IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1997 SESSION
FILED
October 10, 1997
STATE OF TENNESSEE, * C.C.A. # 02C01-9610-CC-00363
Appellant, * LAUDERDALE COUNTY
VS. * Hon. Joseph H. WCecil Crowson, Jr.
alker, Judge
Appellate C ourt Clerk
JOHN H. GILLON, * (Criminally Negligent Homicide; Aggravated
Assault; Assault--State Appeal)
Appellee. *
For Appellee: For Appellant:
J. Thomas Caldwell Charles W. Burson
Attorney at Law Attorney General & Reporter
114 Jefferson Street
Ripley, TN 38063 Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Mark Davidson
Assistant District Attorney General
302 Market Street
P.O. Box 562
Somerville, TN 38063
OPINION FILED: ___________________
REVERSED AND REMANDED
GARY R. WADE, JUDGE
OPINION
The defendant, John H. Gillon, was convicted of the criminally
negligent homicide of Terry Phillips, the aggravated assault of Lemmie Haynie, and
the assault of James Haynie. The trial court imposed sentences of one year, two
years, and eleven months, twenty-nine days respectively. When, however, the
defendant filed a motion for judgment of acquittal or, in the alternative, a new trial,
the trial court acquitted the defendant on all counts. The state appeals from that
judgment.
At about dusk on the evening of April 6, 1995, there was an
automobile accident at the intersection of Highway 51 and Industrial Road in
Lauderdale County involving the defendant and each of the three victims. A
witness, Montel Maners, Jr., was traveling south on the divided, four-lane Highway
51 when he "heard a noise and saw a ... white cloud" on the southbound lanes.
When he successfully drove through the smoke, he saw two vehicles: "an El
Camino, in a ditch, and a pickup truck on its side." Maners stopped to assist and
first determined that the two people inside the El Camino were conscious and
breathing. As he approached the pickup truck, which was flipped on its passenger
side on the edge of a ditch, he saw the defendant exit the truck. Maners recalled
asking him if he was okay and the defendant responded, "Yeah. I was driving" and
something like "[d]id you see that person pull out in front of me?"
Maners testified that the occupant on the passenger side of the truck
did not have a pulse and was not breathing. A third occupant of the truck was also
seriously injured. Maners could hear ambulance sirens and decided to leave the
passengers in the truck until more help arrived. At that point, he recalled that the
defendant said, "Well, I was driving." Although he did not see the collision, Maners
2
estimated that he was 100 to 150 yards away when the accident occurred. When at
the scene, he specifically remembered the defendant saying that the El Camino had
"just pulled right out in front" of him.
Maners testified that Highway 51 was a four-lane road accommodating
north and south traffic. He stated that Industrial Road was two-lane road,
intersecting Highway 51.
Maners described the accident scene as follows:
[Each car was] on the west shoulder of 51 going
southbound lane on the west in the ditch and the road
right [as] it crosses Industrial Road ...; the pickup truck
was [lying] on its passenger side facing northbound and
from the road itself, it was probably 20, 30 feet from the
actual road in the ditch, and the other truck was probably
50 to 70 feet, the El Camino sitting on its wheels facing --
and it was just about in the center of the ditch facing
southbound.
Trooper Willie Thompson, who investigated the accident, testified that
the defendant identified himself as the driver of the truck. He recalled that the
defendant was very disoriented and did not remember what had happened. Trooper
Thompson remembered that it "was still fairly light" when he arrived at the scene.
The trooper determined that the defendant, who he believed was traveling west on
Industrial Road, would have traveled across "two lanes of [Highway 51] traffic that
are northbound, the median, and then the inside lane of the southbound lane"
before the collision. He described the accident scene at Highway 51 as "a long,
straight stretch of road both ways, where you can see a long distance ...." The
trooper concluded that the El Camino, occupied by the victims Lemmie and James
Haynie, was traveling south on Highway 51 and that the defendant, accompanied by
the deceased victim Phillips and Davis, was traveling from the east on Industrial
3
Road. He found that the El Camino had left about fifteen feet of skid marks in the
southbound lane of Highway 51.1
William Davis, a passenger in the defendant's truck, testified that he
had spent the afternoon at the defendant's mother's house doing construction work.
He remembered that around 6:00 P.M., the defendant drove his truck to Crockett
County to pick up the deceased victim, Terry Phillips. Davis recalled that he was in
the middle, Phillips was on the passenger side, and the defendant was driving.
According to Davis, the three men were "just riding" with no particular destination in
mind when the defendant stopped to purchase a twelve-pack of beer. The last thing
Davis remembered was that the defendant put the beer in a cooler in the bed of the
truck before driving away from the store, which is located about a mile and a half
from the accident scene. Davis described the lighting conditions as "dusk dark." In
a coma for four days after the accident, Davis had no other recollection of the
events surrounding that day.
James Haynie, the driver of the El Camino, testified that he and his
father were traveling south on Highway 51 when his father warned that a "truck
wasn't going to stop up the road...." He recalled driving "further on down the road
and the next thing I [knew], I was in Memphis." Haynie estimated his car's speed at
55 to 60 miles per hour. He did not specifically recollect seeing the truck at any time
before the accident. When asked if he was "looking at [his] father," Haynie replied,
"Right." James Haynie suffered a fractured skull, had stitches in his elbow, and had
a crushed kneecap, which had to be removed.
1
The trooper testified in great detail using a diagram of the roads. The diagram was not made
a part of the record; much o f the trooper's testimony made little sense in written form.
4
His father, Lemmie Haynie, testified that he was a passenger in his
son's El Camino when the wreck occurred. As the two approached the intersection,
Haynie saw the defendant's truck traveling Industrial Road, "moving pretty fast." He
recalled that he was 50 to 70 feet from the intersection when he told his son that the
truck might not stop. He estimated the driving time from the intersection at ten to
twelve seconds. He acknowledged that a Co-op at that intersection blocked the
view from Highway 51 to the Industrial Road but could not otherwise explain his
son's failure to see the defendant's truck. Haynie, who suffered a broken leg in the
accident requiring the insertion of pins and rods, rebroke the leg several months
later. Still on crutches at the time of trial, he had not been able to work.
Deborah Underwood, who was traveling north on Highway 51 at the
time of the accident, saw the defendant's truck cross the two north-bound lanes
about 150 to 200 feet in front of her. She described the truck's speed as "fast" and
testified that it did not slow down before it reached the intersection. She saw no
indication that either the El Camino or the truck braked or skidded before the
collision took place.
Nioka Laurence Ottinger, the defendant's mother, testified that Billy
Davis was driving her son's truck when the men left her residence shortly before the
accident. She claimed "it was getting dark" at that time.
The defendant, who claimed that it took him about two weeks to regain
his memory of the incident, testified that Davis was driving and that he was sitting in
the middle. He contended that Davis slowed down at the intersection but did not
stop. He remembered that after the collision, he had climbed out the back window
of the truck's cab. He testified that he did not remember talking to Maners or Officer
5
Thompson. The defendant insisted that he never "saw the other vehicle at all ...."
He remembered looking one way and Davis looking the other but denied seeing any
oncoming traffic. When asked on direct whether he remembered whether he was
the driver or the passenger, he testified as follows:
I really believe that I was in the middle because when I
woke up -- I mean, if I'd been driving, you know, I would
have been looking, you know, wouldn't have been any
way that I could have looked, you know, all the way with
two people, you know, right in the cab. And I know I've
seen it over and over in my head because when I come
to it was a sound that Billy was making. It was like he
was trying to breathe and I just won't ever forget the
sound. It was just, you know, trying to breath through
water or something, just real hard to breathe. And he
was laid in my lap and when I slip up, he laid over on
Terry and I got out.
On cross-examination, the following exchange occurred:
Defendant: I remember riding in the truck and I
remember looking but when we had the accident, as far
as I -- the best I can recollect, I was not driving 'cause I--
Prosecutor: Do you remember that or are you just
assuming that?
Defendant: ... The best I can remember, I know
whenever we stopped, I know that Billy was on one side
of me and Terry was on the other and I was in the
middle.
Prosecutor: Whenever you stopped?
Defendant: Whenever the--whenever the accident
occurred -- whenever--like I woke up. I was just kind of
out of it....
Prosecutor: So, you -- you're saying the only thing you
recall is waking up after you came to a stop sideways,
turned sideways, after you flipped?
Defendant: I remember ... like coming down and
looking down the highway.... We like slowed up at the
first intersection like where the stop sign is, we come
down like to the road and Billy was looking back up the
road and he pulled on --
Prosecutor: Who was driving?
6
Defendant: Billy was driving.
Prosecutor: So now you say you remember Billy driving.
Defendant: I remember that I was sitting in the middle
and I remember looking down the highway. He must
have been driving.
Based on this testimony, the jury found the defendant guilty of the
criminally negligent homicide of Terry Phillips, the aggravated assault of Lemmie
Haynie, and the assault of James Haynie. The trial court sentenced the defendant
to one year for the homicide, two years on the aggravated assault, and eleven
months, twenty-nine days, on the assault. Almost two and a half months later, the
trial court granted the defendant an acquittal on all three convictions.
The standard by which the trial court determines a motion for judgment
of acquittal at the end of all the proof is, in essence, the same standard which
applies on appeal in determining the sufficiency of the evidence after a conviction;
that is, whether "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). After a conviction, the state is entitled to the strongest legitimate view of the
evidence and any reasonable inferences which might be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
A motion for judgment of acquittal presents a question of law. State v.
Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). The trial judge is concerned only
with the "legal sufficiency of the evidence and not with the weight of the evidence."
Id.; see also State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). The
evidence must be viewed in the light most favorable to the state. Adams, 916
S.W.2d at 473. "An appellate court must apply the same standard as a trial court
7
when resolving issues predicated upon the grant or denial of a motion for judgment
of acquittal." Id. at 473.
A Class D aggravated assault occurs when the defendant recklessly
commits an assault and causes serious bodily injury. Tenn Code Ann. § 39-13-
102(a)(2) (Supp. 1993). Assault occurs when a person "[i]ntentionally, knowingly, or
recklessly causes bodily injury to another." Tenn. Code Ann. § 39-13-101(a)(1).
Reckless conduct, a requirement for each of the two offenses, is defined as follows:
[A] person ... acts recklessly with respect to
circumstances surrounding the conduct or the result of
the conduct when the person is aware of but consciously
disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk
must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the
circumstances as viewed from the accused person's
standpoint.
Tenn. Code Ann. § 39-11-302(c) (emphasis added).
Criminally negligent homicide is "[c]riminally negligent conduct which
results in death." Tenn. Code Ann. § 39-13-212. Criminal negligence is defined as
follows:
[A] person ... acts with criminal negligence with respect to
the circumstances surrounding that person's conduct or
the result of that conduct when the person ought to be
aware of a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk
must be of such a nature and degree that the failure to
perceive it constitutes a gross deviation from the
standard of care that an ordinary person would exercise
under all the circumstances as viewed from the accused
person's standpoint.
Tenn. Code Ann. § 39-11-302(d) (emphasis added). The comments to this section
describe subsection(d) as "in line with case law of Tennessee on the degree of
negligence required for criminal culpability. The proposition that criminal liability be
based on a higher degree of negligence than that required for civil liability is well
8
settled." Sentencing Commission Comments to Tenn. Code Ann. § 39-11-302(d)
(citing Claybrook v. State, 51 S.W.2d 499 (Tenn. 1932); Hiller v. State, 50 S.W.2d
225 (Tenn. 1932); Copeland v. State, 285 S.W. 565 (Tenn. 1926)).
It is undisputed that the death of Terry Phillips and the injuries to the
Haynies were caused by the automobile wreck. The issue is whether the evidence
is sufficient to sustain a finding of recklessness for the assault convictions or
criminal negligence for the homicide conviction. "[W]hat differentiates recklessness
from criminal negligence is the degree of awareness--that is, recklessness includes
awareness, but disregard, of a risk while criminal negligence involves a lack of
awareness when one should be aware." State v. Butler, 880 S.W.2d 395, 398
(Tenn. Crim. App. 1994). If an element of an offense is that the defendant acted
with criminal negligence, "that element is also established if a person acts
intentionally, knowingly, or recklessly." Tenn. Code Ann. § 39-11-301(a)(2). The
definitions of negligence and recklessness both require a "substantial and
unjustifiable risk" for which the disregard of (for recklessness) or ignorance of (for
negligence) "constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed from the accused
person's standpoint." Tenn. Code Ann. § 39-11-302(c), (d). In this case, the central
issue is whether the defendant's conduct amounted to a "gross deviation from the
standard of care."
