         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    January 10, 2006 Session

                   STATE OF TENNESSEE v. JAMIE L. BAILEY

                     Direct Appeal from the Circuit Court for Dyer County
                               No. C02-73    Lee Moore, Judge



                      No. W2005-01629-CCA-R3-CD - Filed May 17, 2006


The trial court found that the defendant, Jamie L. Bailey, was competent to stand trial and he pled
guilty to three counts of first degree murder and was sentenced to three concurrent life sentences,
reserving as a certified question of law whether the trial court was correct in its competency
determination. He then filed a pro se motion to withdraw his pleas of guilty, and defense counsel
filed a notice of appeal as to the certified question. Pending the outcome of his appeal, the trial court
held in abeyance the pro se motion to withdraw the pleas of guilty. Before considering the appeal
as to the certified question, this court remanded the matter to the trial court for a determination as
to the motion to withdraw the pleas of guilty. Following the remand, the defendant withdrew his
motion to withdraw the pleas of guilty, and this court then considered his appeal as to the certified
question. Following our review, we conclude that this appeal does not properly present a certified
question because, even if resolved in favor of the defendant, it would result only in remand to the
trial court for further determinations. Accordingly, this court does not have jurisdiction as to the
matter and the appeal is dismissed.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Jim W. Horner, District Public Defender, and H. Tod Taylor and Patrick R. McGill, Assistant Public
Defenders, for the appellant, Jamie L. Bailey.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                                FACTS
         The first witness at the defendant’s competency hearing was Dr. Rokeya Farooque, who
testified that she was an assistant professor of the Department of Psychiatry at MeHarry Medical
College and a forensic psychiatrist at the Middle Tennessee Mental Health Institute Forensic Service.
She said that she had examined the defendant at Middle Tennessee Mental Health Institute after he
was admitted on January 15, 2002, for in-patient forensic evaluation. Dr. Farooque described their
considerations in determining whether a defendant is competent to stand trial:

              We try to see that he knows what kind of charges he has or that he knows the
       consequences of that charge is [sic]; what can happen if he was found guilty; how
       much of the time that he can serve and also . . . does he understand about the court
       procedures. He understand[s] the court participants, the roles, who does what in the
       courtroom. He knows the behavior in the courtroom. Also, we look at the plea
       bargain process so that he understand[s] that or not. We look at all of those things.

       She explained that the defendant had no memory of the offenses:

              My findings [are] that as because of this traumatic injury to his frontal lobe
       he doesn’t have any recollection of the incidents that he [is] charged with. So as
       because of that total lack of memory, total amnesia of the incidents in question, my
       opinion is that he doesn’t lack cooperating with his lawyer to prepare his own
       defense.

       She described the injuries sustained by the defendant as the result of his self-inflicted gunshot
wound:

               The CT scan of brain that we did . . . He had many CT scans that were done
       right after he had that trauma. That he pulled the trigger inside his hard pallet and
       that went through that side temple. That’s how his brain was injured in the front.
       And he was taken to emergency room and after that they did the bifrontal-lobectomy.
       And the CT scan also shows that – I can show you the CT scan. I brought it with me.
       – that there is the volume loss in the frontal lobe.

              And we all have our frontal lobe. And they are like three areas in the frontal
       lobe. And here’s one the dorsal lateral frontal lobe.

               ....

                Those two parts of his frontal lobe [are] more damaged than his middle space
       of his frontal lobe. That is like, as I said, if he had that damage then he would being
       having [sic] problem with talking, speech and also with his motor movements. He
       doesn’t have that. So that’s why I think that he has two parts of his frontal lobe is
       damaged most than any problem than other space probably [sic].



                                                 -2-
       As a result of this injury, the defendant had “[l]ack of memory in that because of the
traumatic injury to his brain he has a lack of memory about surrounding that incident, how that
happened, when that happened and what happened because of that traumatic injury to his brain.”

        Her conclusion was that the defendant was competent to stand trial: “Though [the defendant]
is suffering from severe medical disorder with his bifrontal-lobectomy but he has understanding
about the court. He understands about the court procedure. He understands that he as [sic] to his
charges. He has those factual understanding of those.”

         On cross-examination, Dr. Farooque explained that the impairment to the defendant was that
he could not recall the incidents which resulted in his indictment: “And when we talk with him
today he doesn’t have any other problem except that memory of that incident in question. So that
is really unique in the case of [the defendant].” On redirect examination, Dr. Farooque said that the
defendant wished to review the evidence with his attorney.

