that there are no exceptions to Rule 41‟s exclusionary rule.
Recently, this Court has discussed Rule 41 in two cases, State v. Reynolds and State v. Davidson. State v.
Davidson, --- S.W.3d. ---, No. E2013-00394-SC-DDT-DD, slip op. at 20 (Tenn. Dec. 19, 2016); State v.
Reynolds, --- S.W.3d ---, No. E2013-02309-SC-R11-CD, 2016 WL 6525856, *21 (Tenn. Nov. 3, 2016).
In each of those cases, this Court determined that Rule 41 did not prevent the Court from adopting
exceptions to the exclusionary rule. Davidson, slip op. at 20; Reynolds, 2016 WL 6525856, *21. “[W]e
note that Rule 41(g), a procedural rule promulgated by this Court, does not divest this Court of its
authority to decide whether a good-faith exception, or any other exception, should be adopted.”
Davidson, slip op. at 20 (citing Reynolds, 2016 WL 6525856, *21).
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 (b) This section does not limit or prohibit the enforcement of any
appropriate civil remedy in actions pursuant to other provisions of law
against any individual or government entity found to have conducted an
unreasonable search or seizure; provided, however, that unless otherwise
provided by federal law or the constitution of Tennessee, if any evidence is
seized as a result of a good faith mistake or technical violation, as defined
in subsection (c), the individual or government entity shall not be civilly
liable.

(c) As used in this section, unless the context otherwise requires,
“good faith mistake or technical violation” means:

(1) An unintentional clerical error or clerical omission made
by a law enforcement officer, court official or issuing
magistrate in the form, preparation, issuance, filing and
handling of copies, or return and inventory of a search
warrant;

(2) When the officer to whom the warrant is delivered for
execution is not present during the execution but an officer
with law enforcement authority over the premises does
otherwise execute the search warrant;

(3) A reasonable reliance on a statute that is subsequently
ruled unconstitutional; or controlling court precedent that is
overruled after the issuance of a search warrant, unless the
court overruling the precedent orders the new precedent to be
applied retroactively.

Tenn. Code Ann. § 40-6-108. ERRA was effective on the date of the suppression hearing
but not when the offenses were committed in this case. The Defendant contends that
application of ERRA to his case is an ex post facto violation, an argument with which the
Court of Criminal Appeals agreed. See Pruitt, 2015 WL 5032016, at *12. After an
exhaustive review of ex post facto jurisprudence, we hold that ERRA applies to the
Defendant‟s case and overrule Miller and Hayes. We also take the opportunity to revise
the ex post facto analysis for our state bench and bar.

3. Ex Post Facto Analysis

Both the federal and state constitutions prohibit ex post facto laws. The United
States Constitution has two clauses containing the prohibition, one aimed at Congress—
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Article 1, section 9, clause 3—and the other aimed at the States—Article 1, section 10,
clause 1, which provides that “[n]o State shall . . . pass any . . . ex post facto Law.” The
Tennessee Constitution in Article 1, section 11 states, “That laws made for the
punishment of acts committed previous to the existence of such laws, and by them only
declared criminal, are contrary to the principles of a free Government; wherefore no Ex
post facto law shall be made.” The animating principle of the prohibition against ex post
facto laws is basic fairness, as the United States Supreme Court explained in Peugh v.
United States:

Our holding today is consistent with basic principles of fairness that
animate the Ex Post Facto Clause. The Framers considered ex post facto
laws to be “contrary to the first principles of the social compact and to
every principle of sound legislation.” The Federalist No. 44, p. 282 (C.
Rossiter ed. 1961) (J. Madison). The Clause ensures that individuals have
fair warning of applicable laws and guards against vindictive legislative
action. See Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67
L.Ed.2d 17 (1981) . . . . Even where these concerns are not directly
implicated, however, the Clause also safeguards “a fundamental fairness
interest . . . in having the government abide by the rules of law it establishes
to govern the circumstances under which it can deprive a person of his or
her liberty or life.” Carmell[ v. Texas, 529 U.S. 513, 533 (2000)].

Peugh v. United States, 133 S.Ct. 2072, 2084-85 (2013) (second alteration in original).

The most significant case to interpret the ex post facto clause of the federal
constitution was Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). Justice Chase explained in
Calder that the prohibition against ex post facto laws was intended to prevent such “acts
of violence and injustice” as had been committed by the British Parliament. Id. at 389.14
Justice Chase then described four categories of laws that would be included in the
constitutional prohibition against ex post facto laws:

1st. Every law that makes an action, done before the passing of the law,
and which was innocent when done, criminal; and punishes such action.
2nd. Every law that aggravates a crime, or makes it greater than it was,
when committed. 3rd. Every law that changes the punishment, and inflicts
a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or

14
For further historical information regarding the development of ex post facto laws, see then-
Judge Koch‟s opinion in Utley v. Tenn. Dep’t of Correction, 118 S.W.3d 705, 714-18 (Tenn. Ct. App.
2003).
- 12 -
 different, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender.

Id. at 390. These four categories have been the mainstay of federal case law in this area
ever since, although there have been expansions, contractions, and refinements in the
following centuries.

For example, in Kring v. Missouri, 107 U.S. 221 (1883), the United States
Supreme Court reasoned that the Calder categories were not all-encompassing and stated
its preference for a broader construction, such as

“an ex post facto law is one which, in its operation, makes that criminal
which was not so at the time the action was performed, or which increases
the punishment, or, in short, which, in relation to the offense or its
consequences, alters the situation of a party to his disadvantage.”

Kring, 107 U.S. at 228-230 (quoting Justice Washington‟s jury charge in United States v.
Hall, 26 F. Cas. 84, 86 (C.C.D. Penn. 1809) (No. 15,285), aff’d sub nom. United States v.
Hall, 10 U.S. 171 (1810)). As part of this expansion of ex post facto jurisprudence, the
Court in Kring also determined that many changes to rules of criminal procedure work to
the disadvantage of defendants and should be deemed ex post facto legislation. Id. at
232.

However, the very next year, the Court found that a change to an evidentiary rule
did not violate the prohibition against ex post facto laws. As the Court set forth in Hopt
v. Utah, 110 U.S. 574, 587-88 (1884), Utah had changed its rules of criminal procedure
to expand the class of people who were qualified to testify at trials by allowing felons to
testify. In Hopt‟s case, when the offense in question was committed, felons could not
testify in court. Id. By the time of his trial, the rules had changed, and a felon gave
testimony that “tended to implicate the defendant in the crime charged against him.” Id.
at 587. The Court compared Hopt‟s case to Kring, noting that in Kring, the Court had
found that a substantial right of the defendant had been deprived. Id. The Court in Hopt
determined that the change of law affecting the defendant did not deprive him of a
substantial right and echoed the Calder categories when it determined that:

[s]tatutes which simply enlarge the class of persons who may be competent
to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do not
attach criminality to any act previously done, and which was innocent when
done, nor aggravate any crime theretofore committed, nor provide a greater
punishment therefor than was prescribed at the time of its commission, nor

- 13 -
 do they alter the degree, or lessen the amount or measure, of the proof
which was made necessary to conviction when the crime was committed.

110 U.S. at 589. The Hopt Court went on to say that the change in the law it was
considering “relate[d] to modes of procedure only, in which no one can be said to have a
vested right, and which the state, upon grounds of public policy, may regulate at
pleasure.” Id. at 590. Finally, the Court stated, “Such regulations of the mode in which
the facts constituting guilt may be placed before the jury can be made applicable to
prosecutions or trials thereafter had, without reference to the date of the commission of
the offense charged.” Id.

The more narrow view of ex post facto jurisprudence won out over the Kring
Court‟s broad construction, but the language in Kring about altering a defendant‟s
situation to his disadvantage continued to be influential. In Beazell v. Ohio, 269 U.S.
167, 170 (1925), the Court stated, “But it is now well settled that statutory changes in the
mode of trial or the rules of evidence, which do not deprive the accused of a defense and
which operate only in a limited and unsubstantial manner to his disadvantage, are not
prohibited.” Then, in Lindsey v. Washington, the Court cited Kring to support its
statement that “[t]he Constitution forbids the application of any new punitive measure to
a crime already consummated, to the detriment or material disadvantage of the
wrongdoer.” 301 U.S. 397, 401 (1937) (citing Thompson v. Utah, 170 U.S. 343, 351
(1898); In re Medley, 134 U.S. 160, 171 (1890); Kring, 107 U.S. at 228-29). By the time
the Court decided Dobbert v. Florida in 1977, the Court had clearly pulled away from
Kring‟s broad construction. See Dobbert v. Florida, 432 U.S. 282, 293 (1977) (“Even
though it may work to the disadvantage of a defendant, a procedural change is not ex post
facto.”). Nevertheless, the Court continued to use the term “disadvantage” in Weaver v.
Graham when it articulated the two elements that must exist for a law to be ex post facto:
“it must be retrospective, that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24,
29 (1981) (footnotes omitted) (citing Lindsey, 301 U.S. at 401; Calder, 3 U.S. (3 Dall.) at
390).

