        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 19, 2012

          STATE OF TENNESSEE v. MARCUS TERRELL CHURCH

                 Appeal from the Criminal Court for Davidson County
                    No. 2009A583     J. Randall Wyatt, Jr., Judge


                  No. M2011-01770-CCA-R3-CD - Filed June 10, 2013




J OHN E VERETT W ILLIAMS, J., concurring.


        I write separately to express my belief that in Pylant v. State, 263 S.W.3d 854, 871
n.26 (Tenn. 2008), the Tennessee Supreme Court indeed “repudiated”or rejected the de novo
standard for review of hearsay issues adopted by the Court of Criminal Appeals in State v.
Gilley, 297 S.W.3d 739, 759-60 (Tenn. Crim. App. 2008). The word “repudiate” means “to
reject as having no authority or binding force.” W EBSTER’S N EW U NIVERSAL U NABRIDGED
D ICTIONARY 1636 (2nd ed. 1996). When I first joined Judge Witt’s decision in Gilley, I
believed that we were setting forth a new and correct standard of review for hearsay issues
and that we were providing a clear first step for any such analysis in the trial court. I still
have nothing but respect for both Judge Witt’s reasoning and his conclusion in that case.

       After reading Pylant, however, I came to the conclusion that although our supreme
court was appreciative of our effort, it did not agree with the standard of review that we
adopted in Gilley. Try as I might, I can only read Pylant as clearly indicating that the
applicable standard of review governing hearsay issues is the traditional abuse of discretion
standard. In footnote twenty-six of Pylant, after discussing Judge Witt’s view that hearsay
issues are to be reviewed de novo, the Tennessee Supreme Court stated that “this court
continues to believe that questions concerning the admissibility of evidence are reviewed
under an abuse of discretion standard.” I find this language to be unambiguous; the de novo
standard of review set forth in Gilley has been considered and rejected by our supreme court.
Consequently, I believe that the Gilley standard has been rejected, and the case should be
accorded no authority or binding force- it has been “repudiated.”

      Over three years ago, Donald Paine, former President of the Tennessee Bar
Association and noted scholar of evidence, wrote in the Tennessee Bar Journal: “The
Tennessee Supreme Court continues to insist that a trial judge’s hearsay rulings will be
affirmed absent an abuse of discretion. But Tennessee Court of Criminal Appeals Judge
Curwood Witt disagrees and I agree with his disagreement.” Donald F. Paine, Appellate
Review of Hearsay Issues: The Trial of Kyle Gilley, 46 T ENN. B.J. 37 (2010). After
discussing the debate in the context of the Gilley case itself, Donald Paine ultimately
concluded: “Perhaps the [s]upreme [c]ourt will reexamine its scope of review jurisprudence.
Time will tell.” However, to date, our supreme court has not reexamined its position. These
statements offered by this highly regarded evidence expert recognize that whatever the
original merits of our position, our supreme court has rejected it. The issue for both Judge
Woodall and I, is no longer a matter of which side has the more compelling legal argument.
Rather, it is now simply a matter of showing proper deference to our higher court’s ruling.
I believe we simply lack the authority to step away from the Tennessee Supreme Court’s
expressly stated position on this issue.

       In Presiding Judge Tipton’s concurring opinion in this case, he observes that the
Pylant court concluded footnote twenty-six by stating, “we note that, in this instance, the
post-conviction court committed error under either standard of review.” Pylant, 263 S.W.3d
at 871 n.26. Presiding Judge Tipton construes this language as leaving the door open for this
court to continue to apply the de novo standard, reasoning that, “[i]f Gilley’s analysis is
wrong, the [s]upreme [c]ourt would not have used it.” However, I do not read that same
language as applying the Gilley standard, nor do I interpret it as condoning in any way the
continued use of the de novo standard of review in matters of hearsay. I cannot convert what
I believe was an attempt by the Tennessee Supreme Court to express some level of
appreciation for all of the considerable thinking and effort that was put into Gilley into a
license to ignore Pylant.

        In light of the ongoing disagreement amongst the members of this court over the
continued viability of Gilley in the wake of Pylant, this issue appears to me to be ripe for
further supreme court review. Appellate claims concerning trial courts’ rulings on matters
of hearsay arise frequently, and, at this point, the diverging positions of most of the members
of this court have been expressed. Recently, in State v. DeAngelo M. Moody, No.
M2011-01930-CCA-R3-CD (Tenn. Crim. App. May 9, 2013), a panel of this court
acknowledged, in footnote five, that disagreement amongst certain panels of this court on this
issue was evident, and it noted the obvious tension between many of our decisions and
decisions that have been issued by the Tennessee Supreme Court. Judge Bivins, writing
separately in two cases, has indicated that he feels compelled to follow the de novo standard
set forth in Gilley, notwithstanding the language appearing in Pylant because he interprets
that language as merely calling the Gilley decision into question, not overruling it. See Willie
Perry, Jr. v. State, No. W2011-01818-CCA-R3-PC (Tenn. Crim. App. July 11, 2012)
(Bivins, J., concurring); State v. Martin Dean Gibbs, No. M2011-00740-CCA-R3-CD (Tenn.
Crim. App. June 27, 2012) (Bivins, J., concurring). In State v. Alexis Mason and Terrance
Harris, No. W2010-02321-CCA-R3-CD (Tenn. Crim. App. Mar. 27, 2013), I concurred in
results only because I felt that the majority’s opinion gave lip service to the abuse of
discretion standard set forth in Pylant but decided the case based upon the de novo standard
set forth in Gilley. Perhaps most troubling to me, there are several opinions in which panels
of this court discuss only the Gilley standard and fail to acknowledge the abuse of discretion
standard set forth in Pylant entirely. See,, e.g., State v. James L. Dowell III, No.
M2011-02096-CCA-R3-CD (Tenn. Crim. App. Sept. 11, 2012); State v. Brandon Ackerman,
No. M2010-01979-CCA-R3-CD (Tenn. Crim. App. July 13, 2012). The divisions in our
court on this issue appear to be increasing with the passage of time rather than diminishing.

       In all of the cases that I have participated in to date, neither standard would have
altered the result. However, I fear that without additional guidance, this court will continue
to follow a perilous course, creating the appearance (to some minds, at least) that the
Tennessee Supreme Court has promulgated a standard of review (as it is empowered to do),
and the Tennessee Court of Criminal Appeals has simply ignored it. The mere perception
that our courts are at odds is detrimental. I believe that a clear indication from above one
way or another is needed.




                                                   ________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE
