        IN THE C:OURrI' 0 :
                         1 CRIMINAL. APPEA1,S OF TENNESSEE
                            A?' 'KNOXVILLE

               STATE OF TENNESSEE LETALVIS COBBTNS,
                                                 \I.


              1,EMARTCUS DAVIDSON, and GEORGE THOMAS

                             Criminal Court for IOlox County
                             30s.86216A, 86216B. & 86216C


                              NO. E2012-OO448-CC.4-KIO-DD


                                            ORDER

        The State of Tennessee. through [he 0fIic.e of tlie Attorney Gcncral, has filed an
application for an extraordinary appeal. see Term. R. App. P. 10, seeking review of thc trial
court's order granting the Defendants ncw trials on grounds that: ( I ) f o ~ m eJudge Richard
                                                                                  r
Baumgartner, who presided over each of the Defendants' trials, committed "nunierons
cgcgious actions" in violation of both the criminal law and the Code of Judicial Conduct
while presiding over the cases resulting in structural en-or that denied these Defendants their
rights to fair trials; and (2) former Judge Baumgartner did not discharge his duty as the
thirteciith juror in these cases before leaving thc bench and the successorjudge on these cases
"is unable L serve as thirteentlijuror" given "the nu~nerous
              o                                                 issues concellling the credibility
of both cei-lain tcstifyiiig witnesscs and the trial judge."

      In our rcview of this matter, we first will set out the chronology. The Defendants
were found guilty by three separate ju~ics the first degree murders o f Channon Chtistian
                                           of
and Christopher Newsom as well as varioi~sother non-capital offenses arising oul of the
same criminal episode that resulted in the inurders; including, but not limited to, especially
aggravated kidnapping. aggravated rape, and especially aggravated robbery.

       The Defcndants were tried separately on the following dates:

       Dcfcndant Cobbiiis:            .August 17 lhrough August 26,2009
       Defendant Davidson:            October 10 through October 30, 2009
       Defcndan t Thomas:             December 1 through December 10,2009

       Ilcfendant Lemaricus Davidson was sentenced to death by his jury for the murders of
both Christian and Newsoin. Defendant George Tl~omas sentenced to life without the
                                                           was
possibility of parole for the murders of both Christian and Newsoln by his jury. Defendant
Letalvis C:obhins was sentenced by his jury to life without the possibility of parole for the
murder of Christian. Defendant Vanessa Coleman, who is not a party to this motion,
received an effective sentence of fifty-three years for faditation of the first degree murder
of Christjan, as well as for her other convictions. Her trial was held from May 3 through
May IO,20t 0.

        At thc sentencing heal-ings on the Defendants' non-capital convictions, former Judge
Baumgartner co~nmented length on his \lienJ of the evidence presented during each of the
                            at
trials in the caul-se of his discussion of the appropriateness of applying certain statutory
aggravating and mitigating circurnstanccs to the non-capital sentencing decisions.
Subsequently, on March 10, 201 1, he pled guilty to one count of official misconduct and
resigned fsonAl bench that same day. At that point, the Defendants' motions for new trial
                the
had not yet been heard. Subsequently, Senior Judge Jon Ke11-y Blackwood was designated
by the suprclne court to hear the Defendants' motions for new trial and perform all other
duties required of a trial judge on thcsc cases.

       On June 9,201 1 , a hearing was held 011 the motion for new trial filed by counscl for
Defendant Cobbins. At that hearing, Senior Judgc Blackwood stated that he believed he
could "procced with the inotion for a new trial."

         Senior Judge Blackwood then proceeded to discuss, based upon his review of the
record in this case, the extent he believed that witness credibility had been a factor. Hc then
conc;luded that while witness credibility "play[edl a part in every crimii~al  trial," there was
"ample other physical evidence in the record" and "ample other testimony in the record" such
that he could discharge his responsibility as thirteenth juror in the case. Senior Judge
Blackwood then announced that he "accept[cdl and approve[d] the verdict of the jury as the
 13"' juror." However, he announced that he would not enter an order denying Defcndant
Cobbins' motion for new trial until defense counsel in that case and the other cases had an
opportunity to amend their motions for new trial and present argument at a hearing on the
structural error issue that had been raised by counsel for Defendant Cobbins in an
amendment to his nlotion for new trial filed on the morning of the June 9, 201 1 hearing.

