State of Tennessee v. Letalvis Cobbins, Lemaricus Davidson and George Thomas - Order - Majority and Dissenting

IN THE C:OURrI' 0 :

1 CRIMINAL. APPEA1,S OF TENNESSEE

A?' 'KNOXVILLE

STATE OF TENNESSEE LETALVIS COBBTNS,

\I.

1,EMARTCUS DAVIDSON, and GEORGE THOMAS

Criminal Court for IOlox County

30s.86216A, 86216B. & 86216C

NO. E2012-OO448-CC.4-KIO-DD

ORDER

The State of Tennessee. through [he 0fIic.e of tlie Attorney Gcncral, has filed an

application for an extraordinary appeal. see Term. R. App. P. 10, seeking review of thc trial

court's order granting the Defendants ncw trials on grounds that: ( I ) f o ~ m eJudge Richard

r

Baumgartner, who presided over each of the Defendants' trials, committed "nunierons

cgcgious actions" in violation of both the criminal law and the Code of Judicial Conduct

while presiding over the cases resulting in structural en-or that denied these Defendants their

rights to fair trials; and (2) former Judge Baumgartner did not discharge his duty as the

thirteciith juror in these cases before leaving thc bench and the successorjudge on these cases

"is unable L serve as thirteentlijuror" given "the nu~nerous

o issues concellling the credibility

of both cei-lain tcstifyiiig witnesscs and the trial judge."

In our rcview of this matter, we first will set out the chronology. The Defendants

were found guilty by three separate ju~ics the first degree murders o f Channon Chtistian

of

and Christopher Newsom as well as varioi~sother non-capital offenses arising oul of the

same criminal episode that resulted in the inurders; including, but not limited to, especially

aggravated kidnapping. aggravated rape, and especially aggravated robbery.

The Defcndants were tried separately on the following dates:

Dcfcndant Cobbiiis: .August 17 lhrough August 26,2009

Defendant Davidson: October 10 through October 30, 2009

Defcndan t Thomas: December 1 through December 10,2009

Ilcfendant Lemaricus Davidson was sentenced to death by his jury for the murders of

both Christian and Newsoin. Defendant George Tl~omas sentenced to life without the

was

possibility of parole for the murders of both Christian and Newsoln by his jury. Defendant

Letalvis C:obhins was sentenced by his jury to life without the possibility of parole for the

murder of Christian. Defendant Vanessa Coleman, who is not a party to this motion,

received an effective sentence of fifty-three years for faditation of the first degree murder

of Christjan, as well as for her other convictions. Her trial was held from May 3 through

May IO,20t 0.

At thc sentencing heal-ings on the Defendants' non-capital convictions, former Judge

Baumgartner co~nmented length on his \lienJ of the evidence presented during each of the

at

trials in the caul-se of his discussion of the appropriateness of applying certain statutory

aggravating and mitigating circurnstanccs to the non-capital sentencing decisions.

Subsequently, on March 10, 201 1, he pled guilty to one count of official misconduct and

resigned fsonAl bench that same day. At that point, the Defendants' motions for new trial

the

had not yet been heard. Subsequently, Senior Judge Jon Ke11-y Blackwood was designated

by the suprclne court to hear the Defendants' motions for new trial and perform all other

duties required of a trial judge on thcsc cases.

On June 9,201 1 , a hearing was held 011 the motion for new trial filed by counscl for

Defendant Cobbins. At that hearing, Senior Judgc Blackwood stated that he believed he

could "procced with the inotion for a new trial."

Senior Judge Blackwood then proceeded to discuss, based upon his review of the

record in this case, the extent he believed that witness credibility had been a factor. Hc then

conc;luded that while witness credibility "play[edl a part in every crimii~al trial," there was

"ample other physical evidence in the record" and "ample other testimony in the record" such

that he could discharge his responsibility as thirteenth juror in the case. Senior Judge

Blackwood then announced that he "accept[cdl and approve[d] the verdict of the jury as the

13"' juror." However, he announced that he would not enter an order denying Defcndant

Cobbins' motion for new trial until defense counsel in that case and the other cases had an

opportunity to amend their motions for new trial and present argument at a hearing on the

structural error issue that had been raised by counsel for Defendant Cobbins in an

amendment to his nlotion for new trial filed on the morning of the June 9, 201 1 hearing.

