State of Tennessee v. Susan Jo Walls

11/09/2017

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 8, 2017 Session

STATE OF TENNESSEE v. SUSAN JO WALLS

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Bedford County

No. 17626 Forest A. Durard, Jr., Circuit Judge

___________________________________

No. M2014-01972-SC-R11-CD

___________________________________

We granted this appeal by the State of Tennessee to consider whether the trial court erred

by allowing the jury in this case to deliberate late into the night and early morning on the

last day of trial before convicting the defendant of first degree murder and conspiracy to

commit first degree murder. The Court of Criminal Appeals granted the defendant relief

on this issue, reasoning that absent a showing of unusual circumstances, late-night trial

proceedings should be avoided and that such circumstances were not presented in this

case. We accepted this appeal to examine this issue and clarify the applicable standard of

review on appeal. Following our review, we conclude that the Court of Criminal Appeals

erred in concluding that the trial court’s conducting late-night trial proceedings requires

reversal of the defendant’s convictions. Accordingly, the Court of Criminal Appeals is

reversed and the judgments of the trial court are affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Reversed

ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

CORNELIA A. CLARK, and HOLLY KIRBY, JJ., joined. SHARON G. LEE, J., filed a separate

concurring opinion.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; Andrew C. Coulam, Assistant Attorney General; Robert J. Carter, District

Attorney General; and Richard A. Cawley and Michael D. Randles, Assistant District

Attorneys General, for the appellant, State of Tennessee.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the defendant, Susan Jo Walls.

OPINION

I. INTRODUCTION

The trial of this matter began on Monday, May 5, 2014. The trial continued

through the week until Thursday afternoon, May 8. After closing arguments, the trial

court stood in recess for approximately two hours when the defendant suffered a medical

emergency. When the proceedings resumed, the trial court instructed the jury around

6:30 p.m., and the jury retired to deliberate. As detailed below, multiple interactions

occurred among the trial judge, the attorneys, and the jury during this time. The jury

returned a verdict at 1:05 a.m. the following morning. The Court of Criminal Appeals

granted the defendant relief on the issue of late-night court proceedings, State v. Walls,

No. M2014-01972-CCA-R3-CD, 2016 WL 1409836, at *13-14 (Tenn. Crim. App. Apr.

7, 2016), perm. app. granted (Tenn. Aug. 18, 2016), and the State filed a Tennessee Rule

of Appellate Procedure 11 application for permission to appeal, arguing that the Court of

Criminal Appeals erred in its ruling. We granted the application to consider whether,

inter alia, the trial court erred in permitting the jury to deliberate into the late night and

early morning hours.

II. FACTS AND PROCEDURAL HISTORY

On August 8, 2012, Bedford County Sheriff’s Deputy Tim Fox responded to a

report of a theft on Enon Church Road in Bedford County. Upon his arrival, he

encountered the defendant, Susan Walls, and her daughter Dawn Walls standing at the

mailbox. There, he learned that the victim, Larry Walls, Sr., was inside the residence,

deceased. Deputy Fox performed a cursory check of the residence and observed the

victim on the floor of a bedroom. He described the scene as “pretty gruesome.” Blood

was on the walls, the floor, and the furniture around the victim.

Tennessee Bureau of Investigation (“TBI”) Special Agent Caleb Utterback also

responded to the scene in Bedford County pursuant to a request from the Bedford County

District Attorney for the TBI to handle the investigation. Based upon his experience, he

thought that the crime scene appeared “staged.” Special Agent Utterback listened to the

recording of the 9-1-1 call in his vehicle. The defendant had placed the call, but Dawn1

had to finish the call because the dispatcher could not understand the defendant. He

agreed that the recording struck him as “odd.” The call had been dispatched as a theft;

neither the defendant nor Dawn conveyed any information about a deceased person at the

1

Several of the female witnesses in this case share the surname of “Walls.” For that reason, we

will refer to the witnesses by their given names to avoid confusion. By doing so, we intend no disrespect.

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residence. Also, Dawn gave her alibi for the day to the dispatcher, which presented a

“huge red flag” to Special Agent Utterback.

During the TBI’s investigation, they discovered that the victim’s death had been

the result of a murder-for-hire. Several witnesses, including Dawn, her sisters Aelisa

Stacy and Melissa Walls, her brother Larry Walls, Jr., and others, described the victim as

having been an “evil man” who had been extremely physically abusive to both the

defendant and their children and sexually abusive to Dawn. Over the years, many of the

victim’s family members had commented offhandedly that they wished he were dead but

never to the point of plotting his death.

During Memorial Day Weekend 2012, the victim and the defendant traveled to

Antioch, a suburb of Nashville, to spend the night at Dawn’s apartment. Dawn shared the

apartment with her boyfriend, Derrick McClain; her roommate, Chrissy Twilley; and Ms.

Twilley’s boyfriend, Jason Starrick. During the weekend, Dawn, the defendant, and Mr.

Starrick discussed how much money killing the victim would cost and various methods

that could be employed.

In mid-July, the defendant visited her daughter Aelisa at the residence of Aelisa’s

boyfriend, Joseph Williams. The defendant had puffy eyes as though she had been

crying, and it appeared to Mr. Williams that someone had struck her. The defendant told

Mr. Williams that the victim had hit her, that “she was tired of it,” and that it “was the

last time he was ever going to hit her.” The defendant remarked that “she had it taken

care of and that she had some guys that was [sic] going to come down and slit his throat.”

Approximately one week later, Dawn spoke with Mr. Starrick again and discussed

his “tak[ing] care of [the victim]” for $400. 2 The defendant acquiesced and told Dawn

that she would pay half of the sum. A plan was formulated for Dawn and the defendant

to take Aelisa and her four children to a Chuck E. Cheese’s restaurant to provide an

opportunity for Mr. Starrick to kill the victim at his home. The plan was discussed five

or six times before it was executed.

On the night before the murder, August 7, 2012, several people were present at the

home of the victim and the defendant. Dawn and the defendant had a discussion about

why everyone was there. They said that the murder would occur the following day,

2

Several witnesses at trial, including a representative from Verizon Wireless and a TBI agent who

specialized in computer and cellular telephone forensics, discussed the content and frequency of various

telephone calls and text messages that were exchanged among the defendant, Dawn, Jason Starrick, and

Aelisa (the defendant purportedly used Aelisa’s telephone periodically when her personal telephone was

out of order). Many of these communications involved logistics, price negotiations, and methods of

committing the murder.

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August 8. At some point, Dawn informed Mr. Starrick that the back door of the

residence was always unlocked. Dawn indicated that she wanted to take Aelisa’s son to

Chuck E. Cheese’s because the school year would begin soon. That night, Dawn, Aelisa,

Ms. Twilley, Mr. Starrick, Sean Gerheardt, and Aelisa’s four children drove in two cars

to Dawn’s apartment in Antioch to spend the night. Everyone except Mr. Gerheardt

spent the night there. Dawn paid Mr. Starrick $70 in cash and also provided him with a

debit card and personal identification number so that he could purchase the necessary

items to carry out the murder. The defendant did not contribute any money to Mr.

Starrick.

The following morning, Mr. Gerheardt returned to the apartment, and he and Mr.

Starrick left the apartment around 6:15 a.m. They used Dawn’s debit card that morning

at a Mapco gas station and at Walmart, where they purchased ammonia and two sets of

rubber gloves. The defendant arrived at Dawn’s apartment around 10:00 a.m. Mr.

Gerheardt and Mr. Starrick returned thereafter; they were wearing black clothes, and Mr.

Gerheardt had some blood on him. Mr. Starrick removed a long-sleeve shirt that was

wet. When the two men entered the apartment, Ms. Twilley observed “tissue or matter”

on the side of Mr. Starrick’s face and a bloody fingerprint on Mr. Gerheardt. They

entered a bathroom, cleaned up, and exited with a plastic garbage bag. Mr. Starrick

returned Dawn’s debit card, and she drove to Mapco to obtain money from the teller

machine to spend at Chuck E. Cheese’s. When she returned from Mapco, Mr. Gerheardt

and Mr. Starrick were in the parking lot placing a black trash bag into Mr. Starrick’s

truck. They told Dawn that “it was done.” Later that day, the defendant, Dawn, Aelisa,

and the children drove to Shelbyville.

When they arrived in Shelbyville, Dawn and the defendant took Aelisa and her

children to Melissa’s house. They had planned this in advance because the defendant did

not want Aelisa and her children to see the victim or the crime scene. Dawn and the

defendant went to get ice cream for all of the children from the defendant’s house. When

their trip took longer than expected, Aelisa called to see why they were delayed. The

defendant told Aelisa what had happened to the victim.

Although the defendant and Dawn initially gave statements in which they

disclaimed any involvement, they both subsequently provided statements in which they

accepted responsibility and explained the events leading up to and surrounding the

victim’s murder. In addition to the confessions, the State’s evidence at trial included

forensic evidence, which matched the victim’s blood with blood found on Mr. Starrick’s

long-sleeve shirt that was recovered from the apartment and with blood found on the belt

Mr. Starrick was wearing when he was arrested. The medical examiner opined that the

victim died by “multiple modality,” any of which were potentially fatal and all of which

contributed to his death: blunt force trauma to the head, and stab wounds to the heart,

lung, and liver. Jason Starrick and Sean Gerheardt were located, with the assistance of

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Ms. Twilley, and arrested; the defendant and Dawn were arrested and charged with

criminal responsibility for the first-degree premeditated murder of the victim and

conspiring with each other, Mr. Starrick, and Mr. Gerheardt to commit said murder. The

defendant was found guilty and was sentenced to concurrent terms of life in prison and

twenty-one years, respectively.

