Opinion
C.C.A. No. 01C01-9711-CR-00538.
December 31, 1998.
Davidson County, Honorable Walter C. Kurtz, Judge,
AFFIRMED
FOR THE APPELLANT, Karl F. Dean, Metro Public Defender, Jeffrey A. DeVasher, Assistant Public Defender.
FOR THE APPELLEE, John Knox Walkup, Attorney General Reporter, Timothy Behan, Assistant Attorney General.
Victor S. (Torry) Johnson III, District Attorney General, Roger Moore, Assistant District Attorney General.
OPINION
The defendant was convicted by a jury of first degree premeditated murder; the same jury simultaneously sentenced him to forty years incarceration. On direct appeal this Court affirmed the defendant's conviction but remanded the matter for resentencing. See State v. Jefferson, 938 S.W.2d 1, 23 (Tenn.Crim.App. 1996). On remand the defendant was sentenced by a jury to life imprisonment. In this direct appeal the defendant contends that the trial court erred when it 1) denied his motion to impanel a jury to determine his guilt or innocence; 2) admitted into evidence the minute entry from the prior trial which showed the jury's verdict of guilty but from which had been redacted its imposition of the forty year sentence; and 3) instructed the jury that the only sentence it could impose was life imprisonment. Finding no merit in these complaints, we affirm the judgment of the trial court.
The defendant first contends that because this Court previously found the convicting jury's verdict "void," he is entitled to a new trial on the issue of his guilt or innocence. He argues, "Since the jury at [his] 1993 trial was exposed to inaccurate sentencing information, its verdict as to both guilt and innocence is void." We disagree. In the initial direct appeal of this matter this Court held as follows:
In this case, the verdict returned by the jury was void because the punishment set by the jury was below the minimum punishment for the offense of murder in the first degree. The trial court did not have the authority to change the jury's verdict from forty (40) years to confinement for life in the Department of Correction. Since the jury found the appellant guilty of premeditated murder and the evidence contained in the record supports the verdict, the verdict of the jury finding the appellant guilty of premeditated murder is affirmed. However, this case must be remanded to the trial court for a new sentencing hearing.
Jefferson, 938 S.W.2d at 23 (footnote omitted). Prior to so holding this Court noted, but obviously declined to adopt, the defendant's argument that "if the punishment was below the minimum punishment for murder in the first degree, . . . the judgment of the trial court [should be reversed] and remand[ed] for a new trial." Id. at 20. Clearly, then, this Court has already decided that the convicting jury's verdict is not void in its entirety but only as to sentencing. Significantly, our Supreme Court denied the defendant's application for permission to appeal from this decision.
On resentencing, the trial court denied the defendant's motion for a jury to determine his guilt or innocence on the basis of the judicial doctrine of "the law of the case." The trial court was correct. As noted by our Supreme Court in Clements v. Pearson,
`A ruling or decision once made in a particular case by an appellate court, while it may be overruled in other cases, is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review. A ruling or decision so made is said to be "the law of the case."
352 S.W.2d 236, 237 (Tenn. 1961) (quoting Black's Law Dictionary, Third Ed.). The doctrine applies to issues that were actually before the court as well as to issues that were necessarily decided by implication, see Ladd v. Honda Motor Co., 939 S.W.2d 83, 90 (Tenn.App. 1996), and it applies to decisions that the Supreme Court has declined to review. Id. at 91. Clearly the doctrine applies here and this issue is therefore without merit.
The defendant next complains about the minute entry of the convicting jury's verdict admitted into evidence at the resentencing. Upon the state's motion and over the defendant's objection, the trial court ruled that the minute entry should have redacted from it the jury's assessment of the defendant's punishment at "forty years in the penitentiary." The defendant claims that the redacted document misled the sentencing jury and "falsely indicated" to it that the convicting jury had not earlier sentenced the defendant. We are unpersuaded. The convicting jury's sentence of the defendant was clearly irrelevant in the context of his resentencing. "Evidence which is not relevant is not admissible." Tenn. R. Evid. 402. The only evidence of the prior jury's action which was relevant in the context of the resentencing proceeding was its verdict of guilt. The redacted minute entry accurately reflected that information. This issue is without merit.
