State of Tennessee v. Andrew Neal Davis

04/09/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 12, 2023

STATE OF TENNESSEE v. ANDREW NEAL DAVIS

Appeal from the Criminal Court for Davidson County

Nos. 2000-A-195, 2001-A-391 Cheryl A. Blackburn, Judge

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No. M2023-00065-CCA-R3-CO

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The defendant appeals from the trial court’s denial of his motion for access to the sealed

Department of Children’s Services (“DCS”) juvenile records relating to the victim’s

mother’s records which were sealed to public inspection but provided to the parties prior

to the defendant’s trial. Upon our review of the record, the briefs of the parties, and the

applicable law, we conclude the defendant does not have an appeal as of right from the

denial of his motion. Additionally, the defendant has failed to establish review as a petition

for writ of certiorari is appropriate. Therefore, the instant appeal is dismissed.

Tenn. R. App. P. Appeal as of Right; Appeal Dismissed

J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR.,

and ROBERT H. MONTGOMERY, JR., JJ., joined.

Daniel A. Horwitz, Lindsay Smith, and Melissa K. Dix, Nashville, Tennessee, for the

appellant, Andrew Neal Davis.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin Ball, Senior Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Anna Hamilton,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

The defendant was indicted in January of 2001 by the Davidson County Grand Jury

for first-degree felony murder and aggravated child abuse for his role in the death of

C.L.M.,1 an infant. State v. Davis, No. M2002-02375-CCA-R3-CD, 2004 WL 1562544

(Tenn. Crim. App., Jul. 9, 2004), perm. app. denied, (Tenn. Dec. 6, 2004). The defendant’s

first trial resulted in a mistrial. Id. Upon being retried, the defendant was convicted as

charged and received an effective sentence of life in prison. Id. This Court affirmed the

defendant’s convictions on direct appeal. Id. Subsequently, the defendant filed a petition

for post-conviction relief primarily based on claims that trial counsel was ineffective and

that the trial court committed various constitutional errors at trial. Davis v. State, No.

M2009-00423-CCA-R3-PC, 2010 WL 2787700, at *1 (Tenn. Crim. App. July 14, 2010),

perm. app. denied (Dec. 8, 2010). After a hearing, the post-conviction court denied the

petition. On appeal, this Court affirmed the judgment of the post-conviction court. Id.

On July 8, 2022, the defendant filed a motion for “Access to Sealed Records” in

which he requested “access to any sealed records from his criminal cases in order to

evaluate and prosecute potential post-conviction claims on the [d]efendant’s behalf.” The

subject of the defendant’s request was the sealed DCS records of the victim’s mother when

the mother was a juvenile. During the hearing, the defendant stated that he simply wanted

a copy of the records that had been sealed but provided to trial counsel prior to trial because

the defendant’s new counsel did not have a copy of those records. Additionally, the

defendant noted that his motion “was not meant to, to be clear, to be a back route to

appealing [the trial court’s] sealing order, to be clear with that.”

Next, the defendant requested that “the portion of the documents that were entirely

sealed” also be unsealed and provided to counsel. According to the defendant, his

counsel’s investigation indicated that certain documents might be contained in the sealed

documents “that may be powerfully exculpatory to [the defendant],” specifically pertaining

to the defendant’s claim of actual innocence. After some discussion concerning what the

defendant “suspected” might be in the sealed files concerning the victim’s mother’s

juvenile record, the trial court noted that it would “take more than simple suspicion” to

have the court unseal records it had already determined should be sealed. At the conclusion

of the hearing, the trial court entered an order “unseal[ing] the portion of the records that

previously had been provided to [the] attorneys in this case.”

On November 10, 2022, the defendant filed a second “Motion for Access to Sealed

Records.” In his second motion, the defendant, for the first time, challenged the trial

court’s initial July 2001 ruling sealing the records prior to the defendant’s trial.

