# State v. Nesbit

> Tennessee Supreme Court · September 28, 1998 · 978 S.W.2d 872

URL: https://www.frixlaw.com/law-library/cases/9524360

## Case

- **Full name:** STATE of Tennessee, Appellee, v. Clarence C. NESBIT, Appellant
- **Court:** Tennessee Supreme Court
- **Decided:** September 28, 1998
- **Citations:** 978 S.W.2d 872; 1998 Tenn. LEXIS 533; 1998 WL 670966
- **Precedential status:** Published
- **Opinion:** On rehearing by Drowota
- **Judges:** Anderson, Birch, Drowota, Holder, Reid
- **Cited by:** 252 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9524360

## How later opinions describe it (automated extraction)

- stating that juries in capital cases may still “use their common knowledge and experience in deciding whether a fact is logically deducible from the circumstances in evidence, or in making reasonable inferences from the evidence, and may test the truth and weight of the eviden…
- holding that, given the statutory mandate directing this Court to review capital convictions and sentences, a defendant’s failure to file a motion for new trial does not deprive this Court of jurisdiction to review issues that should have been raised in a motion for new trial
- recognizing that Cozzolino does not limit admission of evidence about the nature and circumstances of the crime, including victim impact evidence, even though such proof is not necessarily related to a statutory aggravating circumstance
- finding no error in admission of photograph taken while victim was alive but recognizing that “where the victim’s identity has already been proven, further proof may be cumulative and, therefore, inadmissible”
- stating that photograph evidence may be inadmissible “where the victim’s identity has already been proven” because “further proof may be cumulative and, therefore, inadmissible”

## Opinion text

OPINION ON PETITION FOR REHEARING
Petitions for rehearing have been filed on behalf of both the State and Clarence Nesbit. The State asks the Court to grant rehearing and hold that our review in capital cases is limited to only those issues identified in Tenn. Code Ann. § 39-13-206 (c)(l)(1997 Repl.). We decline. The initial opinion adequately addressed this issue.
The defendant argues that the opinion of the Court is invalid because only four justices participated in the decision. Three justices constitute a quorum and may sit as a Court and render valid judgments. Radford Trust Co. v. Lumber Co., 92 Tenn. 126, 137 , 21 S.W. 329 (1893). Four justices participated in the decision in this case, with three constituting the majority. The judgment is valid.
Accordingly, the petitions for rehearing filed by the State and the defendant are denied, with costs taxed equally between the State and the defendant.
Justice Birch adheres to the views expressed in his original dissenting opinion.
/s/ Frank F. Drowota, III
Frank F. Drowota, III, Justice
ANDERSON, C.J., and HOLDER, J., concur.
REID, Special Justice, not participating.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9524360. Public record. Not legal advice.