        Counsel for the Defendants subsequently filed amended rnotio~lsfor new trials,
asserting both the structural error and thisteenth juror arguments. At the conclusion of the
hearing on the amended motions, Senior Judgc Blackwood granted all four Defendants new
trials based both upon his stl-uctural error finding and his collclusion that he could not act as
thirteenth juror in this case. In his findings of facts and conclusions of law, entered
following the hearing, Senior Judge Rlackwood concluded that former Judgc Baumgartner
had not acted as thirteenth juror as to thc trials and that they "were beset by significant
credibility concerns segarding both cci-tain witnesses and the trial judge." The order stated
that while tlie court "had previously determined that it was able to serve as thirteenth juror
in Mr. Cobbins' case, . . . any order denying Mr. Cobbins' motion for new tiial relative to the
thirteenth juror issue [was] hereby withdrawn."

       Defendant Coleman is not a party to this motion. The State did not seek to appcal the
granting of a new trial as to Coleman. In its Rule 10 application, the State asserts that
cc[b]ccause thirteenth-juror rule was already satisfied prior to [Senior] Judge Blackwood's
            the
designation to hear these cases, Judge Blackwood exceeded his authority to vacate the juries'
verdicts under the thirteenth-juror rule." Finally, citing to State v. McKim, 21 5 S.W.3d 781,
792 (Tenn. 2007), the State argues that without a n extraordinary appeal in these cases, it will
"lose a right or interest that may never be recaptured," because if the Defendants are retried,
the challenge by the State to the order granting the new trials will have become moot. We
will consider these claims.

        Ii~itially,we note that our decision in this order pertaining to the State's Rule 10
application can neither affirm nor reverse the trial court's grounds for granting new trials.
Furthermore, if the State's application to appeal were granted, only two possible results could
occur in each case following briefing and oral arguments. Either the trial judge's order
granting a new trial would be affirmed on at least one of the grounds (affirmance of the order
would not require agreement with the trial court on both grounds) and new trials for each
Defendant would be held, probably many months after they are currently scheduled; or, this
court would reverse the trial court's order granting new trials, and then the trial court would
have to rulc on the remaining grounds for new trial asserted by Defendaiits Cobbins,
Davidson, and Thomas. The results of the hearings on the remaining grounds for new tiial
could result in the trial court again granting a new trial to one or more of the three nan~ed
Defendants, or if all the motions for new trial were denied, then the Defendants would be
entitled to appeal their convictions and sentences a second round of appeals. Meanwhile
Defendant Colen~an's     new trial would have been held, and, if she is convicted again, her
appeal from those convictions could be well on the way toward final disposition. We
mention this sceiiaiio not to state what we feel should or would occur, but only to point out
some of the considerations made when contemplating judicial efficiency. Wc next will
review the circumstances under which the Statc's Rule 10 application inay be granted.

        First, we notc the court rulcs which arc applicable to our considcration.

        Rule 33(d) of the Tennessee Rules o f Criminal Procedure provides that "[tlhe trial
court may grant a ncw trial following a verdict of guilty if it disagrees with the jury about the
weight of the cvidence." In State v. Carter, 896 S.W.2d 1 19, 122 (Tenn. 1995), the supreme
court interpreted this rule as "impos[ing] upon a trial court judge the mandatory duty to serve
as the thirteenth juror in every criminal case," explaining that "approval by the trial judge of
the jury's verdict as the thirteenth juror is a necessary prerequisite to imposition of a valid
judgment." Id. When the same judge who presided over the trial overrules a dcfci~sc       motion
for a new trial without comment, "an appellate court may presume that the trial judge I~as
served as the thirteenth juror and approve the july's verdict." Id. Such statements by the trial
judge must be "clear and unequivocal." State i7.   Moats, 906 S.W.2d 43 1,435 (Tenn. 1995).