The defendant appealed her conviction and sentence on several grounds. Walls,

2016 WL 1409836, at *1. In the Court of Criminal Appeals, the defendant argued, inter

alia, that the evidence was insufficient to support her convictions, that the trial court

erred by allowing the jury to deliberate late into the night, and that the trial court erred in

several other rulings. Id. The Court of Criminal Appeals reversed the defendant’s

convictions based on the late-night jury deliberations but affirmed the convictions on all

other grounds. Id.

In this Court, the State filed a Tennessee Rule of Appellate Procedure 11

application for permission to appeal, arguing that the intermediate appellate court erred in

reversing the defendant’s convictions based on the jury’s late-night deliberations. We

granted the application to consider whether “a trial court’s decision to extend jury-trial

proceedings into the late-night hours [is] reviewed for abuse of discretion or . . . de novo

without a presumption of correctness” and whether “[a]bsent evidence of attorney or

juror fatigue, . . . the trial court violate[s] the defendant’s constitutional rights to due

process and a fair trial by permitting the jury to continue its deliberations late into the

night.” To decide this issue, we must first consider whether the defendant properly

preserved the issue in the absence of a definitive ruling by the trial court and a failure to

renew the motion during the course of the late night proceedings.

III. ANALYSIS

This matter requires us to review the proceedings that were conducted in the trial

court contemporaneously with the late-night proceedings as well as what transpired

during the hearing on the motion for a new trial.

At 4:04 p.m. on May 8, 2014, the defendant began experiencing health problems.

A paramedic was summoned, and he indicated that the defendant’s blood pressure was

210/120, which he described as “[v]ery high, stroke high.” A deputy suggested that they

should transport the defendant to a hospital, and the paramedic agreed. After the

defendant’s removal from the courtroom, the trial court mentioned instructing the jury in

her absence, and defense counsel thereupon objected to “any further action without [his]

client here.” The State suggested that they “just wait a little while and see if her blood

pressure comes back down and then proceed.” Thereafter, the following conversation

occurred on the record:

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DEFENSE COUNSEL: I think . . . the General may be correct there. And based on

my experience, I’ve never been in the hospital where it took

twenty or thirty minutes for a turn around, especially not

when your blood pressure is that high. They always want to

make sure that whatever they’ve administered that you don’t

drop too low and that kind of thing. So if it’s going to be two

hours, which sounds like a long time, two hours. Especially,

then to come back in after two hours, if she’s even here,

we’re going to have another thirty, forty minutes based on

what we expect the charge to be and then they’re going to

start deliberating at seven o’clock at night?

THE COURT: Yeah, it’s going to take me thirty, forty-five minutes to read

this charge.

DEFENSE COUNSEL: It sounds to me, based on where we are, is that the best thing

to do would be to adjourn until tomorrow and start fresh in

the morning. I don’t have a problem dismissing the juror that

needs to go to Knoxville. I have no problem at all.

No further discussion ensued. The defendant returned from the hospital, and with her

present, the trial court instructed the jury beginning at 6:30 p.m. The jury began

deliberating at 7:13 p.m. The jury sent a question to the trial court at 10:41 p.m. The

trial court and attorneys were still discussing the appropriate answer when the jury sent

word that they were hungry and wanted something to eat. The clerk ordered pizza for the

jury, and at 11:13 p.m., the trial court sent the answer to the jury’s question. The jury

continued its deliberations and returned verdicts of guilty at 1:05 a.m. the following

morning.

Defense counsel raised the late-night jury deliberations in his motion for a new

trial. The following discussion ensued at the hearing:

DEFENSE COUNSEL: The time that the – there was a delay in time at the – between

the closing arguments and the reading of the charge to the

jury that was because of a medical emergency. You

remember the medical emergency regarding my client, where

she was taken to the hospital.

When the jury was brought back in prior to, they had been out

for some two hours. And then went till 1:30 in the morning, I

think is what we did that day.

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THE COURT: It was like 1:05 a.m.

DEFENSE COUNSEL: A very long time. But one of the jurors, when she came back

in, exhibited fatigue. Said she’d had a nice nap back there.

And I’m not saying that she was elderly, but she was a little

bit.

And in the grand scheme of things, I don’t know that any of

the jurors were prepared for the length of deliberation[s] that

occurred.

We argued for a motion to continue the case until, you know,

a later time until Monday or even until Saturday, I think

because we were on a Friday at that point, or maybe that was

a Thursday and we had Friday available to us. That was what

it was, it was Thursday night until Friday morning.

And I had argued to continue the case, and you rejected that.

And we believe that that would be – juror fatigue, at that

point, is one of the grounds that we think we should have a

new trial because they were not prepared for the length of

stay that they had that night.

THE COURT: Let’s go ahead and address that. My recollection of those

events, [COUNSEL], was that the jurors wanted to proceed

on.

And I guess I may have preempted the General.

Do you want to go ahead and respond to that?

THE STATE: That’s my recollection, the court gave them the option.

THE COURT: And they wanted to proceed on.

Now, it might have been problematic had this juror been

napping during the proof, but she went back there and rested

during the period of time that –

Did this occur when [the defendant] was taken over to the

hospital?