The Court finally overruled Kring in the landmark case of Collins v. Youngblood
in 1990. 497 U.S. at 50. In Collins, the Court reviewed the history of ex post facto
jurisprudence in an attempt to arrive at the original understanding of ex post facto. Id. at
41-52. In particular, the Court noted the wide acceptance of the Calder categories as the
exclusive definition of ex post facto laws and referred to other historical sources—
Blackstone‟s Commentaries and early state constitutions that gave fuller descriptions of
ex post facto laws than did the federal constitution—to support the proposition that only

- 14 -
laws falling into the Calder15 categories would be ex post facto laws. Id. at 42-44. The
appellant in Collins argued for a broader construction that would prohibit retroactive
legislation “if it deprives an accused of a „substantial protection‟ under law existing at the
time of the crime.” Id. at 44. In analyzing this issue, the Court determined that
“confusion” existed in the interpretation of the ex post facto clause because some prior
cases stated that procedural changes would not violate the clause while other cases stated
that even procedural changes might violate the clause if the changes deprived a defendant
of „“substantial protections with which the existing law surrounds the person accused of
crime.‟” Id. at 45 (quoting Duncan v. Missouri, 152 U.S. 377, 382-83 (1894)) (citing
Dobbert, 432 U.S. at 292-93 & n.6; Beazell, 269 U.S. at 171; Mallett v. North Carolina,
181 U.S. 589, 597 (1901)). The Court resolved the apparent conflict in these cases by
clarifying “that the constitutional prohibition is addressed to laws, „whatever their form,‟
which make innocent acts criminal, alter the nature of the offense, or increase the
punishment.” Id. at 46 (citations omitted). The Court stated that merely calling a statute
“procedural” would not prevent examination under the ex post facto clause and that
references to “substantial protections” in prior cases did not mean that the Court had
expanded its interpretation of the clause. Id.

This was not the end of the Court‟s analysis, however. The Court determined that
two cases—Kring and Thompson v. Utah—represented an unjustified departure from the
original understanding of the prohibition against ex post facto laws. Id. at 47-52. “These
cases have caused confusion in state and lower federal courts about the scope of the Ex
Post Facto Clause . . . .” Id. at 47. The Collins Court wrote:

The holding in Kring can only be justified if the Ex Post Facto Clause is
thought to include not merely the Calder categories, but any change which
“alters the situation of a party to his disadvantage.” We think such a
reading of the Clause departs from the meaning of the Clause as it was
understood at the time of the adoption of the Constitution, and is not
supported by later cases. We accordingly overrule Kring.

Id. at 50. The Court also overruled Thompson, in which a change from the right to have a
twelve-person jury when the crime was committed to an eight-person jury at the time of
trial was held to have „“deprive[d] him of a substantial right involved in his liberty‟ and
„materially alter[ed] the situation to his disadvantage.‟” Id. at 51 (alterations in original)
(quoting Thompson, 170 U.S. at 352-53).

15
The Court actually referred to the Beazell, 269 U.S. at 169-70, recitation of the categories, but
this formulation included only three of the original four Calder categories. Collins, 497 U.S. at 42-43.
The Court made clear in Carmell, 529 U.S. at 539, that all four of the original categories remain viable.
- 15 -
 Until 1979, Tennessee followed federal precedent with regard to ex post facto
analysis. See Stinson v. State, 344 S.W.2d 369, 372 (Tenn. 1961); Davis v. Beeler, 207
S.W.2d 343, 349-50 (Tenn. 1947). Then, in Miller v. State, 584 S.W.2d 758 (Tenn.
1979), this Court determined that the state constitution provided broader ex post facto
protections than did the federal constitution and added a fifth category—“Every law
which, in relation to the offense or its consequences, alters the situation of a person to his
disadvantage,”—to the original four from Calder v. Bull. Miller, 584 S.W.2d at 761
(citing State v. Rowe, 181 A. 706, 710 (N.J. 1935)). This Court did not provide any
reasoning to support the expanded ex post facto protections; instead, the Miller Court
merely quoted the state ex post facto clause and declared that it was “sufficiently broad to
proscribe the application of a statute fixing punishment in excess of that provided by a
law in effect at the time of the commission of an offense.” Id.