         Rule 25(b)(l) of the Rules of Criminal Procedure states: "After a verdict of guilty,
anyjudge regularly presiding in or who is assigned to a court may complete the court's duties
if the judge before whom the trial began cannot proceed because of absence, death, sickness,
or other disability." Rule 25(b)(2) provides that "[tjhe successorjudge may grant a new trial
when that judge concludes that he or she cannot perform those duties because of the failure
to preside at the trial or for any other reason." This court has held that a s~iccessorjudge's
consideration, pursuant to Rule 25(b), of whether the duties of the o~igii~al with regard
                                                                             judge
to a motion for new trial can be met in a pai-ticular case "must ii~clude assessmel~t his
                                                                          an             of
or her ability to act as a thirteenth juror, i~lcluding
                                                      witness credibility." State v. Nail, 963
S.W.2d 761,765 (Tenn. Crim. App. 1997): see also State v. Biggs, 21 8 S.W.3d 643,653-54
(Tenn. Crirn. App. 2006); State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000).
This assessment in tuin requires the successor judge to deternine "the extent to which
witness credibility was a factor in thc case and the extent to which he [or she] I~adsufficient
knowledge or records before him [or her] in order to decide whether the credible evidence,
as vizwed by the judge, adequately supported the verdict." Nail, 963 S.W.2d at 766; see also
Biags, 2 18 S.W.3d at 654; Brown, 53 S.W.3d at 275. Ifthese detenninations cannot be made
by the successor judge, then the verdict cannot be approved and a new trial must be granted.
s e e Big;=, 21 8 S.W.3d at 654; Brown, 53 S.W.3d at 275;    m,    963 S.W.2d at 766.

        This court has held that the State niay attempt to appeal, when the trial court grants
a new trial to a convicted defendant, by utilizing Taincssee Rule of Appellate Procedure 10.
State v. P e w , 740 S.W.2d 723, 724 (Tenn. Crim. App. 1987). However, it is obvious that
the situation must comport with the requirements of Rnle 10. As per its specific provisions,
that rule is applicable only in two situations:

        1 . If the lower court has so far departed from the accepted and usual course
        of judicial proceedings as to require immediate review, or

        2 . If iiecessaiy for completc determination of the actjoil on appeal as
        otherwise provided in these rules.

 Tent]. R. App. P. 10(a).

       As to the first situation, our supreme court in State v. Willourhby, 594 S.W.2d 388
 (Tenn. 1980), listed six conditions that would niake a Rule 10 extraordinary appeal
 appropriate. These conditions, along with our conclusion as to their applicability to the Rule
 10 applicatiot~before us, are set forth as follows:
       1 & 2. Where the rulirlg of the court below represents a fundamental
       illegality or where theucriolz ofthe trial Judgewas without legal authority.

        Wc conclude that the trial court's granting of the motions for new trial on the basis
of (a) inability to act as thirteenth juror as the successor judge and (b) fundamental structural
error cannot bc said to be a fundamental illegality or be without legal authority. In other
words, the trial judge has the authority and legal ability to grant a new trial on either ground.

       3 & 4. Where the ruling constitutes a failure to proceed according to the
       essential requirements of the law or where the action of the trial judge
       constituted apluiri andpnlpuble abase of discretion.

         Likewise, we cannot conclude that the trial court acted with a "plain and palpable"
abuse of ils discretion. The record itself bears out this conclusion. Further, the record in this
Rule I0 application does not reflect that the trial court failed to "proceed according to the
essential requircnlents of the law." Thc Statc was allowed to be heard on all arguments
raised by the Defendants. We do note that, in the motion for new trial hearing, the Statc
never argued that former Judge Baumgartner satisfied the requirement to act as thirteenth
juror during the sentencing hearings of the Defendants, a principal argument before this
Court in its Rule 10 application. While we decline to conclude that this specific argument
 is waived because of a failure to present it at the appropriate time in the trial court, it is
significant in consideration of whether these two conditions, and the final two conditions
 listed below, apply in this case.

       5 & 6. Where the ruling is tantamount to the denial of either party of a
       day in court or where either party has lost a right or interest that may
       never be I-ecaptured.

        As stated previously, the State was allowed to fully present any arguments it wished
to provide at the hearing on the motion for new trial. The ruling by the trial c o u ~does not
                                                                                        t
bar the State from prosecuting any of the t h e e Defendants for the cases which are the subject
of the Rule 10 application.