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DEFENSE COUNSEL: Yes, Your Honor. It was after she was brought back in that

this juror came in and mentioned having a nice nap during

that break.

THE COURT: I don’t recall that being said, anything maybe other than in

jest.

I mean, as a matter of fact I do believe I asked them, did they

wish to proceed. And they wanted to plow through. Because

my recollection of the events, they went out about 7 p.m. to

deliberate, and came back very slightly after 1 o’clock.

I mean, without more, I’m not – based on my examination of

the jurors of them wanting to proceed forward, I can’t

imagine this had any bearing on her ability to reach a verdict

in this case.

After reviewing the trial court proceedings, it is clear that our determination of this issue

must address whether defense counsel properly preserved his “motion” to adjourn the

proceedings at the close of the day on Thursday, May 8. If we conclude that he did not

preserve the issue, we must further determine whether the issue is deemed waived or

whether this Court should exercise its jurisdiction to review the issue on the merits

pursuant to plain error review.

A. WAIVER/JURISDICTION OF THE COURT

We must first determine whether the Court of Criminal Appeals had jurisdiction to

consider the defendant’s claim of error regarding the jury deliberations. This necessarily

involves two inquiries: (1) did the Court of Criminal Appeals properly consider

counsel’s interjection at trial as a contemporaneous objection, thereby preserving

appellate review of the issue; and (2) if not, could the Court of Criminal Appeals have

properly applied plain error review to grant the defendant relief on this claim of error.

The Court of Criminal Appeals concluded that the defendant had preserved this

issue for review. Walls, 2016 WL 1409836, at *12. This Court has held, albeit in a

different context, that in cases “where the record on a pretrial suppression motion or on a

motion in limine clearly presents an evidentiary question and where the trial judge has

clearly and definitively ruled,” defense counsel need not offer further objections to the

trial court’s ruling. State v. McGhee, 746 S.W.2d 460, 462 (Tenn. 1988). We cautioned,

however, that in cases in which the “issues are only tentatively suggested or the record

only partially and incompletely developed[,] . . . [c]ounsel necessarily take some

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calculated risks in not renewing objections.” Id.; see also State v. Alder, 71 S.W.3d 299,

302 (Tenn. Crim. App. 2001). This general principle is demonstrated in this case.

Moreover, this Court has further recognized the importance of a contemporaneous

objection to procedures utilized by the trial court in addition to evidentiary issues. In

State v. Estes, this Court reiterated, “Objections to improper procedure must be voiced

contemporaneously to give the trial judge the opportunity to correct the error on the spot.

In the absence of a contemporaneous objection, any error was waived.” 655 S.W.2d 179,

186 (Tenn. 1983) (emphasis added) (citing Tenn. R. App. P. 36); see also State v. Smith,

857 S.W.2d 1, 20 (Tenn. 1993) (“Defendant failed to raise any objection to the procedure

employed by the trial judge until after the case had been submitted to the jury. This

failure to take action constitutes a waiver to the procedure employed, which we find to be

constitutionally sound.”); State v. Skelton, 77 S.W.3d 791, 799 (Tenn. Crim. App. 2001)

(citation omitted) (noting that a defendant may be considered to have acquiesced in

action taken by the trial court if he stands silent and that “[t]his rule prohibits a party

from standing silent while the trial court commits an error in procedure, and then

rely[ing] on that error to his or her own advantage at a later time”); State v. Mahoney, 874

S.W.2d 627, 629 (Tenn. Crim. App. 1993) (citations omitted) (concluding that defendant

waived issue of whether trial court erred in not requiring his presence when jury returned

with a question by failing to take “action to prevent the occurrence of the alleged error”

and that “[u]nless the defendant makes a contemporaneous objection under these

circumstances, the issue is waived”).

Although this issue necessarily implicates the defendant’s right to a trial by jury, it

does so in a manner in which the procedure utilized by the trial court – late-night jury

proceedings – is called into question. The procedural decision by the trial court to permit

the jury to deliberate late into the night required a contemporaneous objection by counsel

so that the trial court had an opportunity to address and/or correct the issue immediately.

As noted supra, defense counsel stated his opinion during an on-the-record discussion

with the trial court and the State that “based on where we are, . . . the best thing to do

would be to adjourn until tomorrow and start fresh in the morning.” Counsel did not

make a formal motion, nor did he offer further argument in support of his opinion.3 We

further note that counsel did not seek and that the trial court did not offer a clear and

definitive ruling against the defense at that time; counsel did not offer further argument or

objection to continuing the proceedings when the jury was again convened in the

courtroom, before or after the trial court’s instructions to the jury, before or after the trial

court answered the jury’s question, or when the jury requested dinner. The discussion

concerning whether to adjourn for the day occurred around 4:15 p.m., but counsel did not

address the issue again until the hearing on the motion for a new trial. The repeated

3

It is noteworthy that during oral argument to this Court, defense counsel conceded that his

statement to the trial court was not a motion to continue the proceedings until the following day.

