stating that “numerous attempts to appeal certified questions have been unsuccessful on the basis that the certified question was determined by the appellate courts not to have been dispositive.”
How later courts described this case
- stating that “numerous attempts to appeal certified questions have been unsuccessful on the basis that the certified question was determined by the appellate courts not to have been dispositive.”
- “The appellate court, however, ‘is not bound by the determination and agreement of the trial court, a defendant, and the State that a certified question of law is dispositive of the case.’” (quoting State v. 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 5, 2007 Session
STATE OF TENNESSEE V. KENNETH C. DAILEY, III
Appeal by Permission from the Court of Criminal Appeals
Davidson County Criminal Court
No. 2004-B-1779 Steve Dozier, Judge
No. M2005-01223-SC-R11-CD - Filed on August 20, 2007
The Defendant, Kenneth C. Dailey, III, pleaded guilty to second degree murder and reserved a
certified question of law regarding the admissibility of his statements of confession to the crime.
Disagreeing with the trial court, the prosecutor, and the defense that the question was dispositive of
the case, the Court of Criminal Appeals dismissed the appeal. We hold that, on the record before
us, the certified question is dispositive of the case. Accordingly, we reverse and remand this matter
to the Court of Criminal Appeals for its review of the certified question on its merits.
Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed, Remanded to
the Court of Criminal Appeals
CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER and GARY R. WADE, JJ., joined.
J. Carlton Drumwright, Brentwood, Tennessee, for the appellant, Kenneth C. Dailey, III.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Preston
Shipp, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Pamela Sue
Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS AND PROCEDURAL HISTORY
Metro Nashville police officer Mike Roland testified that, in April 2004, a woman’s severely
decomposed body was found in an abandoned vehicle at Tommy’s Wrecker Service in Davidson
County. A piece of rope was wrapped around the woman’s neck. The body was transported to the
Medical Examiner’s Office for examination and was identified to be that of Nancy Marie Lyons.
In an attempt to discover information about the victim, Officer Roland interviewed several
of the wrecker service’s employees. In conjunction with the investigation, all of the employees were
asked to submit “elimination [finger]prints.”
The Defendant, Kenneth C. Dailey, III, was one of the employees interviewed and
fingerprinted by the police. Although they had no forensic or other evidence linking the Defendant
to the body, the police, based upon “gut feelings and instincts,” subsequently decided that they
wished to interview him further. Officer Roland asked the son of the owner of Tommy’s Wrecker
Service to tell the Defendant that the police needed to retake his fingerprints.
Officer Roland admitted that the real reason for requesting the Defendant to come down to
the police station was to interview him and that a second fingerprinting was unnecessary. Officer
Roland also testified that, at the time the Defendant reported for his second meeting with the police,
they did not have probable cause to arrest him. Indeed, Officer Roland stated that he “had no
evidence to arrest [the Defendant] on” and that he “had nothing on him.” The decision to ask for
new prints was made because the officer “didn’t wanna scare him.”
At the appointed time, the Defendant drove to the station and parked across the street. When
the Defendant entered the police station, Officer Roland met him in the front lobby and escorted him
back to an interview room in the Criminal Investigations Division area, which is in the controlled-
access portion of the facility. Officer Roland asked the Defendant to take a seat and then left to
retrieve his paperwork. Officer Roland testified that the Defendant was not in custody at this time
and was not handcuffed; while he was gone, Officer Roland left the interview room door open and
unguarded. When Officer Roland returned to the interview room, he was accompanied by Sergeant
Pat Postiglione.
Officer Roland and Sgt. Postiglione proceeded to interview the Defendant. Eventually, the
Defendant confessed to having killed the victim after having had consensual sex with her. At that
point, Officer Roland advised the Defendant for the first time of his constitutional rights pursuant
to Miranda v. Arizona, 384 U.S. 436 (1966). After being advised of his rights, the Defendant signed
a waiver of rights form and gave a second statement in which he again confessed to the killing.
The Defendant was charged with first degree premeditated murder. He filed a motion to
suppress his statements on the basis that he had been subjected to a custodial interrogation without
the requisite Miranda warnings. After a hearing, the trial court denied the Defendant’s motion. The
Defendant subsequently entered a guilty plea to second degree murder but reserved for appeal a
certified question of law regarding the admissibility of his statements. During the plea hearing, the
trial court asked the prosecutor if it was “the State’s position that, absent these statements from [the
Defendant] to the police, that the State could not proceed?” The prosecutor responded, “Yes, Your
Honor, it is dispositive. Our proof is timed [sic] with the – his statement. That – we would,
however, not limit ourselves, should further evidence be developed at a later time. But, as the
evidence stands at this time, Your Honor, it would be dispositive and we would not be able to
proceed.”