Counsel for the Defendants subsequently filed amended rnotio~lsfor new trials,

asserting both the structural error and thisteenth juror arguments. At the conclusion of the

hearing on the amended motions, Senior Judgc Blackwood granted all four Defendants new

trials based both upon his stl-uctural error finding and his collclusion that he could not act as

thirteenth juror in this case. In his findings of facts and conclusions of law, entered

following the hearing, Senior Judge Rlackwood concluded that former Judgc Baumgartner

had not acted as thirteenth juror as to thc trials and that they "were beset by significant

credibility concerns segarding both cci-tain witnesses and the trial judge." The order stated

that while tlie court "had previously determined that it was able to serve as thirteenth juror

in Mr. Cobbins' case, . . . any order denying Mr. Cobbins' motion for new tiial relative to the

thirteenth juror issue [was] hereby withdrawn."

Defendant Coleman is not a party to this motion. The State did not seek to appcal the

granting of a new trial as to Coleman. In its Rule 10 application, the State asserts that

cc[b]ccause thirteenth-juror rule was already satisfied prior to [Senior] Judge Blackwood's

the

designation to hear these cases, Judge Blackwood exceeded his authority to vacate the juries'

verdicts under the thirteenth-juror rule." Finally, citing to State v. McKim, 21 5 S.W.3d 781,

792 (Tenn. 2007), the State argues that without a n extraordinary appeal in these cases, it will

"lose a right or interest that may never be recaptured," because if the Defendants are retried,

the challenge by the State to the order granting the new trials will have become moot. We

will consider these claims.

Ii~itially,we note that our decision in this order pertaining to the State's Rule 10

application can neither affirm nor reverse the trial court's grounds for granting new trials.

Furthermore, if the State's application to appeal were granted, only two possible results could

occur in each case following briefing and oral arguments. Either the trial judge's order

granting a new trial would be affirmed on at least one of the grounds (affirmance of the order

would not require agreement with the trial court on both grounds) and new trials for each

Defendant would be held, probably many months after they are currently scheduled; or, this

court would reverse the trial court's order granting new trials, and then the trial court would

have to rulc on the remaining grounds for new trial asserted by Defendaiits Cobbins,

Davidson, and Thomas. The results of the hearings on the remaining grounds for new tiial

could result in the trial court again granting a new trial to one or more of the three nan~ed

Defendants, or if all the motions for new trial were denied, then the Defendants would be

entitled to appeal their convictions and sentences a second round of appeals. Meanwhile

Defendant Colen~an's new trial would have been held, and, if she is convicted again, her

appeal from those convictions could be well on the way toward final disposition. We

mention this sceiiaiio not to state what we feel should or would occur, but only to point out

some of the considerations made when contemplating judicial efficiency. Wc next will

review the circumstances under which the Statc's Rule 10 application inay be granted.

First, we notc the court rulcs which arc applicable to our considcration.

Rule 33(d) of the Tennessee Rules o f Criminal Procedure provides that "[tlhe trial

court may grant a ncw trial following a verdict of guilty if it disagrees with the jury about the

weight of the cvidence." In State v. Carter, 896 S.W.2d 1 19, 122 (Tenn. 1995), the supreme

court interpreted this rule as "impos[ing] upon a trial court judge the mandatory duty to serve

as the thirteenth juror in every criminal case," explaining 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." Id. When the same judge who presided over the trial overrules a dcfci~sc motion

for a new trial without comment, "an appellate court may presume that the trial judge I~as

served as the thirteenth juror and approve the july's verdict." Id. Such statements by the trial

judge must be "clear and unequivocal." State i7. Moats, 906 S.W.2d 43 1,435 (Tenn. 1995).

Rule 25(b)(l) of the Rules of Criminal Procedure states: "After a verdict of guilty,

anyjudge regularly presiding in or who is assigned to a court may complete the court's duties

if the judge before whom the trial began cannot proceed because of absence, death, sickness,

or other disability." Rule 25(b)(2) provides that "[tjhe successorjudge may grant a new trial

when that judge concludes that he or she cannot perform those duties because of the failure

to preside at the trial or for any other reason." This court has held that a s~iccessorjudge's

consideration, pursuant to Rule 25(b), of whether the duties of the o~igii~al with regard

judge

to a motion for new trial can be met in a pai-ticular case "must ii~clude assessmel~t his

an of

or her ability to act as a thirteenth juror, i~lcluding

witness credibility." State v. Nail, 963

S.W.2d 761,765 (Tenn. Crim. App. 1997): see also State v. Biggs, 21 8 S.W.3d 643,653-54

(Tenn. Crirn. App. 2006); State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000).

This assessment in tuin requires the successor judge to deternine "the extent to which

witness credibility was a factor in thc case and the extent to which he [or she] I~adsufficient

knowledge or records before him [or her] in order to decide whether the credible evidence,

as vizwed by the judge, adequately supported the verdict." Nail, 963 S.W.2d at 766; see also

Biags, 2 18 S.W.3d at 654; Brown, 53 S.W.3d at 275. Ifthese detenninations cannot be made

by the successor judge, then the verdict cannot be approved and a new trial must be granted.

s e e Big;=, 21 8 S.W.3d at 654; Brown, 53 S.W.3d at 275; m, 963 S.W.2d at 766.

This court has held that the State niay attempt to appeal, when the trial court grants

a new trial to a convicted defendant, by utilizing Taincssee Rule of Appellate Procedure 10.

State v. P e w , 740 S.W.2d 723, 724 (Tenn. Crim. App. 1987). However, it is obvious that

the situation must comport with the requirements of Rnle 10. As per its specific provisions,

that rule is applicable only in two situations:

1 . If the lower court has so far departed from the accepted and usual course

of judicial proceedings as to require immediate review, or

2 . If iiecessaiy for completc determination of the actjoil on appeal as

otherwise provided in these rules.

Tent]. R. App. P. 10(a).

As to the first situation, our supreme court in State v. Willourhby, 594 S.W.2d 388

(Tenn. 1980), listed six conditions that would niake a Rule 10 extraordinary appeal

appropriate. These conditions, along with our conclusion as to their applicability to the Rule

10 applicatiot~before us, are set forth as follows:

1 & 2. Where the rulirlg of the court below represents a fundamental

illegality or where theucriolz ofthe trial Judgewas without legal authority.

Wc conclude that the trial court's granting of the motions for new trial on the basis

of (a) inability to act as thirteenth juror as the successor judge and (b) fundamental structural

error cannot bc said to be a fundamental illegality or be without legal authority. In other

words, the trial judge has the authority and legal ability to grant a new trial on either ground.

3 & 4. Where the ruling constitutes a failure to proceed according to the

essential requirements of the law or where the action of the trial judge

constituted apluiri andpnlpuble abase of discretion.

Likewise, we cannot conclude that the trial court acted with a "plain and palpable"

abuse of ils discretion. The record itself bears out this conclusion. Further, the record in this

Rule I0 application does not reflect that the trial court failed to "proceed according to the

essential requircnlents of the law." Thc Statc was allowed to be heard on all arguments

raised by the Defendants. We do note that, in the motion for new trial hearing, the Statc

never argued that former Judge Baumgartner satisfied the requirement to act as thirteenth

juror during the sentencing hearings of the Defendants, a principal argument before this

Court in its Rule 10 application. While we decline to conclude that this specific argument

is waived because of a failure to present it at the appropriate time in the trial court, it is

significant in consideration of whether these two conditions, and the final two conditions

listed below, apply in this case.

5 & 6. Where the ruling is tantamount to the denial of either party of a

day in court or where either party has lost a right or interest that may

never be I-ecaptured.

As stated previously, the State was allowed to fully present any arguments it wished

to provide at the hearing on the motion for new trial. The ruling by the trial c o u ~does not

t

bar the State from prosecuting any of the t h e e Defendants for the cases which are the subject

of the Rule 10 application.