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opportunities to revisit counsel’s “suggestion” and his silence during those opportunities

support a finding of waiver of this issue. See, e.g., State v. Mack, 435 So. 2d 557, 565

(La. Ct. App. 1983) (“It should be noted, however, the defense counsel did not make a

motion to recess at any time on this date. Accordingly, defendant cannot now complain

that the length of trial was unduly long.”); State v. Schreiner, 754 N.W.2d 742, 762-63

(Neb. 2008) (holding that “[o]ne cannot know of purportedly improper judicial conduct,

gamble on a favorable result as to that conduct, and then complain that he or she guessed

wrong and does not like the outcome”); Garza v. State, 783 S.W.2d 796, 798 (Tex. Ct.

App. 1990) (citations omitted) (holding that failure to object to the hour of trial waives a

claim of error and noting that “[s]pecifically, a claim that the trial court’s action had a

coercive effect on the jury is waived by failure to object”). This should not be read to

imply that trial courts should require counsel to use talismanic language such as “move”

or “motion” for their arguments to be preserved on appeal. Rather, we reiterate that a

mere “tentative[] suggest[ion]” coupled with an “incompletely developed” record poses

great risk of waiver on appeal. McGhee, 746 S.W.2d at 462.

We also recognize that at the hearing on the motion for a new trial, counsel alleged

that one juror whom he described as “elderly” exhibited fatigue during the evening and

night.4 However, counsel did not bring this alleged fatigue to the court’s attention during

the trial and did not present this juror as a witness at the hearing to testify as to her degree

of fatigue, if any. Taken together, we conclude that defense counsel failed to object to

the late-night jury proceedings and consequently, has waived review of this issue. The

contrary conclusion reached by the Court of Criminal Appeals is hereby reversed.

2. Plain Error Review

Even if the Court of Criminal Appeals had concluded that the defendant waived

the issue for review, it could have nonetheless considered whether a plain error analysis

was applicable under the facts to examine whether any error occurred. Appellate courts

in Tennessee have “the authority to ‘consider an error that has affected the substantial

rights of a party at any time, even though the error was not raised in the motion for a new

trial or assigned as error on appeal.’” State v. Knowles, 470 S.W.3d 416, 423 (Tenn.

2015) (quoting Tenn. R. App. P. 36(b)). “We refer to this discretionary consideration of

waived issues as ‘plain error’ review.” Knowles, 470 S.W.3d at 423; see also Grindstaff

v. State, 297 S.W.3d 208, 219 n.12 (Tenn. 2009). “Plain error” review is also available

when counsel fails to lodge a contemporaneous objection when the issue first arises.

State v. Thomas, 158 S.W.3d 361, app. 413 (Tenn. 2005). “To rise to the level of plain

error, [a]n error would have to [be] especially egregious in nature, striking at the very

4

As previously referenced in this opinion, defense counsel alleged that after the two-hour

recess, a juror made a comment that she had taken a “nice nap” during that time. The defense relied upon

this comment to infer juror fatigue.

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heart of the fairness of the judicial proceeding.” State v. Martin, 505 S.W.3d 492, 504

(Tenn. 2016) (alterations in original) (internal quotation marks omitted) (quoting State v.

Banks, 271 S.W.3d 90, 127 (Tenn. 2008)).

In Tennessee, an appellate court will grant relief for plain error only

if

(a) the record clearly establishes what occurred in the trial court;

(b) a clear and unequivocal rule of law has been breached;

(c) a substantial right of the accused has been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

Martin, 505 S.W.3d at 504 (citations omitted). “‘[T]he presence of all five factors must

be established by the record before this Court will recognize the existence of plain error,

and complete consideration of all the factors is not necessary when it is clear from the

record that at least one of the factors cannot be established.’” Id. (citations omitted). “‘If

any one of these factors is not satisfied, we need not consider the remaining factors.’” Id.

at 505 (citations omitted). “‘When asserting plain error, the defendant bears the burden of

persuading the appellate court that the trial court committed plain error and that the error

was of sufficient magnitude that it probably changed the outcome of the trial.’” Id.

(citations omitted); see also State v. Willis, 496 S.W.3d 653, 707 (Tenn. 2016) (citations

omitted) (noting that the defendant bears the burden of persuading an appellate court that

plain error exists).

Before examining whether plain error exists, we begin with the premise that it is

incumbent upon the defendant in this case to persuade an appellate court that plain error

occurred that was sufficient to change the outcome of the trial. The defendant did not

assert plain error as a basis for review in her brief, nor did she argue before this Court

that plain error should operate to grant her relief. Nonetheless, our review of the record

leads us to the conclusion that plain error is inapplicable in this case.

Notably, at least one of the five requisite factors is missing from this case. There

is a lack of clear and unequivocal law on this subject.5 Even the standard of review to be

5

In this case, we are not called upon to decide whether the rule announced in Henderson v.

United States, 568 U.S. 266 (2013), applies in Tennessee, because the law at issue in this case was

unclear at both the time of trial and the time of appeal. The United States Supreme Court held in

Henderson that an error is “plain” within the meaning of the federal plain error rule, Fed. R. Crim. P.