The language for the fifth category was derived from Rowe, 181 A. at 710, a New
Jersey Supreme Court case. In that case, the New Jersey Supreme Court listed the
original four Calder categories and two additional categories derived from a secondary
source. 181 A. at 709. The court also made the following observation:

“Throughout the several jurisdictions, variations of and extentions
[sic] to the foregoing have occurred, and such, „to make the classification
sufficiently general to embrace all the laws which have been adjudged ex
post facto,‟ have been assembled by [the Corpus Juris encyclopedia] into a
further class, viz.: „Every law which, in relation to the offense or its
consequences, alters the situation of a person to his disadvantage.‟”

Id. at 709-10 (quoting Lindsley v. Bd. of Managers of N.J. State Prison, 151 A. 294, 295
(N.J. 1938)). Two things are clear from this recitation: (1) the Corpus Juris
categorization was intended to be a catch-all, and (2) the language for this categorization
and the spirit behind it were derived from Kring, a case that has since been overruled
because “it was a mistake to stray beyond Calder‟s four categories.” Carmell, 529 U.S.
at 539 (emphasis omitted).

In the decades since Miller, its impact on ex post facto analysis has been minimal.
This court has never relied solely on the fifth category in determining the outcome of a
case and has cited the fifth category as one of its reasons for finding an ex post facto
violation only once. State v. Odom, 137 S.W.3d 572, 582-83 (Tenn. 2004). In State v.
Pearson, this court arrived at somewhat of a compromise between the federal and state ex
post facto analyses:

Accordingly, in determining whether an ex post facto violation exists in the
context of sentencing, the critical question under both the United States and
Tennessee Constitutions is whether the law changes the punishment to the
- 16 -
 defendant‟s disadvantage, or inflicts a greater punishment than the law
allowed when the offense occurred.

858 S.W.2d 879, 883 (Tenn. 1993). The Miller Court‟s determination that the state
constitution provides broader ex post facto protections than the federal constitution and
the fifth category of ex post facto laws it introduced have been often ignored or relegated
to a parenthetical or footnote. See, e.g., State v. Rogers, 992 S.W.2d 393, 401-02 (Tenn.
1999), aff’d, 532 U.S. 451 (2001) (listing the four Calder categories and including
Miller‟s fifth category in a parenthetical); State v. Pike, 978 S.W.2d 904, app. at 925-26
(Tenn. 1998) (citing Miller but not mentioning its expanded categories of ex post facto
laws); State v. Ashby, 823 S.W.2d 166, 167 (Tenn. 1991) (ignoring Miller entirely); Smith
v. Campbell, 995 S.W.2d 116, 118-19 (Tenn. Ct. App. 1999) (citing Miller but leaving
out the fifth category); Kaylor v. Bradley, 912 S.W.2d 728, 731-32 (Tenn. Ct. App. 1995)
(listing only the Calder categories and concluding that this Court and the United States
Supreme Court agree “that two elements must be present in order for a criminal or penal
law to run afoul of the Ex Post Facto Clause. First, the law must apply retrospectively to
events occurring before its enactment. Second, the law must disadvantage the offender
affected by it.”); State v. Young, 904 S.W.2d 603, 607 (Tenn. Crim. App. 1995); State v.
Godsey, No. 52, 1991 WL 50180, at *2 n.1 (Tenn. Crim. App. 1991); Griffin v. State, 595
S.W.2d 96, 100 (Tenn. Crim. App. 1980).

However, the Court of Criminal Appeals has relied on the fifth category
occasionally, including in the case sub judice. See State v. Hayes, No. M2012-01768-
CCA-R3-CD, 2013 WL 3378320, at *6-8 (Tenn. Crim. App. July 1, 2013) (relying on
Hanners and Miller and ruling that the defendant‟s altered situation did not have to relate
to his offense or punishment); State v. Hanners, 235 S.W.3d 609, 612-13, 613 n.2 (Tenn.
Crim. App. 2007) (“The Tennessee Supreme Court also indicated in Miller that the Ex
Post Facto Clause of the Tennessee Constitution has a broader reach and provides more
protection than its federal counterpart. Therefore, whether a person is „disadvantaged‟ by
the law is a valid inquiry in a Tennessee ex post facto analysis; whereas, the federal
analysis has shifted away from this more lenient standard.” (citations omitted)). It is
because of these cases that we are now reconsidering the analysis of ex post facto laws in
Miller.