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The trial court, the prosecutor, and the Defendant agreed that, in conjunction with the
Defendant’s guilty plea, the Defendant was reserving a certified question of law that was dispositive
of the case. To that end, the judgment of conviction contains the following “special condition”:
Defendant’s plea of guilty is pursuant to Rule 37 such that he has expressly reserved
a certified question for appeal as set out in the attached Agreed Order. The Agreed
Order is expressly made part of the Judgment in this case and is to be entered
simultaneously with that Judgment. The parties agree and the Court affirms that the
certified question set out in the agreed order is expressly reserved as part of the plea
agreement and all parties consent to this reservation. Further, all parties agree that
this question is dispositive of the case.
The referenced Agreed Order sets forth the following as the certified question of law:
Whether the Defendant was subjected to a custodial interrogation by Metro
Police Detectives on or about May 4, 2004 such that his subsequent statements were
taken in violation of his rights pursuant to Article 1, Section Nine of the Tennessee
Constitution, the Fifth Amendment of the United States Constitution and the Due
Process Clause of the Fourteenth Amendment of the United States Constitution. The
Defendant gave two statements to detectives on May 4, 2004. No Miranda warnings
were given by the detectives prior to the first statement given by Defendant. It is the
Defendant’s position that this was a custodial interrogation thereby requiring
Miranda warnings. Immediately following Defendant’s first statement, Miranda
warnings were given by the detectives and the Defendant gave a second statement.
It is the Defendant’s position that this second statement was obtained by the
detectives using interrogation techniques expressly rejected by the United States
Supreme Court in Missouri v. Seibert, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
Testimony was given by Detective Mike Roland that the State’s proof of Defendant’s
guilt consists entirely of the statements he gave on May 4, 2004 thereby making this
question dispositive of the case.
The parties agree and the Court affirms that the certified question set out
above is expressly reserved as part of the plea agreement and that all parties consent
to this reservation. Further, all parties agree that this question is dispositive of the
case.
The Court of Criminal Appeals dismissed the appeal on the grounds that the record “does not
demonstrate that the certified question is dispositive of the case.” The intermediate appellate court
opined that the record “lacks the requisite explanation as to how the [D]efendant’s confession is
dispositive of this case.” The court queried, “What investigation was done as relates to this murder
case? What other evidence might the State have that would link this defendant to this murder?
What is the District Attorney’s explanation as to why the State cannot proceed without the
defendant’s confession?” The court was of the further opinion that, since the victim’s body had been
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examined by the medical examiner’s office, “presumably, samples were taken or could be taken that
could confirm the recent sex act between the defendant and the victim without need of the
defendant’s confession. Other forensic and circumstantial evidence may be available to the
prosecution connecting the defendant to this murder.”1
The Defendant sought an appeal to this Court, which we granted. The State continues to
assert that the certified question is dispositive of the case. We hold that the Court of Criminal
Appeals erred in dismissing the appeal on the basis that the certified question is not dispositive of
the case. Accordingly, we reverse and remand this matter to the Court of Criminal Appeals for
further proceedings consistent with this opinion.
ANALYSIS
Tennessee Rule of Criminal Procedure 37(b)(2) provides that a defendant may enter into a
guilty plea but reserve for appeal “a certified question of law that is dispositive of the case” if certain
requirements are met. See Tenn. R. Crim. P. 37(b)(2)(A)(iSiv); State v. Preston, 759 S.W.2d 647,
650 (Tenn. 1988). One of the requirements is that “the defendant, the state, and the trial court are
of the opinion that the certified question of law is dispositive of the case.” Tenn. R. Crim. P.
37(b)(2)(A)(iv). The question is dispositive “when the appellate court ‘must either affirm the
judgment [of conviction] or reverse and dismiss [the charges].’” State v. Walton, 41 S.W.3d 75, 96
(Tenn. 2001) (quoting State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984)).
The appellate court, however, “is not bound by the determination and agreement of the trial
court, a defendant, and the State that a certified question of law is dispositive of the case.” State v.
Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003). Rather, the reviewing court must make
an independent determination that the certified question is dispositive. Preston, 759 S.W.2d at 651
(citing State v. Jennette, 706 S.W.2d 614, 615 (Tenn. 1986)). The issue in this case is whether “the
record on appeal demonstrates how [the certified] question is dispositive of the case.” Id. (emphasis
added).
The record on appeal in this case consists of the transcript of the hearing before the trial court
on the Defendant’s motion to suppress, including as an exhibit thereto a videotape of the Defendant’s
interview by the police, and the transcript of the Defendant’s guilty plea. No other proof is contained
in the record before us.