       ,Arguably the only "light or interest" lost by the State is the "right" to have an
appellate court affirm all of the convictions rind sentences. Ilowever, as previously stated,
even if this Rule 10 application is granted, this Couit would not be reviewing all of the issues
regarding the convictions and sentences. The result of an extraordinary appeal could only
be either ( I ) new trials as currently ordered, or (2) filrther appeals by the Defendants on the
remaining issues (or possibly arzotlzer application by the State to appeal if the trial court
granted any of tlie Defendant$ a new trial on another ground).

       As to the second situation when Rule 10(a) is applicable, tlie Advisory Commission
Comments to Rule 10 state in part, "The circunlstances in which review is available under
[Rule 101, howcver, are very rial-rowly circutnscribed to those situations. . . as may be
necessary to permit complete appellate review on a fater appeal." (emphasis added) We
interpret the n ~ l e in light of these comments, to mean that a Rule 10 appeal is applicable
                      ,
under 10(a)(2) when a legal issue arises while criminal proceedings are pending prior to a
judgment being entered, when there is the possibility of a later direct appeal. Therefore it
would not apply to the situation, as exists here, where the trials were completed, judginents
were entered, but new tiials were ordered post vcsdict.

        The fact that thc Statc did not prevail in the motion for new trial, standing alone, does
not authorize tlie granting of an extraordinary appcal to review tlie trial court's action. If it
did, then the Tennessee Rules of Appellate Procedure would grant thc Statc an appeal as of
right pursuant to Rule 3(c).

       We have thoroughly seviewed the documents appended to the State's application.
Defendant Coleman was granted a new trial for tlie same reasons that Defendants Cobbins,
Davidson, and Thomas were granted new trials. As previously stated, the State explicitly
chose not to seek appellate review as to Defendant Coleman's case. The only difference we
can detect in Defendant Coleman's case and those of the other three Defendants is thedegr-ee
of the problems that caused the trial court to render its ruling, not tlie existence o f the
problems.

       For reasons which we will explain, wc thercforc conclude that the State's application
for extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10 must be
denied. While not all of the factual situations leading us to this conclusion are listed below,
the most significant ones are as follows.

        First, the State and all Defendants entered into a stipulation that statements made by
various persons interviewed by Tennessee Bureau of Investigation ("TBI") agents are facts
deemed true (i1.1other words, not merely a stipulation as to what these witnesses would say
if called to testify). The State reserved objcctioll to some portions of the statements as to
relevancy and hearsay. As per the record available before us, the following facts in support
of the trial court's ruling exist as to tlzese proceedirtgs only.

        Tn this regard, we note that the poition of the TBI reports which were made public
records show that former Judge Baunigai-tner,starting well before tlie trials in these matters,
and continuing through them, was a heavy user of alcohol and legally and illegally obtained
narcotics and that his impairment was suspected by, among others, prosecutors, nurses, law
enforcemeilt officers, and court personnel.

        In addition, it is clear from the record before us that former Judgc Baumgartner
expIicitlyrcserved acting as thirteenth juror 01.1 Defendant Davidson's convictions of tlie first
degree murders of Christian and Newsom, and as to the resulting death sentences imposed
by the jury as to each victim. During Defendant Davidson's sentencing hearing on the non-
capital offenses, former Judge Raumgal-tner stated:

               You are - Mr. Davidson, you are not so~nebody sl~ould on the
                                                                 that         be
       street with the rest ofus. You should never, evcr, ever be on the street with the
       rest of us. The jury IIRS detem~inedthat you're guilty beyond a reasonable
       doubt of the first-degree murder of thcse two young people. They've
       detern~ined the appropriate sentence is death. I think- I have a motion for
                    that
       a new trial to go, so I m going lo resclvc expressing my opinion on that until
                              '
       we have a motion for new trial. But, in my judgment, there is no sentence
       great enough to punish you for thc conduct that you've been convicted of.

        Jn view of the legal authorities and the reasoning which we have set out, wc conclude
that this is not a case in which a Rulc 10 appeal is appropliate. By this order, we neither
affirnl nor deny the tulings of the successor trial court but, instead, conclude that the Rule
10 application of thc State should bc denied. Accordingly, for all of the reasons set forth
above, the application for an extl-aordinary appeal is DENIED. Costs on appeal are taxed to
the State of Tennessee.




