        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 10, 2012

               STATE OF TENNESSEE v. HERALAL NANDLAL

               Direct Appeal from the Criminal Court of Shelby County
                    No. 09-01571    James M. Lammey, Jr., Judge




                 No. W2011-00142-CCA-R3-CD - Filed August 6, 2012


The Defendant, Heralal Nandlal, was indicted on one count of aggravated robbery. At the
close of the State’s proof at trial, the trial court, out of the presence of the jury, sua sponte
revoked the Defendant’s appearance bond. The jury convicted the Defendant of aggravated
robbery, and the Defendant now appeals. On appeal, he asserts that the trial court
demonstrated bias in its decision to revoke the Defendant’s bond. After a careful review of
the record, we affirm the Defendant’s conviction.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal
                           Court Affirmed and Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Sean H. Muizers, Memphis, Tennessee, for the appellant, Heralal Nandlal.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                          OPINION

                             Background Facts and Procedure

      The Defendant was indicted by the Shelby County Grand Jury of one count of
aggravated robbery, a Class B felony. The Defendant was tried before a jury on October 4-7,
2010. The testimony at trial established that on the early morning of November 13, 2008,
the Defendant robbed Thomas Fletcher while threatening Fletcher with a hunting knife.
Fletcher knew the Defendant as his neighbor who shared an adjoining townhouse. The
Defendant initially came to Fletcher’s door and asked for money and for the use of his cell
phone. Fletcher obliged. The Defendant returned thirty minutes later, and Fletcher again
allowed the Defendant to enter his home. When the Defendant asked for five more dollars,
Fletcher refused. At this point, the Defendant grabbed a knife in Fletcher’s living room and,
according to Fletcher, “demanded money from me again with the threat of doing me in.”
Fletcher and the Defendant walked to Fletcher’s bedroom so that Fletcher could retrieve his
wallet. Fletcher removed the requested five dollars from his wallet, but the Defendant
instead grabbed the wallet containing approximately two hundred dollars and fled.

       Sergeant Michael Brown, Memphis Police Department (“MPD”), testified that he
investigated the robbery and that he questioned the Defendant regarding the Defendant’s
involvement. According to Sergeant Brown, although the Defendant initially denied his
involvement, the Defendant later admitted, “Okay, I did commit the robbery, but I needed
money at the time. That was the reason why I did it.” The Defendant also admitted to
Sergeant Brown that he picked up a hunting knife and used it to confront Fletcher. Sergeant
Gary Padgett, MPD, also testified regarding his involvement in the investigation of the
robbery. He stated that the Defendant admitted to him that the Defendant pressed the knife
against Fletcher’s neck.

      At the close of proof and outside the presence of the jury, the trial court sua sponte
revoked the Defendant’s appearance bond.1 When defense counsel requested that the
Defendant remain out on bond, the trial court stated:

        I understand, but experience has taught that on a Class-B felony, as serious as
        this, and the proof is all in – he knows what the proof is – I’ve heard the proof
        – I think it’s highly likely that he will be convicted. I think it’s a much – the
        flight risk is much, much greater. So that’s the reason I’m revoking his bond.
        I think he’s a much greater flight risk.

      The jury deliberated and found the Defendant guilty of aggravated robbery.2
Following a sentencing hearing, the trial court sentenced the Defendant as a standard



        1
            The record indicates that the trial court conducted no evidentiary hearing before taking this action.
        2
          The judgment form contains checks in boxes for both “Guilty Plea – Pursuant to [§] 40-35-313”
and “Jury Verdict.” The transcript indicates that the Defendant was convicted of aggravated robbery by jury
verdict and not by guilty plea.

                                                        -2-
offender to eleven years. The Defendant filed a motion for new trial, raising numerous
issues, including the trial court’s bond revocation prior to the conclusion of the trial.

        At the hearing on the Defendant’s motion for new trial, the Defendant argued that the
trial court erred in revoking his appearance bond. In denying the Defendant’s motion for
new trial, the trial court stated as to this issue:

              I believe the primary purpose for being out on bond is to assist the
       Defense, in the defense, but, of course, at the end of all the proof there was no
       further need to be out on bond. That’s one issue.

               The second issue is I think that, after having heard all the proof, the
       chances of being a flight risk are much, much greater, as I experienced in a
       homicide case not too long ago where I allowed the Defendant to stay out till
       there was a verdict, a jury verdict, and he just decided that he did not want to
       hear what the verdict was and fled the building, so having had that experience,
       number one, and number two, there was no need for him to be out, and number
       three, I believe that he was a much greater flight risk after having heard all the
       proof and could plainly see that his chances of being convicted were pretty
       good. That was the reason why I did that.

               Furthermore, I don’t see how that affected the outcome of the trial.
       Obviously, the jury had no idea that his bond was revoked, so even if I did
       make a mistake in doing that, which I don’t think I did, I don’t think it would
       affect – be cause for a new trial. So I will show it denied on that basis, as well.

       The Defendant appeals his conviction, claiming that the trial court erred in its decision
to revoke the Defendant’s bond.