We disagree with the intermediate appellate court that this record “lacks the requisite
explanation as to how the [D]efendant’s confession is dispositive.” Officer Roland testified at the
suppression hearing that, prior to the Defendant’s confession, the police had “no evidence”
connecting the Defendant to the killing. The prosecutor stated plainly at the Defendant’s plea
1
W e note that the Defendant entered his guilty plea on May 5, 2005, over one year after the victim’s body was
discovered. If any forensic evidence had been available to link the Defendant to the killing, certainly the State should
have been aware of it by then.
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hearing that the prosecution could not proceed absent the Defendant’s confession. The Court of
Criminal Appeals’ second-guessing of the State’s investigation into this case, under these
circumstances, was in error. An appellate court’s duty is to determine whether the certified question
is dispositive on the record before it. See State v. Smotherman, 201 S.W.3d 657, 660 (Tenn. 2006)
(emphasizing that, in considering a certified question, “[t]he appellate record provides the boundaries
of an appellate court’s review”). It is not the appellate court’s duty to question why the record does
not contain other evidence or to assume oversight of the underlying criminal investigation.
We recognize that numerous attempts to appeal certified questions have been unsuccessful
on the basis that the question was determined by the appellate courts not to have been dispositive.
For instance, in Walton, the defendant pleaded guilty to aggravated burglary and burglary but
reserved a certified question regarding the admissibility of his incriminating statements to the police.
41 S.W.3d at 80. This Court determined the question to be non-dispositive because other
incriminating evidence existed in the record. Id. at 96; see also State v. Hendrix, 782 S.W.2d 833,
837 (Tenn. 1989) (finding certified question regarding seizure of controlled substances not
dispositive “in view of the undisputed evidence of other undisclosed incriminating evidence in the
record”); State v. Brown, M2004-02101-CCA-R3-CD, 2005 WL 2139815, at *5 (Tenn. Crim. App.
Aug. 30, 2005) (holding certified question regarding the validity of a search warrant not dispositive
of the case because the State had incriminating evidence obtained other than via the challenged
warrant); State v. Bufford, No. M2004-00536-CCA-R3-CD, 2005 WL 1521779, at *4 (Tenn. Crim.
App. June 24, 2005) (holding that certified question was not dispositive because the State had
incriminating evidence in addition to the defendant’s statements made after allegedly unlawful
arrest); State v. Ledford, No. E2002-01660-CCA-R3-CD, 2003 WL 21221280, at *4 (Tenn. Crim.
App. May 22, 2003) (holding that whether the strong odor of ammonia emanating from the
defendant’s residence supported probable cause for a search warrant was not dispositive of the
defendant’s case where there was other evidence to support the warrant); State v. Kennedy, No.
W2001-03107-CCA-R3-CD, 2003 WL 402798, at *3-4 (Tenn. Crim. App. Feb. 21, 2003) (holding
that the validity of a consent search was not dispositive of the case where the victim could also
testify to the defendant’s possession of his property); State v. Gambrell, Sr., No. 01C01-9603-CR-
00123, 1997 WL 230199, at *3 (Tenn. Crim. App. May 7, 1997) (holding that the admissibility of
the defendant’s confession was not dispositive of the case because the victim was available to
testify). In each of these cases, the certified question was determined to be not dispositive because
the record before the appellate court demonstrated that the prosecution had evidence not challenged
by the certified question that could be used to prosecute the defendant.
In this case, the State represented to the trial court that it had no evidence upon which to
proceed other than the Defendant’s confession. There is nothing in the record contradictory to the
State’s representation. That the victim’s body was examined by the medical examiner does not
automatically guarantee the discovery or recovery of admissible, incriminating evidence. On the
record before us, the Defendant’s statements of confession are the only proof available to the State
with which to prosecute the Defendant. The admissibility of those statements is therefore dispositive
of this case and the certified question is properly before the appellate court. See State v. Payne, 149
S.W.3d 20, 24 (Tenn. 2004) (addressing merits of certified question regarding admissibility of
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defendant’s statement where the prosecutor “acknowledged that without the defendant’s statement
the prosecution would be unable to prove a ‘prima facie case’”).
CONCLUSION
We hold that the Court of Criminal Appeals erred in dismissing the appeal of the certified
question of law reserved in conjunction with the Defendant’s guilty plea. We accordingly reverse
the judgment of the Court of Criminal Appeals and remand this appeal to the Court of Criminal
Appeals for its consideration of the merits of the certified question.
The costs of this cause are taxed to the State of Tennessee.
________________________________
CORNELIA A. CLARK, JUSTICE
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