In our view, the proof presented at trial supported a finding of the
recklessness necessary to support each of the two assault convictions. A
reasonable juror could have concluded that the defendant, as driver of the vehicle,
disregarded the stop sign at the intersection. There was evidence that the
defendant, a resident of that general area of the county, was aware of the four-lane
9
highway, the stop sign, and the distance from his point of entry through the median
to the point of impact. Yet, despite having two clear opportunities, the defendant
never slowed his truck as he drove over three lanes of traffic and a median strip.
This, in our view, warranted the jury's conclusion that the defendant was aware of
and consciously disregarded the risk that a collision would occur. These facts are
similar to those considered by this court in State v. Ramsey, 903 S.W.2d 709, 712
(Tenn. Crim. App. 1995): "[t]here is no other conclusion but that the defendant was
aware of the substantial and [un]justifiable risk that an accident could ensue ... and
that he consciously disregarded that risk by driving in such a manner."
Our determination that the defendant was reckless in the operation of
his truck leads us to the inevitable conclusion that the defendant was also criminally
negligent. See Tenn. Code Ann. § 39-11-301(a)(2). Thus, there was sufficient
evidence to support all three convictions.
The defendant makes the argument that the proof, while adequate to
establish civil liability, does not reach the level of negligence required to sustain a
criminal conviction. He relies on a long line of cases which hold that a mere
accident will not suffice to establish criminal negligence:
It is true in such cases allowance must be made
for misadventure or accident, as distinguished from
culpable negligence; and that, to support a conviction of
crime, the accused must have been guilty of a higher and
grosser degree of negligence than that which merely
suffices to support a judgment in a civil case.
To convict a motorist of homicide by negligence, it
is, of course, not enough to prove that he was guilty
merely of a want of due care, inadvertence, or
inattention, but it must be shown that his negligence in
driving was such that he knew or reasonably should have
known that it might endanger human life, and that the
death charged was the natural and probable result of
such negligence.
10
Roe v. State, 358 S.W.2d 308, 314 (Tenn. 1962) (citations omitted); see also Newby
v. State, 388 S.W.2d 136 (Tenn. 1965); Potter v. State, 124 S.W.2d 232 (Tenn.
1939); State v. Norris, 874 S.W.2d 590 (Tenn. Crim. App. 1993); State v. Timothy
Gose, No. 03C01-9406-CR-00244 (Tenn. Crim. App., at Knoxville, Jan. 29, 1996).
The defendant makes a compelling argument. While the defendant
may not have intended the disastrous results of the collision, intent is not required to
sustain a finding of either recklessness or criminal negligence. In the numerous
cases in which automobile accidents have lead to convictions for either criminally
negligent or reckless homicide, the unifying strand is that the risk is of such a nature
and degree that injury or death is likely and foreseeable.
In State v. William Terry Martin, No. 01C01-9602-CC-00067 (Tenn.
Crim. App., at Nashville, Jan. 31, 1997), the defendant was convicted of vehicular
homicide, a Class C felony defined as a reckless killing by the operation of an
automobile. See Tenn. Code Ann. § 39-13-213(a)(1). In Martin, the proof
established that the defendant had drifted into the lane of on-coming traffic several
times. A witness saw the defendant's "head drop to the side of the headrest and
snap back several times." Martin, slip op. at 8. The defendant eventually drifted
over the center line and collided with an on-coming car, causing the death of the
driver of the other car. Our court found sufficient evidence:
Continuing to operate his vehicle on a two-lane highway,
at dusk, after losing control several times suggests that
the Defendant was aware of, yet disregarded the risks of
his conduct. ... 'The test appears to be whether or not
the driver, violating the highway statute ... does so
consciously, or under circumstances which would charge
a reasonable prudent person with appreciation of the fact
and the anticipation of consequences injurious or fatal to
others.'
Id., slip op. at 9 (quoting Trentham v. State, 206 S.W.2d 291, 292 (Tenn. 1947)
11
(emphasis added)).
