        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 3, 2015

                      STATE OF TENNESSEE v. SCOTT LEE

                    Appeal from the Criminal Court for Shelby County
                     No. 11-03839    James C. Beasley, Jr., Judge


                 No. W2014-00986-CCA-R3-CD - Filed June 25, 2015


CAMILLE R. MCMULLEN, J., concurring.

       I respectfully agree with the conclusion reached by the majority in this case.
Certainly, the better practice in all convicted felon in possession of a handgun cases is to
have a pre-trial written stipulation agreeing that at the time of the offense the defendant
had been previously convicted of a crime punishable by a term of imprisonment
exceeding one year. However, I write separately to emphasize that a formal stipulation to
a defendant’s status as a convicted felon is not necessary to establish the predicate felony.
The record shows that the Defendant orally requested the trial court to redact portions of
the indictment (aggravated robberies) in an effort to prevent the State from mentioning
the names and nature of his prior felonies. Significantly, he conceded that he was a
convicted felon based on those felonies and offered to submit another listed predicate
felony (theft) to the jury to satisfy the convicted-felon status element of the offense. The
Defendant’s request was summarily rejected by the State and the trial court.

        In United States v. Daniel, the Sixth Circuit noted that an “artless” stipulation does
not preclude the application of Old Chief v. United States, 519 U.S. 176 (1997). 134
F.3d 1259, 1261 (6th Cir. 1998) (requiring the trial court to accept a defendant’s
stipulation to his status as a convicted felon). The court reasoned that while “an
instruction would have been necessary to clarify that the defendant’s stipulation satisfied
the predicate offense of [the felon in possession statute],” the district court still abused its
discretion in rejecting the defendant’s offer. Id. (citing Old Chief, 519 U.S. at 176 n. 2
(1997)). Based on my reading of the record, the State and trial court erroneously
believed that the State was entitled to prove its case regardless of whether the Defendant
offered (formally or informally) to stipulate to his status as a convicted felon. The State
argued, and the trial court agreed, that the State was entitled to prove its case by evidence
of its own choice. However, this general rule does not apply when determining a
defendant’s legal status for purposes of the convicted felon in possession of a handgun
statute. Old Chief, 519 U.S. at 190. This being said, I concur with the majority only
because of the overwhelming evidence of guilt presented against the Defendant at trial.
Accordingly, any error in failing to accept the Defendant’s inartful stipulation was
harmless.



                                              _________________________________
                                              CAMILLE R. MCMULLEN, JUDGE