Additionally, the defendant argued “[t]hat investigation yielded extraordinary—and

extraordinarily concerning—exculpatory evidence regarding [the victim’s mother]. In

particular, it yielded evidence that [the victim’s mother] had abused—both physically and

sexually—multiple young children in her care when she was a minor.” Based on this

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It is the policy of this Court to refer to minor victims by their initials. No disrespect is intended.

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allegation, the defendant argued he was entitled to review all records “whether they are

maintained under seal or not . . . given their likely exculpatory nature.”

A hearing was held concerning the defendant’s second motion on January 4, 2023.

At the outset of the hearing, the trial court read into the record the transcript from the

original July 24, 2001 hearing concerning the sealing of the records. After refreshing the

everyone’s recollection of the initial hearing, the trial court noted that all the parties had

access to both sets of documents prior to trial but they were sealed from the public. In

response, counsel stated, “We thought that we didn’t have access to them. If it turns out

that we didn’t, it’s just not in the file anymore and we can have access now, then, I think

that that will clear up our problem.” The trial court then agreed to provide counsel with

another copy of all sealed documents but maintained, consistent with her July 2001 ruling,

that the documents must not be shared with the public. Counsel agreed with the trial court’s

decision and did not object. On January 10, 2023, the trial court entered a written order

memorializing its oral ruling.

This appeal followed.

Analysis

On appeal, the defendant contends the trial court erred in denying his motion for

access to all sealed DCS records in this matter. He argues the trial court “failed either to

articulate a compelling interest justifying sealing or to narrowly tailor its sealing order.”

Additionally, the defendant contends that the restriction on his “ability to disseminate the

sealed records should be reversed to allow for thorough investigation into all available

claims.” In response, the State insists the instant appeal should be dismissed “because no

appeal as of right exists from the trial court’s denial of a motion to access sealed records.”

Upon our review of the record, the arguments of the parties, and the applicable law, we

agree with the State and dismiss the instant appeal.

We note initially that the defendant’s brief appears to argue that the trial court

abused its discretion in initially sealing the records in July 2001. The defendant failed to

challenge the original order during both his direct appeal and his petition for post-

conviction relief. Clearly, his attempt to appeal the original order twenty years later is

untimely, and therefore, the defendant has waived his right to challenge the initial order of

the trial court. Accordingly, we will only address the defendant’s challenge to the trial

court’s most recent order giving the defendant access to the sealed records but preventing

the dissemination of those records to the public.

However, before we can address the defendant’s claim that he has an appeal as of

right from the trial court’s denial of his motion, we believe clarification of what took place

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during the hearing is required—what the defendant requested; what the defendant agreed

to; and what the trial court granted and/or denied. Initially we note that the defendant’s

motions are styled “Motion for Access to Sealed Records.” In both motions, the defendant

simply asks for his counsel to have access to the sealed records. During the initial hearing,

the defendant informed the trial court that his motion “was not meant to, to be clear, to be

a back route to appealing [the trial court’s] sealing order, to be clear with that.” Then,

during the second hearing, once the trial court pointed out that the parties had been granted

access to all sealed documents prior to trial, the defendant stated, “We thought that we

didn’t have access to them. If it turns out that we didn’t, it’s just not in the file anymore

and we can have access now, then, I think that that will clear up our problem.” In short,

the defendant told the trial court it was not trying to relitigate the trial court’s July 2001

ruling but was only seeking access to both sets of the documents. Finally, the defendant

informed the trial court he was simply looking for information which might aid in future

challenges to the defendant’s conviction such as a claim of actual innocence. Thus, as

discussed supra, the defendant has waived any claim, even if it were timely, concerning

the trial court’s original ruling. Additionally, the defendant sought and was granted access

to both sets of sealed documents which, according to the trial court, the defendant had

access to prior to his trial. Therefore, the only issue before this Court is whether the trial

court erred in ruling the defendant could not disseminate the records to the public.

Turning to the question of whether the defendant’s appeal is properly before this

Court, we note that a defendant in a criminal case does not have an appeal as of right in

every instance. State v. Rowland, 520 S.W.3d 542, 545 (Tenn. 2017) (“A defendant in a

criminal case does not have an appeal as of right in every instance.”) Tennessee Rule of

Appellate Procedure 3(b) provides when a defendant in a criminal case has an appeal as of

right:

In criminal actions an appeal as of right by a defendant lies from any

judgment of conviction entered by a trial court from which an appeal lies to

the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty;

and (2) on a plea of guilty or nolo contendere, if the defendant entered into a

plea agreement but explicitly reserved the right to appeal a certified question

of law dispositive of the case pursuant to and in compliance with the

requirements of Rule 37(b)(2)(A) or (D) of the Tennessee Rules of Criminal

Procedure, or if the defendant seeks review of the sentence and there was no

plea agreement concerning the sentence, or if the issues presented for review

were not waived as a matter of law by the plea of guilty or nolo contendere

and if such issues are apparent from the record of the proceedings already

had. The defendant may also appeal as of right from an order denying or

revoking probation; an order denying a motion for reduction of sentence

pursuant to Rule 35(d), Tennessee Rules of Criminal Procedure; an order or

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judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of

Criminal Procedure, from a final judgment in a criminal contempt, habeas

corpus, extradition, or post-conviction proceeding, from a final order on a

request for expunction, and from the denial of a motion to withdraw a guilty

plea under Rule 32(f), Tennessee Rules of Criminal Procedure.

Tenn. R. App. P. 3(b).

Rule 3(b) does not specifically provide for an appeal as of right from an order

denying a request to unseal records. A defendant in a criminal case has no appeal as of

right unless it is enumerated in Rule 3(b). Rowland, 520 S.W.3d at 545; see also State v.

Bobo, 672 S.W.3d 299, 302 (Tenn. Crim. App. 2023) (holding a defendant does not have

an appeal as of right from an from the denial of a motion seeking resentencing pursuant to

Tenn. Code Ann. § 39-17-432(h)); State v. Lane, 254 S.W.3d 349, 353 (Tenn. 2008)

(holding there is no appeal as of right from an order denying a defendant’s motion to

modify a condition of probation); Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005)

(holding the defendant, in a case decided prior to the amendment of Rule 3(b) to allow for

an appeal as of right for orders under Tennessee Rule of Criminal Procedure Rule 36, did

not have an appeal as of right from the dismissal of a Rule 36 motion to correct an illegal

sentence); State v. Hegel, No. E2015-00953-CCA-R3-CO, 2016 WL 3078657, at *1-2

(Tenn. Crim. App. May 23, 2016) (ruling the defendant had no right to appeal the denial

of his motion to suspend court costs); State v. Moses, No. W2011-01448-CCA-R3-CD,

2011 WL 6916487, at *1-2 (Tenn. Crim. App. Dec. 28, 2011) (holding the defendant did

not have a Rule 3 appeal as of right from an order denying his motion to reinstate

probation); State v. Bean, No. M2009-02059-CCA-R3-CD, 2011 WL 917038, at *2 (Tenn.

Crim. App. Mar. 16, 2011) (holding a defendant has no right of appeal from an order

denying his motion for a furlough); State v. Childress, 298 S.W.3d 184, 186 (Tenn. Crim.

App. 2009) (holding a defendant cannot appeal from an order allowing the State to nolle

prosequi the charges against him); State v. Coggins, No. M2008-00104-CCA-R3-CD, 2009

WL 482491, at *3-4 (Tenn. Crim. App. Feb. 25, 2009) (ruling a defendant has no appeal

as of right from an order denying a new probation revocation hearing); Simon v. State, No.

M2003-03008-CCA-R3-PC, 2005 WL 366893, at *2 (Tenn. Crim. App. Feb. 16, 2005)

(holding the defendant had no appeal as of right from an order denying sentencing credits);

Sexton v. State, No. E2003-00910-CCA-R3-PC, 2004 WL 50788, at *3 (Tenn. Crim. App.

Jan. 12, 2004) (holding a defendant did not have the right to appeal the denial of a motion

for “credit for time at liberty”). Therefore, we conclude that the defendant does not have

an appeal as of right in this matter and that the instant appeal is not properly before us and

should be dismissed.