,Arguably the only "light or interest" lost by the State is the "right" to have an

appellate court affirm all of the convictions rind sentences. Ilowever, as previously stated,

even if this Rule 10 application is granted, this Couit would not be reviewing all of the issues

regarding the convictions and sentences. The result of an extraordinary appeal could only

be either ( I ) new trials as currently ordered, or (2) filrther appeals by the Defendants on the

remaining issues (or possibly arzotlzer application by the State to appeal if the trial court

granted any of tlie Defendant$ a new trial on another ground).

As to the second situation when Rule 10(a) is applicable, tlie Advisory Commission

Comments to Rule 10 state in part, "The circunlstances in which review is available under

[Rule 101, howcver, are very rial-rowly circutnscribed to those situations. . . as may be

necessary to permit complete appellate review on a fater appeal." (emphasis added) We

interpret the n ~ l e in light of these comments, to mean that a Rule 10 appeal is applicable

,

under 10(a)(2) when a legal issue arises while criminal proceedings are pending prior to a

judgment being entered, when there is the possibility of a later direct appeal. Therefore it

would not apply to the situation, as exists here, where the trials were completed, judginents

were entered, but new tiials were ordered post vcsdict.

The fact that thc Statc did not prevail in the motion for new trial, standing alone, does

not authorize tlie granting of an extraordinary appcal to review tlie trial court's action. If it

did, then the Tennessee Rules of Appellate Procedure would grant thc Statc an appeal as of

right pursuant to Rule 3(c).

We have thoroughly seviewed the documents appended to the State's application.

Defendant Coleman was granted a new trial for tlie same reasons that Defendants Cobbins,

Davidson, and Thomas were granted new trials. As previously stated, the State explicitly

chose not to seek appellate review as to Defendant Coleman's case. The only difference we

can detect in Defendant Coleman's case and those of the other three Defendants is thedegr-ee

of the problems that caused the trial court to render its ruling, not tlie existence o f the

problems.

For reasons which we will explain, wc thercforc conclude that the State's application

for extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10 must be

denied. While not all of the factual situations leading us to this conclusion are listed below,

the most significant ones are as follows.

First, the State and all Defendants entered into a stipulation that statements made by

various persons interviewed by Tennessee Bureau of Investigation ("TBI") agents are facts

deemed true (i1.1other words, not merely a stipulation as to what these witnesses would say

if called to testify). The State reserved objcctioll to some portions of the statements as to

relevancy and hearsay. As per the record available before us, the following facts in support

of the trial court's ruling exist as to tlzese proceedirtgs only.

Tn this regard, we note that the poition of the TBI reports which were made public

records show that former Judge Baunigai-tner,starting well before tlie trials in these matters,

and continuing through them, was a heavy user of alcohol and legally and illegally obtained

narcotics and that his impairment was suspected by, among others, prosecutors, nurses, law

enforcemeilt officers, and court personnel.

In addition, it is clear from the record before us that former Judgc Baumgartner

expIicitlyrcserved acting as thirteenth juror 01.1 Defendant Davidson's convictions of tlie first

degree murders of Christian and Newsom, and as to the resulting death sentences imposed

by the jury as to each victim. During Defendant Davidson's sentencing hearing on the non-

capital offenses, former Judge Raumgal-tner stated:

You are - Mr. Davidson, you are not so~nebody sl~ould on the

that be

street with the rest ofus. You should never, evcr, ever be on the street with the

rest of us. The jury IIRS detem~inedthat you're guilty beyond a reasonable

doubt of the first-degree murder of thcse two young people. They've

detern~ined the appropriate sentence is death. I think- I have a motion for

that

a new trial to go, so I m going lo resclvc expressing my opinion on that until

'

we have a motion for new trial. But, in my judgment, there is no sentence

great enough to punish you for thc conduct that you've been convicted of.

Jn view of the legal authorities and the reasoning which we have set out, wc conclude

that this is not a case in which a Rulc 10 appeal is appropliate. By this order, we neither

affirnl nor deny the tulings of the successor trial court but, instead, conclude that the Rule

10 application of thc State should bc denied. Accordingly, for all of the reasons set forth

above, the application for an extl-aordinary appeal is DENIED. Costs on appeal are taxed to

the State of Tennessee.

ALAN E. GLENN, JUDGE

TI-TOMAS T. WOODALL, JUDGE

Dissent by ROBERT W. WEDEMEYER, JUDGE

TN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE V. LBTALVIS DARNELL COBBINS,

LEMAHICUS DEVALL DAVIDSON, and GEORGE GEOVONNI

THOMAS

Criminal Court for Knox Co~lnty

Nos. 86216A, 86216B & 86216C

Clerk of the Court

ROBERT WEDEMEYER, dissenting.

W. .I.,

Ilpon consideration of the arguments, transcripts, and record presently before this

Court, I respecthlly disagree with my col1eagues' conclusion that the State's Rule 10

application for extraordinary appeal should bc denied. In my view, the State set forth valid

arguments on both the thirteenth juror issue and structural error issue to warrant this Court

to exercise its disclaetionand grant extraordinary review pursuant to Rule 10 of the Rules of

Appellate Procedure.

A. Thirteenth .Turor

In its Rule 10 application, the State presents a compelling argument, supported by trial

transcripts, that Judge Raumgartner fulfilled his thirteenth juror obligation through

statements at each Defendant's respective post-trial hearings. The State contends that,

because Judge Raumgartner fulfilled the thirteenth juror requirement, Judge Blackwood had

ncither the legal authority nor the legal obligation to act as the thirteenth juror in any of the

three cases. The State concludes that Judge Blackwood's decision to grant a new trial for

each of the three Defendants, based on the thirteenth juror rule, was without legal authority

and, therefore, presents a valid basis for granting the Rule 10 application for extraordinary

appeal. See Stare v. McKim, 2 15 S.W.3d 78 I , 79 1 (Tenn. 2007) (citing State v. Willoughby,

594 S.W.2d 388, 392 (Tenn. 1980) ('"This Court has stated that a Rule 10 extraordinary

appeal will lie whenever the prerequisites for common law certiorari exist: . . . the trial

court's action is without legal authority . . . ."). TfJudge Baurngartner did indeed satis6 his

thirteenth juror duty, Judge Rlackwood then would have "so far departed from the accepted

and usual course ofjudicial proceedings as to require immediate review." Tenn. R. App. P.

10(a)(l). Because the State presents a valid argument, complete with supporting documents,

on the issue, I believe it has satisfied the lhreshold showing to warrant filrther proceedings.

Therefore, I ~vould grant the State's Rule 10 application for extraordinary review.

B. Structural E r r o r

After thorough research on this issue, I have concluded that the appropriate legal

standard for determining whether there is structural error in a trial is unclear. Further, it is

unclear whether the legal reasoning and analysis Judge Blackwood applied in his decision

to grant a new trial to each of the three Defendants, based on structural error, constituted the

appropriate standard. If the appropriate standard requires, as the State argues, that the

Defendants demonstrate a connection between Judge l3aurngartnerYsmisconduct and his

decisions at trial, then .Tuclge Blackwood applied an incorrect standard, and the Deferldants

have failed to show that they did not receive fair trials. See Thurmond v. McKee, No. 1 :06-

cv-580, 2009 WL 929001, at *18 (W.D. Mich. Apr. 2, 2009) (". . . even assuming the

existence of some due-process principle at work in the present case, that principle would

certainly require evidence that the judge's personal problems have had some substantial

impact on the fairness of a criminal defendanl's trial."). At this point in the appeals process,

none of the Defendants have demonstrated any specific instances of bias or unfairness by

Judge Baumgartner in their respective trials. Therefore, I would grant the Rule 10

application for extraordinary appeal, ordering that all parties hlly brief and orally argue the

issue, in order for this Court to properly determine a resolution. Tenn. R. App. P. 10(a)

("[Aln application for extraordinary appeal lies from an interlocutory order o f a lower courl

. . . [i]f necessary for complete determination of the action on appeal . . . .").

Conclusion

Accordingly, for the reasons set forth above, 1 conclude that the State's Rulc 10

application for an extraordinary appeal should be GRANTED.