52(b), as long as the error was plain at the time of appellate review, even if the error was not plain at the

time of trial. Henderson, 568 U.S. at 279 (concluding “that whether a legal question was settled or

unsettled at the time of trial, ‘it is enough that an error be ‘plain’ at the time of appellate consideration’”)

(quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).

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applied in circumstances such as this is unsettled. The State urges us to review for abuse

of discretion, see infra, while the defense argues that we should presume a constitutional

due process violation. Some cases indicate that late-night proceedings should only be

conducted under unusual circumstances, see infra, while other cases favor allowing the

trial court discretion to direct the proceedings in the courtroom, see infra.

As noted supra, the standard of review to be utilized by appellate courts when

ascertaining the propriety of late-night court proceedings is unclear. The State urges us

to recognize a trial court’s inherent discretion to direct the manner of proceedings in the

courtroom and thus apply an abuse of discretion standard. See State v. Reid (“Reid I”),

91 S.W.3d 247, app. 301 (Tenn. 2002); State v. Poe, 755 S.W.2d 41, 47 (Tenn. 1988);

State v. Simon, 635 S.W.2d 498, 505 (Tenn. 1982). Although the defendant did not cite a

standard of review in her brief, she adopted the reasoning of the Court of Criminal

Appeals and further argued to this Court that we should presume a constitutional due

process violation that the State should rebut. The Court of Criminal Appeals, in its

opinion, stated that a finding of “unusual circumstances,” coupled with the agreement of

all parties and jurors, should be necessary before late-night court sessions are conducted.

Walls, 2016 WL 1409836, at *13-14; see also State v. Parton, 817 S.W.2d 28, 33-34

(Tenn. Crim. App. 1991); State v. McMullin, 801 S.W. 2d 826, 832 (Tenn. Crim. App.

1990); Hembree v. State, 546 S.W.2d 235, 242-43 (Tenn. Crim. App. 1976).

The Court of Criminal Appeals relied upon Hembree, 546 S.W.2d at 242-43, as

the “leading case” on this issue. Walls, 2016 WL 1409836, at *12. In Hembree, defense

counsel addressed the trial court at midnight and stated that they could no longer render

effective assistance because they were not “thinking clearly.” Hembree, 546 S.W.2d at

242. The court proceeded with the trial despite these assertions from counsel. Id.

Reasoning that “[t]he last hour of a trial is an essential portion thereof,” the Hembree

court reversed Hembree’s conviction. Id. at 242-43. The Hembree court went further

and opined that “absent unusual and compelling circumstances, the jury should not be

permitted to listen to evidence until 1:00 a.m.” Id.

By way of contrast, both parties in this case had rested their cases and the proof

had been concluded when the defendant’s medical issue arose. Defense counsel in the

instant case made a suggestion that because the defendant’s trip to the hospital could be

protracted, it would be better to resume again the following morning. He made that

statement around the four o’clock hour in the afternoon. He did not raise the issue again.

He did not request an adjournment due to counsel fatigue or indicate that he could no

longer perform effectively. In fact, during the ensuing hours of jury instruction,

deliberation, jury question, and refreshment break, counsel did not raise the issue again or

allege fatigue. Moreover, the Court of Criminal Appeals did not apply the “abuse of

discretion” standard of review in this case when it concluded that the trial court erred by

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allowing the jury to listen to evidence into the late hours of the night. Walls, 2016 WL

1409836, at *14. This case is factually and procedurally distinguishable from Hembree.

Relying on Hembree, the Court of Criminal Appeals in a subsequent case

“subscribe[d] to [the] validity” of the rule set forth therein that absent a compelling

reason, the court schedule should not have been as rigorous as it was. McMullin, 801

S.W.2d at 827. Although the trial court cited as unusual circumstances the facts that the

jury was sequestered, the jury was comprised of twelve women, and the trial judge had an

airplane reservation the following day, the appellate court nonetheless found those

reasons unpersuasive in this context. Id. at 829-30. However, of notable exception is

that in McMullin, counsel interposed an objection at 10:30 p.m. on the first night of trial,

asking the court to be in recess until 9:00 a.m. the next morning. Id. at 827-28. The trial

court overruled the objection and continued until 11:45 p.m. Id. at 828. At 6:10 p.m. on

the second day of trial, counsel asserted that he was “fatigued” from the late night before

and that his “degree of fatigue will be prejudicial” to the defense. Id. Proceedings

continued until the jury received the case at 9:28 p.m., and it returned a verdict at 11:38

p.m. Id. at 828-29.

McMullin is factually and procedurally distinguishable from the case sub judice.

Counsel lodged not one, but two, objections to the lateness of the hour on two separate

nights. Id. at 831. The trial court held late sessions two nights in a row. Id. Defense

counsel also asserted the very valid reason that he was fatigued and that he felt that his

fatigue would prejudice his client. While the McMullin court recognized that “both the

federal and state constitutions bridle the power of a trial judge in the exercise of his or her

discretion in setting after-hours court sessions in criminal cases tried before a jury,” id. at

832, it nonetheless did not review the trial court’s decision in that case for abuse of

discretion. For those reasons, McMullin is not instructive in this case.