Finally, the defendant contends that the trial court erred when it instructed the jury, "The sentence for murder in the first degree is the sentence of life imprisonment." We disagree and return to this Court's earlier opinion in this matter: "In summary, this Court is bound by the Supreme Court's decision inMiller [v. State, 584 S.W.2d 758 (Tenn. 1979),] that the only possible punishment for first degree murder is life imprisonment."See Jefferson, 938 S.W.2d at 21. Thus, the trial court did not err in so instructing the resentencing jury. This issue is without merit.
The judgment of the trial court is affirmed.
__________________________ PAUL G. SUMMERS, Judge
CONCUR:
_____________________________ JOSEPH M. TIPTON, Judge
_____________________________ JOE G. RILEY, Judge
DISSENTING OPINION
I respectfully dissent in this case. I believe that through an unfortunate misapplication of the law, the defendant was wrongly denied a new trial as to the issue of his guilt. Therefore, I believe that the law of the case doctrine should not be applied and that we should grant the defendant a new trial.
I need not detail in this opinion the tortuous path of this case. The offense occurred in 1968. In the defendant's 1993 trial, the court applied the 1968 law which provided that the jury decide both guilt and punishment. The trial court instructed the jury that for first degree murder, the jury could impose a specific term of years from twenty years to life imprisonment. The jury found the defendant guilty of first degree murder and imposed a forty-year sentence.
However, the Tennessee Supreme Court had previously held that the statute under which the defendant was sentenced was unconstitutional and that the valid sentencing statute for first degree murder provided a sentence of life imprisonment. See Miller v. State, 584 S.W.2d 758, 762 (Tenn. 1979). Thus, the defendant received an illegal sentence.
In an attempt to correct the matter, the trial court imposed a life sentence. On appeal, this court held that only a jury could impose the sentence. State v. Jefferson, 938 S.W.2d 1, 21-22 (Tenn.Crim.App. 1996), app. denied (Tenn. Nov. 25, 1996). However, it affirmed the first degree murder conviction upon its determination that in the light most favorable to the state, the evidence was sufficient to support the verdict. Id. at 23.
The majority opinion concludes that this court's opinion in the earlier appeal constitutes the law of the case, which is not to be revisited. The majority opinion sees significance in the fact that the Tennessee Supreme Court denied a further review in that appeal. However, I believe that the law of the case doctrine should not be absolute. If the previous decision was clearly wrong or if manifest injustice would result, a court may revisit the issue. See Messinger v. Anderson, 225 U.S. 436, 443, 32 S.Ct. 739, 740 (1912), Davis v. Davis, 96 F.2d 512, 515 (D.C. Cir. 1938); Daly v. Volpe, 376 F. Supp. 987, 994 (W.D. Wash. 1974). Also, our supreme court has stated, "This Court is not committed to all the views expressed in an opinion of the intermediate appellate courts when we deny discretionary review."Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987). In fact, the court has acknowledged that "the sheer volume of intermediate cases" that it reviews factors into its refusal to be bound by the denial of review. Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993). Thus, likewise for our purposes, the fact that our supreme court denied review in the earlier appeal should not be significant in determining whether or not the law of the case doctrine should apply.
The problem in the present case is a fundamental one. The defendant has a constitutional right to trial by a jury. See U.S. Const. amend. IV; Tenn. Const. art. I, §§ 6, 9. In fact, our state constitution contemplates that "the jury shall have a right to determine the law and the facts, under the direction of the court. . . ." Tenn. Const. art. I, § 19. In this respect, inState v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991), our supreme court stated the following:
It is widely perceived by those who observed the operations of our trial courts in previous times, when juries had the additional responsibility of setting punishment, that often they seemed to find guilt of a crime not necessarily most strongly suggested by the evidence, but one the punishment for which suited their sense of justice for the case.
The court determined that under the statute defining the instruction for the then existing range of punishment, "if the defendant were to be sentenced to punishments greater than what the jury finding guilt was instructed would be imposed," prejudice to the judicial process would occur. Id. at 327.
I believe that it is fundamentally unfair and an improper limitation on the right to trial by jury to instruct a jury with sentencing authority that it has the power to sentence the defendant to forty years for first degree murder when the actual sentence for the offense must be life imprisonment. With proper instructions, the jury in the present case may well have considered second degree murder and a term of forty years to represent justice in the case. What happened to the defendant is no different than what happened to the defendant in Cook. I believe that we should give the defendant the relief he seeks and order a new trial on both the issue of guilt and the issue of sentencing.
________________________________ Joseph M. Tipton, Judge