         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  November 29, 2005 Session

               STATE OF TENNESSEE v. KEVIN HUNTER BIGGS

                 Direct Appeal from the Criminal Court for Hamilton County
                    No. 244715 Jon Kerry Blackwood, Judge, Sitting by
                                  Designation for the Honorable Stephen M. Bevil



                     No. E2005-01402-CCA-R3-CD - Filed August 25, 2006


THOMAS T. WOODALL, J., dissenting.

         I respectfully dissent from the result reached by the majority, and would affirm the judgment
of the trial court. In 1978, based upon the United States Supreme Court’s decisions in Burks v.
United States, 437 U.S. 1, 98 S. Ct. 2141 (1978), and Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151
(1978), the Tennessee Supreme Court held in State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
that the thirteenth juror rule in Tennessee must be abolished, because it violated principles of double
jeopardy.

       In 1985, in the case of State v. Johnson, 692 S.W.2d 412 (Tenn. 1985), our Supreme Court
noted the following:

               A brief review of the history of the rule and the action of the courts below is
       necessary to place this issue in its proper context. Prior to 1978, the rule that a trial
       judge in a criminal case must function as a thirteenth juror and weigh the evidence
       before approving a verdict of guilty was very well established. The rule was stated
       in Manning v. State, 155 Tenn. 266, 284, 292 S.W. 451, 457 (1927), as follows:

               Each party is guaranteed a fair and impartial trial, and under our
               system the trial judge, upon motion for new trial, is required to review
               the record and the evidence. He alone, after the jury has convicted,
               can give the accused the benefit of the reasonable doubt that always
               attends the prisoner in a criminal case until final action of the trial
               court, and on such review it is the duty of the trial judge to consider
               the weight of the evidence and determine whether or not it establishes
               the prisoner’s guilt beyond a reasonable doubt.

       The following summarization of the rule is often quoted in Tennessee cases:
               [U]nder our system, (a) the trial court exercises the function of a
               thirteenth juror; (b) that he must weigh the evidence, pass upon the
               issues, and decide whether they are supported by the evidence; (c)
               where he fails to do this the case will be reversed and remanded for
               a new trial; and (d) “that he must be satisfied, as well as the jury”
               (meaning, in a criminal case, satisfied that the defendant is guilty).

       Curran v. State, 157 Tenn. 7, 13, 4 S.W.2d 957, 958 (1928), citing, Durant v. State,
       Manuscript Opinion filed May 2, 1925.

Johnson, 692 S.W.2d at 412-13.

        Despite having the opportunity in Johnson, to reinstate the thirteenth juror rule as it had
existed prior to Cabbage, our Supreme Court declined to do so. Specifically, the court held,

               As the Court of Criminal Appeals recognized, our abandonment of the
       thirteenth juror rule in Cabbage was unnecessary from a constitutional standpoint.
       We are free to resurrect the rule without fear of violating principles of double
       jeopardy. Nevertheless, we are of the opinion that the rule should not be reinstated
       as a part of Tennessee criminal procedure.

Johnson, 692 S.W.2d at 413.

        Again, in the 1990 opinion in State v. Adkins, 786 S.W.2d 642 (Tenn. 1990), the Tennessee
Supreme Court specifically declined to reinstate the abolished thirteenth juror rule and in doing so
reiterated the holding in Johnson. Adkins, 786 S.W.2d at 645.

       The thirteenth juror rule, abolished in Cabbage and again rejected by the Supreme Court in
1985 (Johnson) and in 1990 (Adkins) was a part of the common law prior to its demise. In 1991, the
Tennessee Supreme Court again reconsidered the thirteenth juror rule. Following a favorable
recommendation from the Advisory Commission on the Tennessee Rules of Criminal Procedure, the
Court promulgated what is now Rule 33(d) of the Tennessee Rules of Criminal Procedure. State v.
Carter, 896 S.W.2d 119, 121-22 (Tenn. 1995).

        The specifics of the new thirteenth juror rule are contained in one sentence: “The trial court
may grant a new trial following a verdict of guilt if it disagrees with the jury about the weight of the
evidence.” Tenn. R. Crim. P. Rule 33(d). At first blush, it might appear that the thirteenth juror rule
as stated in Rule 33(d) of the Tennessee Rules of Criminal Procedure is much more limited in its
application than the common law rule abolished in Cabbage.

        The Court of Criminal Appeals in the Carter case had held that the thirteenth juror rule is
discretionary. However, in rejecting this interpretation, the Supreme Court quoted from the
Advisory Commission Comment to present Rule 33(d):


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        New Rule [(33(d)] changes the holdings in State v. Johnson, 692 S.W.2d 412 (Tenn.
        1985), and State v. Adkins, 786 S.W.2d 642 (Tenn. 1990), which had abolished the
        thirteenth juror rule in criminal cases. The rule is restored by the amendment [to
        Rule 33 of the Tennessee Rules of Criminal Procedure.] (emphasis added).

Carter, 896 S.W.2d at 122.

        The Supreme Court held that:

        As we view it, the Commission Comment plainly states that the thirteenth juror rule
        has been “restored” by enactment of Tenn. R. Crim. P. [33(d)]. “Restoration” of the
        thirteenth juror rule, as we interpret the term, re-establishes the rule as it existed at
        common law. [citation omitted]. Thus, contrary to the finding of the Court of
        Criminal Appeals, we can only conclude that Rule [33(d)] imposes upon a trial court
        judge the mandatory duty to serve as the thirteenth juror in every criminal case, and
        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. [citations omitted]
        (emphasis added).

Carter, 896 S.W.2d at 122.

         Nevertheless, as noted by the Supreme Court in Carter, at common law, the appellate court
presumed that the trial court performed its function as the thirteenth juror, “unless, on the record, the
trial judge expressed disagreement with the verdict or dissatisfaction with the weight of the evidence,
or where the trial court absolved itself of its responsibility to act as the thirteenth juror.” Id. at 121.

        One circumstance which allows this presumption, although never designated as the only
method by which a reviewing court can presume the trial court performed its function as the
thirteenth juror, is when the trial court “simply overrules a motion for new trial.” Id. at 122.

        There is no designated point at which the trial court must comply with the requirements of
the thirteenth juror rule, except that it must be after the verdict and prior to imposition of a valid
judgment. As noted in the majority’s opinion in the case sub judice, after the jury rendered its
verdict convicting Defendant of the lesser included offense of aggravated sexual battery, the trial
judge stated:

        Mr. [Defendant], based on the finding of the jury that you are guilty of the lesser-
        included [sic] offense of aggravated sexual battery, it is the judgment of the Court
        that you are guilty of aggravated sexual battery. I will refer this for a sentencing, set
        a sentencing another day and refer it to the probation office for a presentence
        investigation. You may be seated. (emphasis added).




                                                   -3-
       Under the common law, restored by Rule 33(d) of the Tennessee Rules of Criminal
Procedure, the judge who presided over the trial did not express disagreement or dissatisfaction with
the verdict or the weight of the evidence to support it, and did not absolve himself of his
responsibility to act as thirteenth juror.

        In fact, the only conclusion that can be drawn from the presiding judge’s comments, after the
verdict was announced, is that he approved the verdict as the thirteenth juror.

       Accordingly, I would affirm the judgment of the trial court.

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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