Neither is the Parton case cited by the Court of Criminal Appeals instructive on

this issue. 817 S.W.2d at 31. In Parton, the criminal trial began and concluded on the

same day. Id. Jury selection lasted approximately two to three hours, then the trial court

heard substantive motions before the proof began. Id. The trial court indicated early in

the day that it intended to finish the case that same day because of a conflict with the use

of the courtrooms the following day. Id. at 33. The State called eight witnesses in its

case in chief. Id. at 31. Each witness was then subjected to cross-examination by three

attorneys, each representing a co-defendant, and redirect by the State. Id. at 32. The

defense collectively called five witnesses. Id. at 31. The trial court took two recesses

and a dinner break. Id. The jury received the case for deliberation at 11:45 p.m. and

returned the verdict at 2:15 a.m. the following morning. Id.

No objection was made to the lateness of the hour. Rather, the Court of Criminal

Appeals noted that defense counsel “obliquely” commented on the point, saying, “The

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other thing I wanted to do is get a little direction on what the Court wanted to do. I just

wanted to mention that the jury’s been working a long time. I didn’t know what the

Court wanted to do.” Id. at 32. After the jury returned with a verdict of guilty, counsel

raised the issue for the first time in his motion for judgment of acquittal or, in the

alternative, a motion for a new trial. Id. Nonetheless, the Parton court concluded:

We are unable in this case to say that appellant has waived his right

to present this issue on appeal by not timely and expressly objecting at trial.

Such a disposition would lead to an unfair result. We hold that plain error

existed in the trial court’s conducting the trial into the late night of April

5th and early morning hours of April 6, 1990. Appellant’s contention as to

this issue is meritorious, and a new trial must be ordered.

Id. at 35 (citations omitted). The court reasoned, “Regardless of whether counsel or any

juror objects, the late night sessions should be avoided; and they must be justified

because of unusual circumstances . . . . [T]he threshold question which must always be

determined by the court is whether the circumstances justify the unusual session.” Id. at

33-34.

While we note that the lateness of the trial in that case was not justified by the

conflict in scheduling courtrooms, Parton was decided before this Court adopted the five-

prong test for determining whether an error at trial rose to the level of plain error and

therefore utilized prior precedent. See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.

2000). In 1991, when Parton was decided, the plain error analysis was based on “the

facts and circumstances of the particular case.” State v. Ogle, 666 S.W.2d 58, 61 (Tenn.

1984). General “unfairness,” without more, will not suffice to excuse waiver pursuant to

plain error review after Smith. We are not confident that the same result would have been

reached had the current plain error analysis been applied. In the Parton case, we again

note that the Court of Criminal Appeals did not review the issue under the “abuse of

discretion” standard but rather relied upon “plain error” to grant the defendant relief.

Intermediate appellate courts must follow the law; a “court[] of last resort . . . is

not inexorably bound by its own precedents but will follow the rule of law which it has

established in earlier cases, unless clearly convinced that the rule was originally

erroneous . . . .” Frazier v. State, 495 S.W.3d 246, 253 (Tenn. 2016), (citations omitted),

cert. denied, 137 S. Ct. 2163 (2017). In several cases, this Court has cited “abuse of

discretion” as the applicable standard of review to be applied to this issue. See State v.

Reid (“Reid II”), 213 S.W.3d 792, app. 826 (Tenn. 2006); Reid I, 91 S.W.3d at app. 301;

Poe, 755 S.W.2d at 47; Simon, 635 S.W.2d at 505. However, this Court has never

expressly required a showing of unusual circumstances before late-night sessions can be

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held.6 There is a lack of a clear and unequivocal rule of law concerning late night court

proceedings; accordingly, no such rule could have been breached in this case, thus plain

error review cannot be applied herein to grant the defendant relief.

To settle this area of law,7 we now conclude that the correct legal standard for

reviewing whether a trial court errs in conducting late-night proceedings is abuse of

discretion.8 “A trial court abuses its discretion when it applies an incorrect legal

6

It should be noted that in both Reid I and Reid II, this Court adopted the conclusion of the

Court of Criminal Appeals in the appendices. The Court of Criminal Appeals correctly applied the abuse

of discretion standard; however, it cited Hembree and McMullin, thereby implicitly approving the

requirement of unusual circumstances. Walls, 2016 WL 1409836, at *13.

7

Although our decision regarding the appropriate standard of review is not technically

necessary to resolve this appeal, our decision to address this issue is not inappropriate either. Rule 11 of

the Rules of Appellate Procedure sets forth several criteria for this Court to consider when reviewing an

application for permission to appeal. Tenn. R. App. P. 11. One of these criteria allows this Court to grant

permission to appeal if there is a “need for the exercise of the Supreme Court’s supervisory authority.”