                                             ALAN E. GLENN, JUDGE




                                             TI-TOMAS T. WOODALL, JUDGE




                                             Dissent by ROBERT W. WEDEMEYER, JUDGE
        TN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                     AT KNOXVILLE

    STATE OF TENNESSEE V. LBTALVIS DARNELL COBBINS,
   LEMAHICUS DEVALL DAVIDSON, and GEORGE GEOVONNI
                       THOMAS

                             Criminal Court for Knox Co~lnty
                             Nos. 86216A, 86216B & 86216C

                                                                                Clerk of the Court




ROBERT WEDEMEYER, dissenting.
     W.        .I.,

        Ilpon consideration of the arguments, transcripts, and record presently before this
Court, I respecthlly disagree with my col1eagues' conclusion that the State's Rule 10
application for extraordinary appeal should bc denied. In my view, the State set forth valid
arguments on both the thirteenth juror issue and structural error issue to warrant this Court
to exercise its disclaetionand grant extraordinary review pursuant to Rule 10 of the Rules of
Appellate Procedure.

                                    A. Thirteenth .Turor

       In its Rule 10 application, the State presents a compelling argument, supported by trial
transcripts, that Judge Raumgartner fulfilled his thirteenth juror obligation through
statements at each Defendant's respective post-trial hearings. The State contends that,
because Judge Raumgartner fulfilled the thirteenth juror requirement, Judge Blackwood had
ncither the legal authority nor the legal obligation to act as the thirteenth juror in any of the
three cases. The State concludes that Judge Blackwood's decision to grant a new trial for
each of the three Defendants, based on the thirteenth juror rule, was without legal authority
and, therefore, presents a valid basis for granting the Rule 10 application for extraordinary
appeal. See Stare v. McKim, 2 15 S.W.3d 78 I , 79 1 (Tenn. 2007) (citing State v. Willoughby,
594 S.W.2d 388, 392 (Tenn. 1980) ('"This Court has stated that a Rule 10 extraordinary
appeal will lie whenever the prerequisites for common law certiorari exist: . . . the trial
court's action is without legal authority . . . ."). TfJudge Baurngartner did indeed satis6 his
thirteenth juror duty, Judge Rlackwood then would have "so far departed from the accepted
and usual course ofjudicial proceedings as to require immediate review." Tenn. R. App. P.
10(a)(l). Because the State presents a valid argument, complete with supporting documents,
on the issue, I believe it has satisfied the lhreshold showing to warrant filrther proceedings.
Therefore, I ~vould  grant the State's Rule 10 application for extraordinary review.

                                    B. Structural E r r o r

          After thorough research on this issue, I have concluded that the appropriate legal
standard for determining whether there is structural error in a trial is unclear. Further, it is
unclear whether the legal reasoning and analysis Judge Blackwood applied in his decision
to grant a new trial to each of the three Defendants, based on structural error, constituted the
appropriate standard. If the appropriate standard requires, as the State argues, that the
Defendants demonstrate a connection between Judge l3aurngartnerYsmisconduct and his
decisions at trial, then .Tuclge Blackwood applied an incorrect standard, and the Deferldants
have failed to show that they did not receive fair trials. See Thurmond v. McKee, No. 1 :06-
cv-580, 2009 WL 929001, at *18 (W.D. Mich. Apr. 2, 2009) (". . . even assuming the
existence of some due-process principle at work in the present case, that principle would
certainly require evidence that the judge's personal problems have had some substantial
impact on the fairness of a criminal defendanl's trial."). At this point in the appeals process,
none of the Defendants have demonstrated any specific instances of bias or unfairness by
Judge Baumgartner in their respective trials. Therefore, I would grant the Rule 10
application for extraordinary appeal, ordering that all parties hlly brief and orally argue the
issue, in order for this Court to properly determine a resolution. Tenn. R. App. P. 10(a)
("[Aln application for extraordinary appeal lies from an interlocutory order o f a lower courl
. . . [i]f necessary for complete determination of the action on appeal . . . .").
                                         Conclusion

       Accordingly, for the reasons set forth above, 1 conclude that the State's Rulc 10
application for an extraordinary appeal should be GRANTED.