Generally, “this Court will not interpret a state constitutional provision differently
than a similar federal constitutional provision unless there are sufficient textual or
historical differences, or other grounds for doing so.” Phillips v. Montgomery Cnty., 442
S.W.3d 233, 243 (Tenn. 2014). Justice Harbison, writing for the dissent in Miller, wrote:

The Constitution of Tennessee has neither been cited, briefed nor
argued in this case. I think that it is an unfortunate development in
constitutional law for the Court, [s]ua sponte, to conclude that the term “ex
- 17 -
 post facto” has a different meaning in the Constitution of Tennessee from
the identical words used in the Constitution of the United States.
Heretofore, the courts of this state, in discussing ex post facto laws, have
cited and relied upon interpretations of Article I, Section 10, of the United
States Constitution, and there has never been the slightest suggestion that
the provisions of the Tennessee Constitution were any different in content,
scope and meaning from those in the federal constitution. See Stinson v.
State, 208 Tenn. 159, 344 S.W.2d 369 (1961); Davis v. Beeler, 185 Tenn.
638, 207 S.W.2d 343 (1947).

Miller, 584 S.W.2d at 763 (Harbison, J., dissenting). We agree with Justice Harbison.
The Miller Court did not analyze whether there were any such differences before
declaring that the Tennessee clause provided more expansive protections. If anything,
the ex post facto clause of the Tennessee Constitution could be read more narrowly than
the federal clause based on the text because the state clause specifies that ex post facto
laws are those “made for the punishment of acts committed previous to the existence of
such laws, and by them only declared criminal.” TENN. CONST. art. I, § 11.

As for the history of the state clause, our clause is similar to the ones relied upon
in Calder by Justice Chase in reaching his definition. In particular, Justice Chase relied
in part on the definition of ex post facto found in the constitution of North Carolina.
Calder, 3 U.S. at 391-92.16 The Tennessee clause was included in the 1796
Constitution‟s Declaration of Rights, which was largely drawn from North Carolina‟s
Constitution of 1776. See Lewis L. Laska, A Legal and Constitutional History of
Tennessee, 1792-1972, 6 MEM. ST. U. L. REV. 563, 592-94 (1975-1976). Thus, Justice
Chase‟s defining of “ex post facto” came after the term had already been defined in the
constitutions of North Carolina and Tennessee. The early state constitutions that
included prohibitions against ex post facto laws, including that of North Carolina,
actually influenced the framers of the federal constitution. See Collins, 497 U.S. at 43.
Indeed, the North Carolina Supreme Court in Dickinson v. Dickinson, 7 N.C. (3 Mur.)
327, 329-30 (1819), treated Justice Chase‟s definition as expanding the definition of “ex
post facto” rather than limiting it.17 Justice Chase explained that “[t]he expressions „ex

16
“Retrospective laws, punishing acts committed before the existence of such laws and by them
only declared criminal, are oppressive, unjust, and incompatible with liberty, and therefore no ex post
facto law shall be enacted.” N.C. CONST. art. I, § 16. North Carolina‟s courts analyze state and federal
ex post facto claims “under the same definition.” North Carolina v. Wiley, 565 S.E.2d 22, 45 (N.C.
2002).
17
In the course of determining whether the North Carolina ex post facto clause encompassed the
aggravation of a defendant‟s punishment by a statute passed after the criminal conduct, the court called
Justice Chase‟s definition of “ex post facto laws” a judicial construction of the concept and then applied it
to the state court‟s interpretation of the state clause. Dickinson, 7 N.C. (3 Mur.) at 329-30.
- 18 -
post facto laws,‟ are technical, they had been in use long before the Revolution, and had
acquired an appropriate meaning, by Legislators, Lawyers, and Authors.” Calder, 3 U.S.
at 391. In other words, “ex post facto” is “a term of art” with a meaning that was already
established “at the time of the framing of the Constitution.” Collins, 497 U.S. at 41
(citing Calder, 3 U.S. at 391, 396-97 (opinions of Chase, J., and Paterson, J.)). As the
Collins court reasoned, any expansion of the Calder definition is inconsistent “with the
understanding of the term „ex post facto law‟ at the time the Constitution was adopted.”
Id. at 47.

