         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs January 6, 2004

             STATE OF TENNESSEE v. RICKY GROVER AARON

                     Appeal from the Criminal Court for Davidson County
                             No. 99-D-2360 Walter Kurtz, Judge


                   No. M2002-02288-CCA-R3-CD - Filed December 13, 2004


THOMAS T. WOODALL, J., concurring.
          I concur with Judge Smith’s lead opinion; however, I am writing separately for two reasons.
First, I have reconsidered, and upon further reflection, retreat from my earlier position that sentences
found to be in violation of Blakely should be remanded for a new sentencing hearing in the trial
court. Until such time as there is clear authority for our courts to deal with Blakely issues, whether
by case law or by statute, judicial economy and sentencing considerations, including uniformity of
application of sentencing factors, dictates that most sentences found to be in violation of Blakely
should be modified, if at all, by the appellate courts. Clearly, the appellate courts have been given
the authority to do so by the legislature. Tenn. Code Ann. § 40-35-401(c).

        Second, I want to express my concern and reservations of the waiver assertions argued by the
State and adopted by my esteemed colleague, Judge Hayes. Pre-Blakely, the status of the law in
Tennessee as established by our supreme court’s opinion in Graham v. State, 90 S.W.3d, 687 (Tenn.
2002), is clearly set forth in Judge Smith’s opinion.

        In the case sub judice (and in virtually every other case on direct appeal dealing with the
“Blakely issue”) the State asserts that “this issue is now waived for consideration in this case since
the defendant could have previously raised the issue under Apprendi, just as Mr. Blakely did, in the
trial court and on appeal to this Court in his appellate briefs.” Assuming that Mr. Aaron in this case
had argued in the trial court, under Apprendi, that no enhancement factor other than prior convictions
could be applied absent a jury finding, the trial court, and this Court (prior to the U.S. Supreme
Court’s opinion in Blakely) would have been obligated to reject that issue under Graham. In Holder
v. Tennessee Judicial Selection, 937 S.W.2d 877 (Tenn. 1996), our supreme court stated:

       We observe, however, that trial courts must follow the directives of superior courts,
       particularly when the superior court has given definite expression to its views in a
       case after careful consideration. [citations omitted]. Accordingly, inferior courts
       are not free to disregard, on the basis that the statement is obiter dictum, the
       pronouncement of a superior court when it speaks directly on the matter before it,
       particularly when the superior court seeks to give guidance to the bench and bar. To
       do otherwise invites chaos into the system of justice.

Holder, 937 S.W.2d at 881-82. (Emphasis in bold type added).
         Furthermore, it is necessary to note that the focal point of Blakely is the constitutional right
to jury trial, and not the strength of evidence of enhancement factors, other than that the proof must
be established beyond a reasonable doubt. There is no clear statutory authority in Tennessee for a
jury to determine the applicability of any enhancement factor. Therefore, if Mr. Aaron had prevailed
in raising the Apprendi issue in the trial court and/or on appeal, surely the remedy would not have
been to still have the trial court determine the existence of an enhancement factor, subject to the
hypothetical determination of whether a non-existent jury would have also found the same
enhancement factor beyond a reasonable doubt. The majority opinion in Blakely closed with the
following statement:

        The Framers would not have thought it too much to demand that, before depriving
        a man of three more years of his liberty, the State should suffer the modest
        inconvenience of submitting its accusation to “the unanimous suffrage of twelve of
        his equals and neighbors,” 4 Blackstone, Commentaries, at 343, rather than a lone
        employee of the State.

Blakely, 124 S.Ct. at 2543.

       The conclusion that Blakely errors in Tennessee are rarely, if ever, harmless error beyond a
reasonable doubt, is supported by case law.

