State v. Seagraves

DWYER, Judge,

dissenting.

I cannot agree with the majority’s reversal of this conviction, based on the tenets of Rule 12(b)(2) of the Tennessee Rules of Criminal Procedure, other established precedents of law, and lastly, the fact that any error at all here was unassigned. In Johnson v. U.S., 318 U.S. 189 , 63 S.Ct. 549 , 87 *622 L.Ed. 704 (1943), the following language may be found:

To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.

Id., 318 U.S. at 202 , 63 S.Ct. at 555 (Frankfurter, J. concurring).

After the parties had submitted their briefs in this case, a member of this panel unilaterally issued a self-titled per curiam order directing them to address whether the statute of limitations barred the conviction, an issue which had not been previously raised at any level. In Black’s Law Dictionary, per curiam is defined as “by the court; a phrase used in the reports to distinguish an opinion of the whole court from an opinion written by any one judge.” I believe that the per curiam order was improperly issued.

I am also firmly opposed to the majority’s use of the plain error rule to reach this unassigned error. This Court held in State v. Davidson, 606 S.W.2d 293 (Tenn.Crim.App.1980) that the failure to raise a valid defense pretrial constitutes a waiver under Tennessee Rules of Criminal Procedure 12(b) and a party’s failure to do so is not a situation which an appellate court can seize upon as plain error. Id. at 295 .

The reader without access to the record can not discern from the majority’s opinion when the appellant confessed to the authorities, although a reading of it implies that the confession took place long ago and the police waited until 1988 to act. In fact, although the killing took place in 1968, the confession occurred on November 4, 1988, twenty years later. An arrest warrant was promptly issued within three days of the confession. That fact raises the question, left unaddressed by the majority, of whether the statute of limitations had been tolled during-those twenty years. It is axiomatic that a statute of limitations does not begin to run until it has been discovered that a crime was committed. Had this matter been properly presented and passed upon by the trial court, we might have had the pertinent facts in the record before us and hence no need for a quest for error by this Court.

The majority has ignored settled law which requires the appellant, if he has a question concerning the statute of limitations, to present it pretrial. Rule 12, Tenn. R.Crim.P. Nor was the issue raised in the motion for a new trial. The question upon which the majority relies to reverse and dismiss this conviction has never been presented to the trial court.

Rule 12(b) of the Tennessee Rules of Criminal Procedure states that issues which must be raised before trial are “defenses and objections based on defects in the institution of the prosecution” or “defenses and objections based on defects in the indictment (other than lack of jurisdiction or failure to charge an offense). The trial court had absolute jurisdiction over the subject matter and retained that jurisdiction when the appellant waived the issue by not filing a motion or objection.

In an unanimous opinion by this Court in which the statute of limitations issue was not presented until the motion for new trial, we held in a well-reasoned opinion that it came too late. State v. Hill, 623 S.W.2d 293, 295 (Tenn.Crim.App.1981). I think the Court should adhere to that holding. What the majority evidently overlooked in their reading of State v. Hix, 696 S.W.2d 22, 25 (Tenn.Crim.App.1984) is that there, as opposed to the case sub judice, a timely pretrial motion was filed, properly preserving the issue for appellate review.

In another well-reasoned and unanimous opinion of this Court concerning issues not presented pretrial, Judge Jones approvingly cited State v. Hill, supra, as proper for constitutional as well as nonconstitutional issues.

The appellant challenges the constitutionality of the statute proscribing the use of minors for obscene purposes. T.C.A. § 39-6-1137. While the contentions of the appellant in this regard are not clear, it appears he predicates his argument on the ground the definition of ‘sexual conduct’ is overbroad because it prohibits using a minor to pose or model in the nude.

*623 Our review of the record reveals the appellant did not file a pre-trial motion attacking the indictment on the ground the statute was unconstitutional. The appellant raised this issue for the first time post-trial in his motion for a new trial.

In this jurisdiction ‘[djefenses and objections based on defects in the indictment, presentment or information’ must be raised prior to trial. Tenn.R.Crim.P. 12(b); State v. Farmer, 675 S.W.2d 212, 214 (Tenn.Crim.App.1984), [constitutionality of statute]. When an accused fails to comply with this mandate, he waives the issue. Tenn.R.Crim.P. 12(f). See State v. Farmer, supra, [constitutionality of statute]. State v. Hill, 623 S.W.2d 293 (Tenn.Crim.App.1981), [statute of limitations]. The waiver provision of Rule 12 applies to issues embracing the constitutionality of statutes as well as the constitutional rights of the accused. State v. Farmer, supra; State v. Foote, 631 S.W.2d 470, 472-473 (Tenn.Crim.App.1982), [identification issue]. Therefore, this issue is without merit, (emphasis added)

State v. Rhoden, 739 S.W.2d 6, 10 (Tenn.Crim.App.1987).

I would adhere to that sound holding and apply that reasoning to the issue found by the majority. It would convey to bench and bar that consistency has been observed and that impartiality can never be questioned when you are on both sides of the issue.

The majority further notes that Rule 12 of the Tennessee Rules of Criminal Procedure is “harsh” and seemingly indicates a belief that this Court now has a duty to mediate its effects. If a court makes an exception to an established rule because it fears appearing harsh, 1 sooner or later that court will be embarrassed by the reference to the decision in which it disregarded the rule. Confusion and uncertainty will follow.

Despite the fact that the majority finds the evidence supported the conviction, it orders dismissal of the charges against the appellant. I also cannot agree that dismissal is proper, given that the majority’s grounds are legal and not factual. In such situations, a remand for further proceedings is proper.

In conclusion, an apocryphal story is told about the late, great Oliver Wendell Holmes, wherein he is quoted as replying to his law clerk who told him to see that justice be done, “Justice? I don’t know anything about justice. I serve to make sure that the law has been observed.” Without rules and their observance, the criminal justice system simply will not work. I would affirm this conviction and hold that the appellant has waived the issue that the majority finds for reversal and dismissal.

. As Humpty Dumpty chillingly foresaw in Lewis Carroll’s Alice in Wonderland, “When I use a word, it means just what I choose it to mean— neither more nor less.... [A]djectives you can do anything with_”