There is simply nothing in the text of our constitution nor in our history that
supports the Miller Court‟s holding that the meaning of “ex post facto” in Tennessee is
more expansive than the definition provided by Justice Chase in 1798. Therefore, we
conclude that the holding of Miller must be overruled to the extent that it expanded the
meaning of the Tennessee ex post facto clause beyond the meaning of the federal ex post
facto clause. See In re Estate of McFarland, 167 S.W.3d 299, 306 (Tenn. 2005)
(“Generally, well-settled rules of law will be overturned only when there is obvious error
or unreasonableness in the precedent . . . .”); see also State v. McCormick, 494 S.W.3d
673, 683-85 (Tenn. 2016) (discussing the role of stare decisis). In so doing, we hold that
the ex post facto clause of the Tennessee Constitution has the same definition and scope
as the federal clause.

We now turn our attention to examining whether application of ERRA to validate
the search warrant in the Defendant‟s case is an ex post facto violation. To violate the ex
post facto clause, a statute must fall within one of the four Calder categories. Stated
another way, “[t]o fall within the ex post facto prohibition, a law must be retrospective—
that is, „it must apply to events occurring before its enactment‟—and it „must
disadvantage the offender affected by it,‟ . . . by altering the definition of criminal
conduct or increasing the punishment for the crime . . . .” Lynce v. Mathis, 519 U.S. 433,
441 (1997) (quoting Weaver, 450 U.S. at 30) (citing Collins, 497 U.S. at 50).

The first question, therefore, is whether the application of ERRA in this case was
retroactive. “The Ex Post Facto Clause raises to the constitutional level one of the most
basic presumptions of our law: legislation, especially of the criminal sort, is not to be
applied retroactively.” Johnson v. United States, 529 U.S. 694, 701 (2000). “A law is
retrospective if it „changes the legal consequences of acts completed before its effective
date.‟” Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver, 450 U.S. at 31),
abrogated in part by California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n.3
(1995). However, “intervening procedural changes” may be upheld “even if application
of the new rule operated to a defendant‟s disadvantage in the particular case.” Landgraf
v. USI Film Prod., 511 U.S. 244, 275 n.28 (1994). Nonetheless, merely labeling a law
“procedural” does not prevent review under the ex post facto clause, see Collins, 497
U.S. at 46, because “it is the effect, not the form, of the law that determines whether it is
- 19 -
ex post facto,” Weaver, 450 U.S. at 31. “The Constitution deals with substance, not
shadows. Its inhibition was levelled at the thing, not the name.” Cummings v. Missouri,
71 U.S. 277, 325 (1866). As the Collins Court wrote, “[T]he prohibition which may not
be evaded is the one defined by the Calder categories.” Collins, 497 U.S. at 46.

The United States Supreme Court and this Court have each upheld changes in the
law that occurred after an offense but before a trial when those changes were procedural
and did not fall into one of the Calder categories. See Collins, 497 U.S. at 52; Dobbert,
432 U.S. at 293-94; Thompson v. Missouri, 171 U.S. 380, 387 (1898) (stating that “we
cannot perceive any ground upon which to hold a statute to be ex post facto which does
nothing more than admit evidence of a particular kind in a criminal case upon an issue of
fact which was not admissible under the rules of evidence as enforced by judicial
decisions at the time the offense was committed”); Hopt, 110 U.S. at 589; Pike, 978
S.W.2d at app. at 925-26; Ashby, 823 S.W.2d at 167 (“There is no authority for the
position that legislative changes in the standard of review by appellate courts are ex post
facto laws.”); State v. Pilkey, 776 S.W.2d 943, 945 (Tenn. 1989) (citations omitted) (“The
trial . . . occurred well after the effective date of the statutes[,] and we find no merit to the
suggestion by appellant that the statutes were applied in such a way as to constitute ex
post facto laws in any constitutional sense.”). But see Odom, 137 S.W.3d at 581 (citation
omitted) (“Although the distinction between substantive and procedural law has been
recognized by the courts of this state, we have not applied this distinction in capital
sentencing.”).

The form of ERRA is clearly procedural: it is found in the criminal procedural title
of the Tennessee Code and is a modification of a rule of criminal procedure. See Tenn.
Code Ann. § 40-6-108. In addition, the nature of the statute also lends itself to a
conclusion that it is a procedural/remedial statute because the exclusionary rule itself “is
a judicially created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of the party
aggrieved,” United States v. Calandra, 414 U.S. 338, 348 (1974), whereas the ex post
facto clause provides “fair warning of applicable laws and guards against vindictive
legislative action,” Peugh, 133 S. Ct. at 2085.