        In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L. Ed. 2d 182 (1993), the issue
was whether a “constitutionally deficient reasonable-doubt instruction may be harmless error.” The
State conceded that the “reasonable doubt” instruction given by the trial court in this first degree
murder case was essentially identical to the same instruction held unconstitutional in Cage v.
Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L. Ed. 2d. 339 (1990) (per curiam). The Supreme Court
of Louisiana held that the erroneous instruction in Sullivan was harmless beyond a reasonable doubt,
and upheld the conviction. The United States Supreme Court thereafter granted certiorari. The
Supreme Court held that the constitutionally deficient instruction could not be harmless error. The
following quote from Sullivan is particularly pertinent to the situation in the case sub judice, where
no jury in Tennessee has ever made (and under present statutory procedure arguably could never
make) the factual determination that an enhancement factor(s) exists:

        Consistent with the jury-trial guarantee, the question [Chapman v. California, 386
        U.S. 18, 87 S.Ct. 824, 17 L. Ed. 2d 705 (1967)] instructs the reviewing court to
        consider is not what effect the constitutional error might generally be expected to
        have upon a reasonable jury, but rather what effect it had upon the guilty verdict in
        the case at hand. See Chapman, supra, 386 U.S., at 24, 87 S.Ct., at 828 (analyzing
        effect of error on “verdict obtained”). Harmless-error review looks, we have said, to
        the basis on which “the jury actually rested its verdict.” Yates v. Evatt, 500 U.S. 391,
        404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (emphasis added). The inquiry,
        in other words, is not whether, in a trial that occurred without the error, a guilty
        verdict would surely have been rendered, but whether the guilty verdict actually


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       rendered in this trial was surely unattributable to the error. That must be so, because
       to hypothesize a guilty verdict that was never in fact rendered--no matter how
       inescapable the findings to support that verdict might be--would violate the jury-trial
       guarantee. See Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3105, 92 L.Ed.2d
       460 (1986); id., at 593, 106 S.Ct., at 3114 (BLACKMUN, J., dissenting); Pope v.
       Illinois, 481 U.S. 497, 509- 510, 107 S.Ct. 1918, 1926, 95 L.Ed.2d 439 (1987)
       (STEVENS, J., dissenting).

               Once the proper role of an appellate court engaged in the Chapman inquiry
       is understood, the illogic of harmless-error review in the present case becomes
       evident. Since, for the reasons described above, there has been no jury verdict
       within the meaning of the Sixth Amendment, the entire premise of Chapman
       review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-
       doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt
       would have been rendered absent the constitutional error is utterly meaningless.
       There is no object, so to speak, upon which harmless-error scrutiny can operate. The
       most an appellate court can conclude is that a jury would surely have found
       petitioner guilty beyond a reasonable doubt--not that the jury’s actual finding
       of guilty beyond a reasonable doubt would surely not have been different absent
       the constitutional error. That is not enough. See Yates, supra, 500 U.S., at 413-
       414, 111 S.Ct., at 1898 (SCALIA, J., concurring in part and concurring in judgment).
       The Sixth Amendment requires more than appellate speculation about a
       hypothetical jury’s action, or else directed verdicts for the State would be
       sustainable on appeal; it requires an actual jury finding of guilty. See Bollenback
       v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946).

Sullivan v. Louisiana, 508 U.S. at 279-80, 113 S.Ct. at 2081-82. (Emphasis in bold type added).

       In summary, we are obligated to follow precedent clearly set forth by the Tennessee Supreme
Court, Holder, except where the holding of the Tennessee Supreme Court is in direct contravention
of a holding by the United States Supreme Court concerning a right under the United States
Constitution. See Terry v. State, 46 S.W.3d 147, 160 (Tenn. 2001); State v. Carruthers, 35 S.W.3d
516, 561 n. 45 (Tenn. 2000) (the Tennessee Supreme Court is not bound by any federal court
decisions other than those of the United States Supreme Court.)

          The appellant in the case sub judice raised the Apprendi issue in a very timely manner after
the Blakely decision was filed. The issue, therefore, should not be considered waived. To conclude
that, if error, it was harmless error beyond a reasonable doubt, requires accepting that a hypothetical
jury, which would have no clear statutory authority to determine anything more than guilt or
innocence, would have found the enhancement factors beyond a reasonable doubt. In other words,
the State argues that even if Defendant had not “waived” the issue and had been clairvoyant enough
to see how the Blakely decision would be decided before it was filed, he would be denied any remedy



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because the State of Tennessee had not provided the remedy: a procedure for jury determination of
the existence of enhancement factors.

       Respectfully, in light of Sullivan v. Louisiana, I am unable to accept this logic.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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