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.

-5-

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.

-7-

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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