         Dr. Samuel Craddock testified that he had a PhD in psychology and was the staff
psychologist for the Middle Tennessee Mental Health Institute. He conducted different examinations
on the defendant from those performed by Dr. Farooque. He and Dr. Farooque conferred on the
matter and believed that the defendant had a “rational understanding of the elements of the crime
against him and why he has been charge[d] with what he has” and that “[h]e communicates rationally
at this time.” He said that the defendant’s “lack of memory is for the period preceding and around
the time [of] his self-inflicted gun wound.” Dr. Craddock said that the defendant’s “deficiency [was]
amnesia, not irrational or factual understanding,” and that, as to competency to stand trial, he “me[t]
the Dusky standards.”

        The judgments in each of the three counts set out in an identical fashion that the defendant
has reserved a certified question:

       Defendant reserves a certified dispositive question of law pursuant to T.R.C.P.
       37(b)(i) with the express agreement of both the state and court. Said question of law
       is set forth in an order filed contemporaneously with this judgment and the guilty plea
       and the terms of that order are expressly incorporated as if set forth verbatim.

       The agreed order, entered on the same day as the judgments, sets out the certified question:

               This cause came to be heard on the 15th day of April, 2004, upon consent of
       the parties to certify the following dispositive question of law pursuant to Tenn. Rule
       of Criminal Procedure 37(b)(i).

                1. Whether the trial court erred in finding the defendant competent to stand
       trial?




                                                 -3-
                The parties agree and the Court finds that the above described question of law
        was expressly reserved as part of the defendant’s plea agreement in this cause; that
        the State and the Court consented to the reservation of this issue; and that all parties
        and the Court are of the opinion that this issue is dispositive of this case.

               IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the above
        described question of law be certified for appeal pursuant to Tenn. Rule of Criminal
        Procedure 37(b)(i). It is further ordered that the provisions of this order are hereby
        incorporated into defendant’s judgment and guilty plea in this case, as if set forth
        verbatim.

                All of which is so ordered this the 15th day of April, 2004.

                                              ANALYSIS

         While the certified question is very general, that the trial court erred in finding the defendant
was competent to stand trial, his “Memorandum of Law in Support of Finding Defendant
Incompetent to Stand Trial” shows that his precise argument actually is that, since he has amnesia
as to the time of the three homicides, his being found competent denies him the right to testify in his
own behalf, his argument relying upon Momon v. State, 18 S.W.3d 152 (Tenn. 1999). His argument
in this regard is twofold: the proof at the hearing established, under the standard set out in Dusky
v. United States, 362 U.S. 402, 80 S. Ct. 788 (1960), he was not competent to stand trial; or,
alternatively, the Dusky standard is unconstitutional, given the holding in Momon that a defendant
has a constitutional right to testify. He asks this court to reverse the determination of the trial court
finding him competent to stand trial and dismiss the charges against him or, in the alternative, allow
him to withdraw his pleas of guilty.

         To these arguments, the State responds that the purported certified question is legally
deficient because “[t]he resolution of the question of the defendant’s present competency to stand
trial will not result in a final disposition,” for this court has “no authority upon which to order the
charges dismissed.” The defendant responds by asserting that, in State v. Jamie Walker, No. 02C01-
9707-CC-00283, 1998 WL 652941 (Tenn. Crim. App. Sept. 24, 1998), this court “determined that
the issue of whether a defendant is competent to stand trial was a dispositive issue and, therefore,
that the certified question in that case was properly before the court.” In Walker, this court assumed,
without explanation, that a certified question posing as the issue whether the trial court had erred in
finding that the defendant was competent to stand trial was dispositive of the case. Id. at *2. We
believe that an analysis of this issue is necessary and conclude, as we will explain, that the certified
question is not dispositive.

        The law as to the circumstances under which a defendant with amnesia can be competent to
stand trial is explained in State v. Leming, 3 S.W.3d 7, 16 (Tenn. Crim. App. 1998), where the
defendant was convicted for the first degree murder of her husband, who had been found beside the
defendant, with both shot in the head. The matter came to this court following her jury trial and


                                                   -4-
conviction. Among other arguments in her appeal, she claimed that she “was incompetent due to
her amnesia surrounding the shootings.” Id. at 13. The State responded, as in the present appeal,
“that amnesia, in and of itself, does not constitute incompetency.” Id. Reviewing the defendant’s
claims, this court explained that, as to the competency of a defendant to stand trial, Tennessee
followed the standard set out in Dusky: “[T]he ‘test must be whether [the defendant] has sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding – and
whether he has a rational as well as factual understanding of the proceedings against him.’” Id. at
13-14 (quoting Dusky, 362 U.S. at 402, 80 S. Ct. at 789). With this background, we now will
determine whether the defendant’s certified question is dispositive of the case, the State contending
that it is not.

        Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure creates four exceptions to the
general rule that a defendant cannot appeal after a plea of guilty or nolo contendere and allows an
appeal if:

                 (i) the defendant entered into a plea agreement under Rule 11(e) but explicitly
        reserved with the consent of the state and of the court the right to appeal a certified
        question of law that is dispositive of the case, and the following requirements are
        met: (A) the judgment of conviction, or other document to which such judgment
        refers that is filed before the notice of appeal, must contain a statement of the
        certified question of law reserved by defendant for appellate review; (B) the question
        of law must be stated in the judgment or document so as to identify clearly the scope
        and limits of the legal issue reserved; (C) the judgment or document must reflect that
        the certified question was expressly reserved with the consent of the state and the
        trial judge; and (D) the judgment or document must reflect that the defendant, the
        state, and the trial judge are of the opinion that the certified question is dispositive
        of the case.

Tenn. R. Crim. P. 37(b)(2)(i).

        Tennessee Code Annotated section 33-7-301 sets out the procedures for competency
determinations for criminal defendants. Subsection (b) provides that if “the defendant is
incompetent to stand trial because of mental illness,” the court “shall determine, in addition to the
findings required by chapter 6, part 5 of this title, whether the defendant is substantially likely to
injure the defendant or others if the defendant is not treated in a forensic services unit and whether
treatment is in the defendant’s best interest.” Tenn. Code Ann. § 33-7-301(b)(1), (4). Subsection
(c) provides that when a person admitted pursuant to subsection (b) “has been hospitalized for six
(6) months, and at six-month intervals thereafter, the chief officer of the hospital shall file a written
report with the clerk of the court by whose order the defendant was confined . . . [and] the report
shall detail the chief officer’s best judgment as to the defendant’s prospects for recovery, the
defendant’s present condition, the time required for relevant kinds of recovery, and whether there
is substantial probability that the defendant will become competent to stand trial in the foreseeable
future.” Id. § 33-7-301(c).


                                                  -5-
        Applying this section to the present appeal would mean that, if this court agreed with the
defendant that the trial court had erred in determining that he was competent to stand trial, we would
not dismiss the matter, as he urges would be the result, but, instead, remand it to the trial court to
follow the procedures set out in Tennessee Code Annotated section 33-7-301 and make required
findings as to judicial hospitalization. Although the trial court noted in its order that the report from
Middle Tennessee Mental Health Institute stated that the defendant “did not meet the standards of
judicial commitment to a mental health institute pursuant to the provisions of T.C.A. § 33-7-301(b)
and 33-6 part 5,” no testimony was presented at the hearing and no finding was made as to this
question. Accordingly, a resolution favorable to the defendant would not result in dismissal. Thus,
the defendant has not presented a proper certified question, and this court is without jurisdiction to
hear this appeal.

        Relying on State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984), the defendant
argues in his reply brief that if this court determines that the question was not properly certified, he
should be allowed to withdraw his pleas of guilty. The court, in Wilkes, determined from the
transcript of the submission hearing that, even though matter purported to come to the appellate
process as a certified question of law, “neither the State, the defendant, nor the trial judge considered
the search issues to be dispositive.” Id. at 666. Concluding that the question was not dispositive of
the case, this court allowed the defendant to withdraw his pleas of guilty, explaining:

        [The defendant] states that his attorney, the District Attorney, and the trial judge
        informed him that he could appeal the validity of the search warrant and obtain a trial
        excluding evidence obtained as a result of the two searches in the event we sustained
        his contentions. We agree with the defendant in this assertion and agree that it would
        be unfair under the circumstances to dismiss the appeal and affirm the judgments
        entered on the guilty pleas.

Id. at 667.

       By contrast, in the present appeal the record does not reflect other than the defendant, his
attorney, the State, and the trial court believed that the purported certified question was dispositive.
We respectfully disagree and conclude that we are without jurisdiction to entertain this matter.
Further, we discern no basis for permitting the defendant to withdraw his pleas of guilty.

                                           CONCLUSION

        Based upon the foregoing authorities and reasoning, we dismiss this appeal.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                  -6-