As part of his claim that he has an appeal as of right from the trial court’s denial of

his motion, the defendant contends this Court has jurisdiction to hear his appeal pursuant

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to Tennessee Code Annotated section 16-5-108(a)(2). However, as noted by the State, the

statute only provides this Court jurisdiction in final orders in “Habeas corpus and Post-

Conviction Procedure Act proceedings . . ., and other cases or proceedings instituted with

reference to or arising out of a criminal case.” Id. The trial court’s order is not a final

judgment in a habeas corpus or post-conviction proceeding and does not arise out of a

criminal case. Therefore, the statute does not provide the defendant with a right of appeal.

Additionally, the defendant insists that review is appropriate under the “collateral

order doctrine.” But the denial of a motion requesting access to sealed records does not

provide the defendant with an appeal as of right. See State v. Bobo, 672 S.W.3d at 302.

This is not a “collateral order.” In support of his claim that the collateral order doctrine

applies, the defendant relies on Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry

Co., 834 F.3d 589, 591-92 (6th Cir. 2016), in which the Sixth Circuit reviewed an order

unsealing a sealed case while that case was still pending in the trial court. In Rudd, the

Court determined it had jurisdiction to consider the appeal because (1) the order

“conclusively and finally determines that the documents will not be protected from

disclosure,” (2) the issue was “completely separate from the merits of the underlying

dispute,” and (3) the order would “be effectively unreviewable” if the parties waited for a

final judgment in the underlying case because the sealed documents would have been

“unsealed and open to the public for some time” before then. Id. at 592-93. However, the

instant appeal is distinguishable from Rudd because here, unlike in Rudd there was no

pending case that the trial court’s order affected at the time the defendant filed his notice

of appeal. The underlying criminal case and the subsequent collateral attacks filed by the

defendant have been final for years. If, as suggested by the record and the State’s brief,

the defendant has subsequently filed a petition for writ of error coram nobis, the defendant

can appeal any ruling made regarding the dissemination of records made as part of such

proceedings.

Moreover, as noted by the State in its brief to this Court, there are no Tennessee

cases in which the “collateral order doctrine” has been acknowledged to provide a criminal

defendant with a right of appeal from an order regarding the sealing of records. As a matter

of fact, only two Tennessee cases have ever applied the doctrine and both involve the

appeals of orders regarding the issue of qualified immunity in federal civil rights claims.

See Cantrell v. DeKalb County, 78 S.W.3d 902, 904 & n.3 (Tenn. Ct. App. 2001); Fann v.

Brailey, 841 S.W.2d 833, 835 (Tenn. Ct. App. 1992); see also Ibsen v. Summit View of

Farragut, LLC, No. E2018-01249-COA-R3-CV, 2019 WL 6790291, at *6 (Tenn. Ct. App.

Dec. 11, 2019) (“The only Tennessee cases cited by the plaintiffs that apply the collateral

source doctrine are federal civil rights claims.”). Additionally, our supreme court declined

to apply the “collateral order doctrine” to an order certifying a class in a class action lawsuit

and in doing so noted that this is a question “controlled by Tennessee law.” See Bayberry

v. Assocs. v. Jones, 783 S.W.2d 553, 558-59 (Tenn. 1990). Much like issues concerning

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the certification of a class, whether records should be sealed or open to the public and how

matters can or cannot be appealed are covered and controlled by Tennessee law and neither

this Court nor our supreme court have ever applied the collateral order doctrine to

circumvent the same. The defendant does not have an appeal as of right pursuant to Tenn.

R. App. P. 3 from the denial of a motion to access or unseal records. Accordingly, this

Court is without jurisdiction and the instant appeal must be dismissed.