Tenn. R. App. P. 11(a). See, e.g., Bryant v. State, 460 S.W.3d 513, 527 & n.9 (Tenn. 2015) (affirming the

Court of Criminal Appeals’ conclusion that the petitioner had failed to prove deficient performance of

counsel in a post-conviction case but proceeding nonetheless to address the prejudice prong “to secure

uniformity of decision” among panels of the appellate court with regard to the necessity of jury

instructions on lesser-included offenses), overruled by v. Moore v. State, 485 S.W.3d 411 (Tenn. 2016);

State v. Burgins, 464 S.W.3d 298, 302-03, 307-12 (Tenn. 2015) (granting permission to appeal to secure

uniformity of decision and “to establish the procedure to be followed in bail revocation proceedings”).

Clarifying the proper standard of appellate review that applies to a trial court’s decision to allow or

require late night jury deliberations is an appropriate exercise of our supervisory authority, as clarification

of this point, even in dicta, will provide guidance to defense lawyers, prosecutors, trial judges, and

members of the Court of Criminal Appeals. Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d

877, 882 (Tenn. 1996) (“[I]inferior courts are not free to disregard, on the basis that the statement is

obiter dictum, the pronouncement of a superior court when it speaks directly on the matter before it,

particularly when the superior court seeks to give guidance to the bench and bar. To do otherwise invites

chaos into the system of justice.”). For these reasons, we disagree with Justice Lee’s assertion that our

decision to address this issue amounts to overreaching.

8

In determining that late-night court proceedings should be reviewed for abuse of discretion, we

are aligned with decisions from other states that apply the same standard of review. See, e.g., Pyles v.

State, 947 S.W.2d 754, 758 (Ark. 1997) (noting that “a trial court has great discretion in scheduling a

trial”); People v. Baird, 66 P.3d 183, 195 (Colo. App. 2002) (applying abuse of discretion standard and

rejecting argument that defendant was deprived of a fair trial when trial court allowed jury to deliberate

past midnight to accommodate a juror’s travel plans the following day); Green v. State, 951 So. 2d 962,

964 (Fl. Dist. Ct. App. 2007) (“Trial courts have discretion to resolve issues relating to the course and

conduct of a criminal trial. Whether a trial should be adjourned for the day or continued into the evening

is a decision that falls within this general class of discretionary decisions.” (citations omitted)); Conway v.

State, 642 S.E.2d 673, 691 (Ga. 2007) (“A ‘trial court retains the discretion to determine how late to hold

court before recessing for the evening.’” (citation omitted)); People v. Schuld, 529 N.E.2d 800, 825 (Ill.

App. Ct. 1988) (“A court is given considerable latitude in the orderly procedure of a trial, and the exercise

of that discretion will not be disturbed unless a clear abuse is shown.” (citation omitted)); Mack, 435 So.

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standard, reaches a conclusion that is not logical, bases its decision on a clearly erroneous

assessment of the evidence, or uses reasoning that causes an injustice to the complaining

party.” State v. Davidson, 509 S.W.3d 156, 193 (Tenn. 2016) (citing State v. Davis, 466

S.W.3d 49, 61 (Tenn. 2015)); see also State v. Smith, 492 S.W.3d 224, 243 (Tenn. 2016).

CONCLUSION

We conclude that the defendant has waived appellate review of this issue and that

plain error review is not applicable to grant her relief from her convictions. Accordingly,

we reverse the judgments of the Court of Criminal Appeals. We further conclude that the

appropriate standard of appellate review of late-night court proceedings is abuse of

discretion. Costs of this appeal are taxed to the defendant, Susan Walls, for which

execution may issue if necessary.

_________________________________

ROGER A. PAGE, JUSTICE

2d at 565 (stating that “matters pertaining to the conduct of trial are within the sound discretion of the trial

court” (citation omitted)); Hooker v. State, 716 So. 2d 1104, 1113-14 (Miss. 1998) (finding no abuse of

discretion when trial court allowed deliberations to begin at 6:45 p.m. and the jury returned verdict of

guilty at 11:45 p.m., despite defendant’s “request” to begin deliberations the following morning);

Schreiner, 754 N.W.2d at 762-63 (holding that the trial court “certainly” did not abuse its discretion in

overruling motion for a new trial that was predicated on grounds that had been waived during trial);

People v. Meekins, 545 N.Y.S.2d 791, 791 (N.Y. App. Div. 1989) (reasoning that “the court did not

improvidently exercise its discretion” by allowing the jury to commence deliberations at 8:30 p.m., by

partially recharging the jury at 12:16 a.m., and by permitting it to continue until a verdict was reached at

1:04 a.m. because the court “acced[ed] to the jurors’ wishes”); Garza, 783 S.W.2d at 798 (holding that the

length of a trial day “rests within the sound discretion of the trial court; absent an abuse of that discretion

no error is shown” (citation omitted)). Our review of other jurisdictions yielded no authority for the

proposition that late-night court proceedings are presumptively unconstitutional.

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