                                           Analysis

       The Defendant claims on appeal that “the trial court erred in revoking [the
Defendant’s] bond at the close of proof before the jury had heard closing statements,
instruction, or had returned a verdict.” The State filed a motion to dismiss the Defendant’s
appeal based on the Defendant’s failure to seek review of the bond revocation under
Tennessee Rule of Appellate Procedure 8. (“Before conviction, as a prerequisite to review,
a written motion for the relief sought on review shall first be presented to the trial court.”).
This Court initially granted the motion. The Defendant then filed a petition to rehear,
claiming that the State and this Court misinterpreted his appeal as a review of the trial court’s
decision to revoke the Defendant’s bond. Instead, the Defendant asserted, he “is appealing

                                               -3-
the bias of the trial court judge as illustrated by his revocation of [the Defendant’s bond].”
This Court granted the Defendant’s petition to rehear. Thus, we will not review whether the
trial court’s decision to revoke the Defendant’s bond was appropriate due to the Defendant’s
failure to follow the required protocol under Tennessee Rule of Appellate Procedure 8.

       Accordingly, the sole issue for appellate review is whether the trial court displayed
judicial bias that prejudiced the Defendant. However, the issue presented in the Defendant’s
motion for new trial was whether the court erred in revoking the Defendant’s bond. The
Defendant did not include in the record a memorandum of law in support of his bias claim,
nor did he argue bias at the hearing on the motion for new trial. Thus, the Defendant has
waived the issue of bias for appellate review, absent a finding by this Court of plain error.3 See
Tenn. R. App. 3(e) (“[N]o issue presented for review shall be predicated upon error . . . unless the
same was specifically stated in a motion for new trial; otherwise, such issues will be treated as
waived.”).

        The doctrine of plain error provides that “[w]hen necessary to do substantial justice,
an appellate court may consider an error that has affected the substantial rights of a party at
any time, even though the error was not raised in the motion for a new trial or assigned as
error on appeal.” Tenn. R. App. P. 36(b). This Court may find plain error only if all five of
the following factors are present: “(1) the record clearly establishes what occurred in the trial
court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the
accused was adversely affected, (4) the accused did not waive the issue for tactical reasons,
and (5) consideration of the error is necessary to do substantial justice.” State v. Hester, 324
S.W.3d 1, 56 (Tenn. 2010) (citing State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007)); see
also State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). We need not
consider all five factors when the record clearly establishes that at least one of the factors is
not met. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). It is the defendant’s burden
to persuade this Court that the trial court committed plain error and that the error “was of
sufficient magnitude that it probably changed the outcome of the trial.” Hester, 324 S.W.3d
at 56 (citing State v. Bledsoe, 226 S.W.3d 349, 354-55 (Tenn. 2007)).

        Tennessee Rule of the Supreme Court 10, Cannon 3(B)(5) states,

        A judge shall perform judicial duties without bias or prejudice. A judge shall
        not, in the performance of judicial duties, by words or conduct manifest bias
        or prejudice, including but not limited to, bias or prejudice based upon race,
        sex, religion, national origin, disability, age, sexual orientation, or


        3
        Indeed, only a generous reading of the Defendant’s brief would support an argument that the
Defendant even raises bias as an issue. Moreover, the Defendant’s brief does not address plain error review.

                                                    -4-
        socioeconomic status, and shall not permit staff, court officials, and others
        subject to the judge’s direction and control to do so.

        The Defendant asserts that the Defendant “would have to appear a second day in front
of the jury wearing the same outfit as he did the day before” and that “jurors would have the
chance of seeing family members carrying clothes through the courthouse.” However,
defense counsel raised these two concerns at the time the trial court revoked the Defendant’s
appearance bond. The trial court allowed the Defendant’s family members to bring him
clothes so that he would not appear in the same clothes a second day. The trial court also
discussed through which door the family should enter to avoid being seen by the jury with
the Defendant’s clothes. The Defendant has provided nothing in the record to indicate that
either the Defendant appeared in the same clothes a second day or that a juror or jurors
observed the family bring clothes for the Defendant. Thus, even assuming that the trial judge
inappropriately revoked the Defendant’s appearance bond in a manner that somehow
indicated the bias of that judge,4 the Defendant has not established that the error “was of
sufficient magnitude that it probably changed the outcome of the trial.” Hester, 324 S.W.3d
at 56 (citing Bledsoe, 226 S.W.3d at 354-55). Therefore, the Defendant is entitled to no
relief on this issue.

                                           CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court. We, however,
remand this matter to the trial court to correct the judgment order to reflect only that the
Defendant was convicted in a jury trial.

                                                _________________________________
                                                JEFFREY S. BIVINS, JUDGE




        4
          We expressly note that we have chosen not to address the factor of plain error review of whether
the trial court breached a clear and unequivocal rule of law by sua sponte revoking the Defendant’s
appearance bond without any evidentiary hearing prior to completion of the Defendant’s trial.

                                                   -5-