In State v. Ramsey, the defendant was convicted of criminally
negligent homicide. The proof presented at trial showed that the defendant was
driving at an excessive speed2 on a familiar road when his car veered slightly into
the lane of oncoming traffic. The defendant's car was driven back into its correct
lane when "the centrifugal force of the defendant's car entering a right turn and its
speed caused it to enter the opposite lane of traffic again, ... hitting a ... pick-up
truck." Id., 903 S.W.2d at 711. Our court found the evidence sufficient: "[t]here is
no other conclusion but that the defendant was aware of the substantial and
[un]justifiable risk that an accident could ensue from driving fast and carelessly on a
hilly, curvy road and that he consciously disregarded that risk by driving in such a
manner." Id. at 712. The court found there was a "substantial and [un]justifiable
risk" that injury would ensue.
In Reed v. State, 110 S.W.2d 308 (Tenn. 1937), also involving a head-
on collision, the court found the evidence sufficient to support a conviction for
involuntary manslaughter:
In the case before us, in view of the traffic on this
highway, this collision was not only a probable result but
almost an inevitable result of such negligence as the
defendant's. Likewise we think the act of defendant in
undertaking to pass this truck, turning out to his left in
heavy and closely approaching opposing traffic, was an
act malum in se. It was an act on par with firing a gun
into a crowded street, or dropping a heavy object into
such a street from a tall building.
Reed, 110 S.W.2d at 308-09 (emphasis added). The graphic language of the Reed
case expresses the essence of the cases where a car wreck has supported a
2
The speed limit was thirty-five miles per hour. Witnesses speculated the defendant had
been driving anywhere from fifty to eighty miles per hour. The parties simply stipulated the defendant
was sp eeding. Ramsey, 903 S.W.2d at 712.
12
homicide conviction: the risk must be of such a nature and degree that injury or
death is very likely. This type of language is used repeatedly in the cases finding
the evidence sufficient. Our supreme court reiterated the rule: "[I]t must be shown
that his negligence in driving was such that he knew or reasonably should have
known that it might endanger human life, and that the death charged was the natural
and probable result of such negligence." State v. Johnson, 541 S.W.2d 417, 419
(Tenn. 1976) (quoting Roe v. State, 358 S.W.2d 308, 314 (Tenn. 1962) (emphasis
added)). See also Crawley v. State, 413 S.W.2d 370 (Tenn. 1967); Newby v. State,
388 S.W.2d 136 (Tenn. 1965).
The defendant has relied on the holding in State v. Timothy Gose, No.
03C01-9406-CR-00244 (Tenn. Crim. App., at Knoxville, Jan. 29, 1996), a case in
which the court found the evidence insufficient to support a conviction for vehicular
homicide. The defendant-driver asked his passenger "to check out the passing
gear." The defendant suddenly pressed the gas pedal causing the passing gear to
engage. The vehicle accelerated and the right wheels veered off the road. When
the defendant tried to correct the direction of the vehicle, his brakes locked, the
vehicle fishtailed and, despite the defendant's efforts, slid sideways into a dump
truck traveling in the opposite direction. The defendant, who was traveling between
45 and 53 miles per hour in a 40 miles per hour zone, explained that he was
distracted only momentarily when his passenger dropped a cigarette to the floor of
the vehicle.
Our court found the evidence insufficient because, "in the light most
favorable to the State ..., the conduct of Gose does not constitute a gross deviation
from the standard of care .... The mainstay of the state's case was speed.... While
this exceeded the posted speed, it did not, standing alone, constitute gross
13
negligence or recklessness. Rather, it constituted a want of due care, inadvertence,
and inattention." Gose, slip op. at 3 (internal quotation marks omitted). In Gose, it
was deemed unforeseeable that traveling slightly over the speed limit would result in
the death of the driver of the approaching dump truck. There was a "want of due
care," but the risk of death was not a probable or likely consequence.
State v. Clarence Cunningham, No. 01C01-9309-CC-00291 (Tenn.
Crim. App., at Nashville, July 14, 1995), is another case where our court found the
evidence insufficient. In Cunningham, the defendant was convicted of criminally
negligent homicide when a passenger in his truck "inexplicably" leapt from the
defendant's moving vehicle, suffered head injuries, and died. There was testimony
that the victim stated she wanted to exit the vehicle immediately before she leapt out
the passenger side window. Our court found the evidence insufficient:
[The] defendant [did not] anticipate[] that the victim would
jump from the moving vehicle. ... It is not sufficient to
say, with perfect hindsight, that the defendant should
have known that the victim would jump from his vehicle.