In the alternative to an appeal as of right pursuant to Rule 3, the defendant contends

this Court should treat his notice of appeal as a petition for writ of certiorari.2 See

Abdur’Rahman v. State, 648 S.W.3d 178, 190 (Tenn. Crim. App. 2020) (“[E]ven if we

were to determine that the State does not have an appeal as of right under [Tennessee] Rule

[of Appellate Procedure] 3(c), this Court has the authority to treat the State’s notice of

appeal as a petition for a writ of certiorari.”) (citing State v. Adler, 92 S.W.3d 397, 401

(Tenn. 2002), superseded on other grounds by statute, as recognized in State v. Rowland,

520 S.W.3d 542, 545 (Tenn. 2017); State v. L.W., 350 S.W.3d 911, 916 (Tenn. 2011)

(holding that “the failure to follow the procedural requirements of [Tenn. Code Ann. §] 27-

8-106 for petitions for writ of certiorari in civil cases did not deprive the Court of Criminal

Appeals of jurisdiction to hear these appeals”)).

The common law writ of certiorari lies “[w]here no appeal is given[.]” Tenn. Code

Ann. § 27-8-102(a)(2) (2023). The General Assembly codified the common law writ of

certiorari in Tennessee Code Annotated section 27-8-101 (2000). Adler, 92 S.W.3d at 401.

Section 27-8-101 provides:

The writ of certiorari may be granted whenever authorized by law, and also

in all cases where an inferior tribunal, board, or officer exercising judicial

functions has exceeded the jurisdiction conferred, or is acting illegally, when,

in the judgment of the court, there is no other plain, speedy, or adequate

remedy.

The common law writ of certiorari is an “extraordinary judicial remedy,” State v.

Lane, 254 S.W.3d 349, 355 (Tenn. 2008), and may not be used “to inquire into the

correctness of a judgment issued by a court with jurisdiction.” Adler, 92 S.W.3d at 401

(citing State v. Johnson, 569 S.W.2d 808, 815 (Tenn. 1978)). Instead, the writ of certiorari

is available “to correct ‘(1) fundamentally illegal rulings; (2) proceedings inconsistent with

essential legal requirements; (3) proceedings that effectively deny a party his or her day in

court; (4) decisions beyond the lower tribunal’s authority; and (5) plain and palpable abuses

2

The defendant raised the possibility of the instant appeal being considered a petition for writ of

certiorari for the first time in his reply brief, and therefore, the State has not had an opportunity to respond.

However, based on our determination that a petition for writ of certiorari is not applicable, we find

subsequent briefing is not warranted.

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of discretion.’ ” Lane, 254 S.W.3d at 355 (citation omitted). As our supreme court decided

in Adler, where there is “an allegation that the trial court acted without legal authority and

because ‘there is no other plain, speedy, or adequate remedy,’” certiorari review may be

warranted. Adler, 92 S.W.3d at 401.

Here, however, the defendant has failed to show that the trial court’s ruling was

fundamentally illegal, that he has effectively been denied his day in court, that the trial

court lacked authority, or that the trial court abused its discretion in denying the defendant

the opportunity to disseminate the records to the public. In both hearings and his briefs to

this Court, the defendant made clear that he was simply seeking access to the records in

order to evaluate and prepare any “post-conviction claims” such as “actual innocence.”

The trial court granted the defendant’s request. The defendant not only did not object to

the court’s ruling that the records could not be disseminated, but he actually agreed with

the trial court stating that if “we can have access now, then, I think that that will clear up

our problem.” Moreover, it is clear from the defendant’s arguments during both hearings

and the exhibits attached to his second motion that he was fully able to investigate his

alleged claims without providing members of the public copies of the sealed records.

Based on the above, the trial court acted within its legal authority; the trial court’s ruling

has not denied the defendant “his day in court”; and there are other plain and adequate

remedies available to the defendant. There is no need for an “extraordinary judicial

remedy,” and therefore, consideration of the defendant’s notice of appeal as a petition for

writ of certiorari is unwarranted.

Conclusion

Based on the foregoing authorities and reasoning, we conclude the defendant does

not have an appeal as of right from the denial of his motion for access to sealed records

and, therefore, dismiss the appeal.

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J. ROSS DYER, JUDGE

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