         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs January 24, 2012

               STATE OF TENNESSEE V. MARTIN DEAN GIBBS

                 Appeal from the Criminal Court for Davidson County
                    No. 2009-D-3561 Mark J. Fishburn, Judge


                  No. M2011-00740-CCA-R3-CD - Filed June 27, 2012


JEFFREY S. BIVINS, J., concurring.

       I concur in the results reached in the majority opinion. Indeed, I join in the majority
opinion on all but one issue. I write separately to address the issue of the appropriate
standard of review by this Court on hearsay evidentiary issues. The majority applies an abuse
of discretion standard of review to the hearsay issue in this case.

        In State v. Gilley, 297 S.W.3d 739, 759-60 (Tenn. Crim. App. 2008), perm. app.
denied (Tenn. 2009), this Court held that a de novo standard of review applied to our review
of hearsay issues. The Tennessee Supreme Court appeared to question Gilley on this holding
in Pylant v. State, 263 S.W.3d 854, 871 n. 26 (after noting the Gilley court’s holding on this
issue, opined that “this Court continues to believe that questions concerning the admissibility
of evidence are reviewed under an abuse of discretion standard . . . .”). Yet, the Pylant court
stopped short of overruling the Gilley holding on this issue. Instead, the court held that the
post-conviction court in that case “committed error under either standard of review.” Id.

      Further complicating the issue is the fact that the Pylant decision was issued on
September 25, 2008. The Gilley opinion from this Court only had been filed on August 13,
2008. Then, on February 17, 2009, even in light of Pylant, the supreme court denied
permission to appeal in Gilley without restriction. After that action, Gilley subsequently
became a reported decision. With regard to reported decisions, Rule 4(G)(2) of the Rules of
the Supreme Court provides: “Opinions reported in the official reporter . . . shall be
considered controlling authority for all purposes unless and until such opinion is reversed or
modified by a court of competent jurisdiction.”

        Subsequent opinions from this Court have come to differing conclusions. Compare
State v. George John Byrd, No. E2009-02091-CCA-R3-CD, 2010 WL 4622009 (Tenn. Crim.
App. Nov. 15, 2010), perm. app. denied (Tenn. 2011) (applying abuse of discretion standard)
with State v. Brandon M. Cartwright, No. W2010-01253-CCA-R3-CD, 2011 WL 2410370
(Tenn. Crim. App. June 10, 2011), perm. app. denied (Tenn. 2011) (applying de novo
standard of review); Tony A. Phipps v. State, No. E2008-01784-CCA-R3-PC, 2010 WL
3947496 (Tenn. Crim. App. Oct. 11, 2010) (applying de novo standard of review).

       While I certainly recognize that our supreme court questioned Gilley in Pylant and
may well overrule or modify Gilley at some point in the future, to date that has not occurred.
Therefore, based upon my interpretation of Supreme Court Rule 4(G)(2), I am compelled to
conclude that we are bound by Gilley “unless and until such opinion is reversed or modified
by a court of competent jurisdiction.” Accordingly, in the instant case, I would apply a de
novo standard of review to the hearsay issue regarding the challenged testimony of Lisa
Dupree. Nevertheless, even applying this more stringent standard of review, I would reach
the same conclusion as the majority. I would hold that the challenged testimony was
admissible under the medical diagnosis and treatment exception to the hearsay rule. See
Tenn. R. Evid. 803(4).


                                           _________________________________
                                           JEFFREY S. BIVINS, JUDGE
