        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 5, 2012

                 STATE OF TENNESSEE v. DWIGHT MILLER

                  Appeal from the Circuit Court for Haywood County
                         No. 2401    L. Terry Lafferty, Judge




               No. W2011-00447-CCA-R3-CD - Filed January 28, 2013


T HOMAS T. W OODALL, J., dissenting.

       I respectfully dissent. Specifically, I disagree with the majority’s conclusions that in
Miller I this court reversed the conviction solely “because of the manner in which the trial
court admonished Blackwell [the unavailable witness] in front of the jury, [Blackwell’s]
explanation that her improved memory resulted from the threat of jail, and her testimony that
she had been assaulted after she spoke with the TBI together with her attribution of the
assault to her involvement in the case.”

        In Miller I, it was the process utilized by the trial judge (who was not the same judge
who presided over the second trial which is the subject of the case sub judice) in order to get
the witness, Ms. Blackwell, to testify in accordance with what the trial judge believed to be
the truth that resulted in reversible error. That process, of course, was to order the witness
to be incarcerated until she decided to testify consistently with what the trial court believed
to be the truth. The trial court’s statement to the witness, already quoted in the majority
opinion, merits repetition here:

       I’m going to let you go into the custody of the Sheriff and see if your memory
       gets any better. For purposes of this record, I don’t find the fact that you say
       you don’t remember to be credible. . . . And so, you go with the Sheriff, and
       when you feel like you can remember and you can come back in here and
       testify truthfully before this jury, you can let me know. Until then you can
       remain in the custody of the Sheriff.

Miller I at *10 (emphasis added).

        This court in Miller I correctly set forth the appropriate steps that could have been
utilized during the first trial:
         The Rules of Evidence provide methods for addressing situations in which
         a witness is uncooperative. As was done in this case, the court may, upon
         request of the party who called the witness, declare the witness hostile,
         thereby giving the examining party the ability to employ leading questions.
         Tenn. R. Evid. 611(c). In the event a witness claims memory loss, the
         witness’s prior inconsistent statements are admissible for impeachment
         purposes under Tennessee Rule of Evidence 613(b). See, e.g., State v.
         Kendricks, 947 S.W.2d 875, 882 (Tenn. 1996) (witness’s prior statement
         about relevant events admissible as prior inconsistent statement where
         witness at trial claimed to have no memory of events). Further, a
         memorandum or other record about matters of which a witness once had
         knowledge but is unable to recollect sufficiently to testify fully and
         accurately at trial may be admitted if it meets certain qualifications. Tenn.
         R. Evid. 803(5).

Miller I at *11.

       Just after setting forth the proper procedures, the court in Miller I noted the following:

         Further, a trial court may admonish a witness suspected of untruthfulness
         of the significance of lying under oath. State v. Schafer, 973 S.W.2d 269,
         278 (Tenn. Crim. App. 1997). However, a trial court may not declare its
         belief the witness is being untruthful and threaten the witness with
         prosecution for perjury to such a degree that the witness changes his
         testimony to the detriment of the defendant. Schafer, 973 S.W.2d at 278.
         When the trial court’s actions exceed the bounds of an appropriate warning,
         “the defendant’s right to a fair trial is compromised and outcome of the trial
         brought into question.” Schafer, 973 S.W.2d at 278.

Miller I at *12.

        Finally, in Miller I, this court clearly stated that “the entire procedure was prejudicial
to the judicial process.” Id.

        It was error to admit any testimony of Ms. Blackwell which was given at the first trial
after she was incarcerated by order of the trial judge for not testifying as to what the trial
judge believed to be the truth. The witness’s testimony under these circumstances in the first
trial led to reversible error. The fact that the jury in the second trial was unaware that her
testimony was the direct result of being incarcerated by the trial judge does not “clean up”
or otherwise negate the prejudice to the judicial process caused by “the entire procedure”
utilized by the trial judge in the first trial. Time does not, and cannot, eliminate this prejudice
to the judicial process. I would reverse and remand for a new trial wherein the prior

                                                -2-
testimony of Katherine Blackwell, given at the first trial after her incarceration by the trial
judge, would not be admissible.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                              -3-