To affirm this conviction we must ... find that [the
defendant] failed to perceive that his conduct presented
an unjustifiable risk to the victim. Furthermore, the
failure to perceive the risk must have been a gross
deviation from the standard of care that an ordinary
person would exercise under the circumstances. We
cannot find such a failure in this case.
Cunningham, slip op. at 4-5. In Cunningham, it was not foreseeable that the victim
would jump from the moving vehicle; the victim's actions were described as
"inexplicabl[e]." Id., slip op. at 3. Thus, there was insufficient evidence to support
the defendant's conviction.
In Crawley v. State, 413 S.W.2d 370 (Tenn. 1967), the evidence was
found to be insufficient when the defendant's vehicle struck the rear end of a second
vehicle, which was parked partially on a highway, and then struck the victim, who
14
was standing beside the vehicle. The accident occurred at night. Observing that
the state needed to offer proof that "the death charged was the natural and probable
result of such negligence," the court found the evidence insufficient to support a
conviction for involuntary manslaughter. Id. at 373 (quoting with approval Roe, 358
S.W.2d at 295). Again, the death of the victim was not deemed to be predictable in
these circumstances.
Thus, this court must conclude that when one disregards a stop sign
and enters a four-lane, divided highway, and, without slowing down, crosses through
a median connector, the risk of injury is surely "substantial and unjustifiable." We
conclude there is sufficient evidence to support all three convictions.
We must now determine the appropriate remedy. Both parties have
filed supplemental briefs addressing the thirteenth juror rule and the appropriate
procedure to follow when a conviction is subsequently reinstated by the appellate
court. Rule 33(f), Tenn. R. Crim. P., provides, in part, as follows: "The trial court
may grant a new trial following a verdict of guilty if it disagrees with the jury about
the weight of the evidence." In interpreting Rule 33(f), our supreme court has held
as follows:
Rule 33(f) imposes upon a trial court judge the
mandatory duty to serve as the thirteenth juror in every
criminal case, and that approval by the trial judge of the
jury's verdict as the thirteenth juror is a necessary
prerequisite to imposition of a valid judgment.
State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995) (emphasis added). "The
purpose of the thirteenth juror rule is to be a 'safeguard ... against a miscarriage of
justice by the jury.'" State v. Moats, 906 S.W.2d 431, 434 (Tenn. 1995) (quoting
State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)).
15
In Carter, our supreme court established the standards for determining
whether the trial judge has performed his role as thirteenth juror:
[N]o explicit statement on the record is required by the
trial judge that the duty has been performed.
Accordingly, where a motion for new trial is denied
without a statement, an appellate court may presume
that the trial judge approved the jury's verdict as the
thirteenth juror.
896 S.W.2d at 120.
The state argues the trial judge has already performed his role as
thirteenth juror and accredited the jury's verdict; therefore, no remand is needed and
the jury's verdict and the defendant's sentence should be reinstated. The defendant
contends that when the trial judge granted an acquittal, he rejected the jury's verdict;
therefore, the remedy must be a new trial. In our view, however, the trial judge has
not yet exercised his responsibility as a thirteenth juror.
Had the trial judge entered judgment and then denied the motion for
new trial, our inference would be that he acted as thirteenth juror. See Carter, 896
S.W.2d at 122. Yet, in this instance, the defense motion for new trial, which
included an allegation that the verdict was not supported by the weight of the
evidence, was not addressed. The acquittal rendered the issue moot.
We also reject the notion that the trial judge has implicitly fulfilled his
duties as thirteenth juror. This court rejected a similar argument in State v.
Dankworth:
There are important distinctions between the
setting aside of a verdict under Rule 33(f) and a
judgment of acquittal under Rule 29 of the Tennessee
Rules of Criminal Procedure. To resolve a motion for a
judgment of acquittal under Rule 29, the trial court must
examine the sufficiency of the evidence. In determining
the sufficiency, a court considers the evidence presented
16
at trial in the light most favorable to the prosecution and
determines whether any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. The court does not reweigh or
reevaluate the evidence. Nor does a court substitute its
inferences for those drawn by the trier of fact from the
evidence. If the trial judge determines that the evidence
is insufficient to support a jury's guilty verdict beyond a
reasonable doubt, a judgment of acquittal is granted.
The state may not retry the defendant but has the right of
appeal.
Rule 33(f) requires the trial judge to independently
weigh the evidence and assess the witness' credibility.
The trial judge must be personally satisfied with the
verdict.
Dankworth, 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995) (citations omitted).
In State v. Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995), this
court reversed the trial judge's grant of a judgment of acquittal, remanded for a
ruling on all issues raised in the motion for new trial, and then consideration of the
evidence as thirteenth juror:
[T]he record reflects that the trial court did not rule upon
the merits of these issues. Thus, it would be unfair to the
appellee to finalize this lawsuit without giving the
appellee and the state the opportunity to argue the merits
of the issues raised in the motion for a new trial, and
having the trial court resolve these issues.
Adams, 916 S.W.2d at 477.
In Moats, our supreme court ruled that "an appellate court must grant
a new trial when the record contains statements by the trial court expressing
dissatisfaction or disagreement with the weight of the evidence or the jury's verdict,
or statements indicating that the trial court misunderstood its responsibility or
authority to act as the thirteenth juror." Moats, 906 S.W.2d at 435-36. The court
declined to remand the case for the trial judge to perform its role as thirteenth juror,
primarily because "[t]he more time that passes between the trial and the trial court's
evaluation of the evidence as the thirteenth juror, the less meaningful the 'safeguard'
17
becomes." Id. at 435. The supreme court was concerned that the trial judge would
be hindered in exercising its responsibility because of the passage of time. Id. at
434-35.
In Moats, our supreme court implied that a thirteenth juror
determination after a remand may not always "insure that the purpose and
protection of the thirteenth juror rule" is protected. Id. at 435. However, the trial
judge, after being asked to fulfill its role as thirteenth juror, merely deferred to the
jury verdict: "I don't feel it is appropriate for me to overturn that jury's conclusion...."
Id. at 433. The circumstances here are almost identical to those in Adams, where
the thirteenth juror function had been pre-empted by the entry of a judgment of
acquittal.
In a recent case, State v. Ronnie W. Nail, No. 03C01-9406-CR-00197 (Tenn.
Crim. App., at Knoxville, May 19, 1997), the trial judge had been defeated in his re-
election effort before he was able to rule on a motion for new trial; his successor
denied the motion for new trial. On appeal, this court, while acknowledging that the
successor judge could exercise thirteenth juror responsibility, granted a new trial on
the basis that the successor judge could not fulfill the role of thirteenth juror in that
case because there was no record of the trial available for review:
[T]he successor judge would need to determine the
extent to which witness credibility was a factor in the
case and the extent to which he had sufficient knowledge
or records before it in order to decide whether the
credible evidence, as viewed by the judge, adequately
supported the verdict. If these determinations could not
be made by the successor judge, the verdict could not be
approved and a new trial should have been granted.
Nail, slip op. at 7 (citations omitted). In State v. Bilbrey, 858 S.W.2d 911 (Tenn.
Crim. App. 1993), this court ruled that a successor to the trial judge who began the
proceeding could, if sufficiently familiar with the record, preside until the conclusion
18
of the case. Implicit in the Nail ruling is that a judge whose first exposure to the
case was presiding over the motion for new trial could rule on the motion if the
record was available so long as witness credibility was not an overriding issue. Only
eighteen months have passed since the trial of this case. The entire record,
including the arguments of counsel and the ruling on the motion for judgment of
acquittal, is available for the trial judge to review, if necessary, to refresh his
memory. In our view, the more practical remedy is for the trial judge to be given the
opportunity for exercising his duties under the thirteenth juror rule, and consider all
grounds in the motion for new trial.
For these reasons, we remand this case to the trial court to act as
thirteenth juror, to rule upon the motion for new trial, and to consider sentencing
alternatives if appropriate.3
__________________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
Joe B. Jones, Presiding Judge
_______________________________
Curwood Witt, Judge
3
W hile there is a referen ce to the C orrection s Man agem ent Cor poration fo r a
recommendation on alternative sentencing, the trial court never ruled on the appropriateness of an
alternative s entenc e.
19
State v. Gillon
Court: Court of Criminal Appeals of Tennessee
Date filed: 1997-10-10
Citations: 15 S.W.3d 492
Copy Citations