Most importantly, however, the statute does not fall into any of the Calder
categories. It does not make an action criminal which was innocent when done; it does
not aggravate a crime; it does not change the punishment for the crime; nor does it
change the rules of evidence so that less or different testimony is required to convict the
offender. See Calder, 3 U.S. at 390. We recognize that some of the evidence against the
Defendant would have been excluded but for ERRA; however, this is not the same as
“reducing the quantum of evidence required to convict[,] . . . eliminating an element of
the offense, . . . or lowering the burden of proof,” all actions that are addressed by
Calder‟s fourth category. See Carmell, 529 U.S. at 532.
- 20 -
 To return to the specific facts of the case before us, two dates were written on the
search warrant—October 18 and October 19. The search warrant return was dated
October 18. At the suppression hearing, Chief Deputy Scott Smith testified that the
warrant was not executed until the magistrate was finished issuing it. The trial court
found that ERRA applied to validate the search warrant because the mistake in the date
was “a good faith mistake or technical violation.” While not stated explicitly, based on
the evidence presented to resolve this issue—the warrant itself and Chief Deputy Smith‟s
testimony—the court‟s ruling had to turn on Chief Deputy Smith‟s credibility. The actual
error itself is a textbook example of a clerical error made during the preparation of a
search warrant. See Tenn. Code Ann. § 40-6-108(c)(1). Chief Deputy Smith‟s
testimony, implicitly found by the trial court to be credible, tends to show that the clerical
error was unintentional. See id. Therefore, we conclude that the error in the date was a
good faith or technical mistake and that the trial court properly ruled that, pursuant to
ERRA, the evidence should not be suppressed. Furthermore, this pretermits the
Defendant‟s other evidentiary issue concerning the admission of the shotgun.

B. Sufficiency of the Evidence

The standard for appellate review of a claim challenging the sufficiency of the
State‟s evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, the Defendant must demonstrate that no reasonable trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443
U.S. at 319. This standard of review is identical whether the conviction is predicated on
direct or circumstantial evidence, or a combination of both. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); see also State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the jury as trier of fact. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn.
1990). This Court presumes that the jury has afforded the State all reasonable inferences
from the evidence and resolved all conflicts in the testimony in favor of the State; as
such, we will not substitute our own inferences drawn from the evidence for those drawn
by the jury, nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at
- 21 -
379. Because a jury conviction removes the presumption of innocence that the defendant
enjoyed at trial and replaces it with one of guilt at the appellate level, the burden of proof
shifts from the State to the convicted defendant, who must demonstrate to this Court that
the evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729
(citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

The Defendant was convicted of two counts of premeditated murder and one count
of attempted premeditated murder. He does not deny that he fired the rounds that killed
Mr. Luster and Ms. Hopkins and paralyzed Mr. Kennedy; instead, he asserts that he was
justified in his use of force because Mr. Luster, who was a large man and was under the
influence of alcohol, threatened “to cut” him. He argues that Mr. Kennedy‟s version of
events was not credible based on Ms. Clemons‟ testimony about what she saw driving by
the Defendant‟s property. In particular, he raises the “true man” doctrine to support his
argument that he acted in self-defense.

Pursuant to Tennessee Code Annotated section 39-11-611(b) (2009),

(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force against another person
when and to the degree the person reasonably believes the force is
immediately necessary to protect against the other‟s use or attempted use of
unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful
activity and is in a place where the person has a right to be has no duty to
retreat before threatening or using force intended or likely to cause death or
serious bodily injury, if:

(A) The person has a reasonable belief that there is an
imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or
serious bodily injury is real, or honestly believed to be real at
the time; and

(C) The belief of danger is founded upon reasonable grounds.

The “no duty to retreat rule,” also known as the “true man” doctrine, holds that “one need
not retreat from the threatened attack of another even though one may safely do so.”
State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995). “[T]his doctrine applies only: (1)
when the Defendant is without fault in provoking the confrontation, and (2) when the
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Defendant is in a place where he has a lawful right to be and is there placed in reasonably
apparent danger of imminent bodily harm or death.” Id. (citations omitted). The “true
man” doctrine does not give a person the right to begin a confrontation or to escalate a
confrontation unreasonably, and the force used must be reasonable under the
circumstances. Id. Whether the “true man” doctrine applies in a particular case is a jury
question. Id.

Viewed in the light most favorable to the State, the evidence at trial showed that
none of the victims were armed, and two of the victims, Mr. Kennedy and Ms. Hopkins,
could not have been involved in any confrontation, even if one believed the Defendant‟s
story about Mr. Luster‟s threat to him. Ms. Hopkins was sitting inside the truck when the
Defendant shot her, and Mr. Kennedy was standing on the back of his truck when the
Defendant shot him. The evidence also showed that all of the victims were shot from
more than five feet away. In addition, even if true, the Defendant‟s confession showed
that he escalated any confrontation. “The jury determines not only whether a
confrontation has occurred, but also which person was the aggressor. It also decides
whether the Defendant‟s belief in imminent danger was reasonable, whether the force
used was reasonable, and whether the Defendant was without fault.” Id. The jury
resolved any conflicts in the testimony against the Defendant, as was their prerogative.
We conclude that the evidence was sufficient to support the Defendant‟s convictions and
for the jury to reject the Defendant‟s self-defense claim.

C. Sufficiency of the Evidence – Aggravating Circumstance (i)(3)

The Defendant has framed his final argument as a matter of the sufficiency of the
evidence to support the imposition of sentences of life without the possibility of parole.
The crux of his argument, however, is that the mitigating factors should have outweighed
the aggravating circumstance.

The State did not seek the death penalty in this case; therefore, when the jury
convicted the Defendant of two counts of first degree murder, it then had to determine
whether to sentence him to life or life without the possibility of parole. Tenn. Code Ann.
§ 39-13-202(c), -207. The State relied on one aggravating circumstance: “The Defendant
knowingly created a great risk of death to two (2) or more persons, other than the victim
murdered, during the act of the murder.” See Tenn. Code Ann. § 39-13-204(i)(3). The
Defendant submitted three mitigating factors pursuant to Tennessee Code Annotated
section 39-13-204(j):

(1) The defendant has no significant history of prior criminal activity;

(8) The capacity of the defendant to appreciate the wrongfulness of the
defendant‟s conduct or to conform the defendant‟s conduct to the
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 requirements of the law was substantially impaired as a result of mental
disease or defect or intoxication, which was insufficient to establish a
defense to the crime but which substantially affected the defendant‟s
judgment; and

(9) Any other mitigating factor that is raised by the evidence produced
by either the prosecution or defense, at either the guilt or sentencing
hearing.

For factor number nine, the Defendant relied on his history of gainful employment. At
the sentencing hearing, he also presented evidence that he was raised in a broken home
and had a major depressive disorder. The jury determined that the State had proven
aggravating circumstance (i)(3) beyond a reasonable doubt and sentenced the Defendant
to life without the possibility of parole on each premeditated murder charge.

“The relevant question for an appellate court is whether, after reviewing the
evidence in the light most favorable to the State, any rational trier of fact could have
found the existence of the aggravating circumstance beyond a reasonable doubt.” State v.
Nesbit, 978 S.W.2d 872, 887 (Tenn. 1998) (citing State v. Cazes, 875 S.W.2d 253 (Tenn.
1994)). “This Court has previously held that [the (i)(3)] aggravating circumstance
„contemplates either multiple murders or threats to several persons at or shortly prior to
or shortly after an act of murder upon which the prosecution is based.‟” Johnson v. State,
38 S.W.3d 52, 60 (Tenn. 2001) (footnote omitted) (quoting State v. Cone, 665 S.W.2d 87,
95 (Tenn. 1984)). Such is clearly the case here, where the Defendant killed two people
and wounded a third. We conclude that a rational trier of fact could have found that
aggravating circumstance (i)(3) was proven beyond a reasonable doubt. Once an
aggravating circumstance has been proven, the decision whether to sentence a defendant
to life or to life without the possibility of parole is in the jury‟s “considered discretion.”
Tenn. Code Ann. § 39-13-207(c). The Defendant has not shown that “the sentence was .
. . imposed arbitrarily, so as to constitute a gross abuse of the jury‟s discretion.” Tenn.
Code Ann. § 39-13-207(g). Therefore, we conclude that the Defendant‟s sentence is
supported by the evidence.

CONCLUSION

We overrule Miller, hold that the state ex post facto clause and the federal ex post
facto clause have the same definition, and conclude that the application of Tennessee
Code Annotated section 40-6-108 to this case was not an ex post facto violation.
Accordingly, we conclude that the trial court properly refused to suppress the evidence
obtained as a result of the search warrant. The judgments of the Court of Criminal
Appeals are affirmed on the separate grounds stated herein with regard to the suppression
and ex post facto issues and are affirmed as written regarding the Defendant‟s remaining
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issues. It appearing that the Defendant, John Henry Pruitt, is indigent, costs will be taxed
to the State of Tennessee.

_________________________________
ROGER A. PAGE, JUSTICE

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