                                                                                        08/07/2019
                 IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE
                               February 6, 2019 Session


         STATE OF TENNESSEE v. HASSAN FALAH AL MUTORY

             Appeal by Permission from the Court of Criminal Appeals
                       Criminal Court for Davidson County
                    No. 2015-C-1905 Seth W. Norman, Judge

                       ___________________________________

                            No. M2017-00346-SC-R11-CD
                       ___________________________________


We granted this appeal to determine whether, after the death of a defendant during an
appeal as of right from a conviction, the Court of Criminal Appeals should follow our
holding in Carver v. State, 398 S.W.2d 719 (Tenn. 1966). We conclude that, due to
changes in Tennessee’s public policy in the arena of victims’ rights, the doctrine of
abatement ab initio must be abandoned. Because there is no evidence before the Court
that any interest would benefit from allowing the deceased defendant’s appeal to
continue, we hold that, in this case, the deceased defendant’s appeal as of right from his
conviction should be dismissed.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
            Appeals Reversed; Judgment of the Trial Court Reinstated

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,
C.J., and HOLLY KIRBY and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., concurring
in part and dissenting in part.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and M. Todd Ridley, Assistant Attorney General, for the appellant, State of
Tennessee.

Joel W. Crim and David L. Raybin, Nashville, Tennessee, for the appellee, Hassan Falah
Al Mutory.
                                        OPINION

                        I. Factual and Procedural Background

       In the early hours of the morning on August 31, 2014, while attending a house
party in west Nashville, Hassan Falah Al Mutory, the defendant in this case, pulled out a
gun and fired it three times. The first two bullets caused no harm, but the third struck
another party-goer, Carlos Gomez, in the head. Mr. Gomez died later that day. The
defendant was charged with one count of first degree murder.

       On September 15, 2016, a jury found the defendant guilty of reckless homicide.
On December 7, 2016, the trial court sentenced the defendant to three years of
incarceration. He was not required to pay any fees or restitution.

       The defendant appealed his conviction, arguing first, that the court erred by
admitting a recorded interview at trial and, second, that there was insufficient evidence to
find him guilty of reckless homicide. However, before the Court of Criminal Appeals
could rule on the matter, on November 1, 2017, the defendant died.

       The defendant’s attorney then filed a motion asking the Court of Criminal Appeals
to apply the doctrine of abatement ab initio, which this Court adopted in Carver v. State,
398 S.W.2d 719 (Tenn. 1966). “‘Abatement’ is defined as the discontinuance of a legal
proceeding ‘for a reason unrelated to the merits of the claim.’” State v. Burrell, 837
N.W.2d 459, 462–63 (Minn. 2013) (quoting Black’s Law Dictionary 3 (9th ed. 2009)).
“‘Ab initio’ means ‘[f]rom the beginning.’” Id. at 463 (quoting Black’s Law Dictionary 5
(9th ed. 2009)). The effect of abatement ab initio “is to stop all proceedings ab initio
(from the beginning) and render the defendant as if he or she had never been charged.”
Timothy A. Razel, Note, Dying to Get Away with It: How the Abatement Doctrine
Thwarts Justice & What Should Be Done Instead, 75 Fordham L. Rev. 2193, 2195
(2007). Defense counsel asked the Court of Criminal Appeals to apply the doctrine of
abatement ab initio, vacate the defendant’s conviction, and dismiss the indictment.

       The State opposed the motion and argued that the doctrine of abatement ab initio
“no longer fits within Tennessee’s jurisprudence” due to an amendment to the Tennessee
Constitution that provides victims with certain rights during criminal proceedings. See
Tenn. Const. art. I, § 35. The Court of Criminal Appeals rejected the State’s argument,
pointing out that the Tennessee Constitution does not specifically address the doctrine of
abatement ab initio. The Court of Criminal Appeals also opined that “a decision to
overturn long-standing Tennessee precedent based upon the weighing of . . . competing
policies and interests is best left to the legislature.” State v. Mutory, No. M2017-00346-
CCA-R3-CD (Tenn. Crim. App. Apr. 19, 2018) (order).

                                            -2-
       The State then applied for permission to appeal to this Court pursuant to
Tennessee Rule of Appellate Procedure 11, arguing that “Tennessee should abandon the
rule of abatement ab initio, which effectively voids a defendant’s conviction if the
defendant dies while a direct appeal is pending” and replace it with “dismissal of the
appeal.” We granted the State’s application.

                                     II. Standard of Review

        The issue in this appeal—whether Tennessee should continue to apply abatement
ab initio when a criminal defendant dies during an appeal as of right from a conviction—
is a question of law, which we review de novo without a presumption of correctness.
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008). The same is true of
any issue concerning the scope of appellate review. Peck v. Tanner, 181 S.W.3d 262,
265 (Tenn. 2005). We afford no deference to the legal conclusions of the court below.
Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009).

                                           III. Analysis

        The doctrine of abatement ab initio is something of a legal curiosity. The
Tennessee Court of Criminal Appeals, which has received and disposed of over a
thousand matters every year for the past decade,1 receives only a few motions to abate ab
initio per year. Although the issue arises infrequently, the parameters and continuing
viability of the doctrine are now hotly debated around the country. Compare Payton v.
State, No. 2016-KA-00378-SCT, 2019 WL 1292182, at *8 (Miss. Mar. 21, 2019)
(“[D]eparture from the abatement ab initio doctrine is necessary to avoid the perpetuation
of pernicious error.”), with United States v. Libous, 858 F.3d 64, 68–69 (2d Cir. 2017)
(requiring that courts abate appeals ab initio even though the consequences of abatement
ab initio “can surely be devastating”).


       1
           Admin. Office of the Courts, Annual Report of the Tennessee Judiciary for Fiscal Year 2017–
2018, at 12–13 (2018); Admin. Office of the Courts, Annual Report of the Tennessee Judiciary for Fiscal
Year 2016–2017, at 11–12 (2017); Admin. Office of the Courts, Annual Report of the Tennessee
Judiciary for Fiscal Year 2015–2016, at 11–12 (2016); Admin. Office of the Courts, Annual Report of the
Tennessee Judiciary for Fiscal Year 2014–2015, at 11–12 (2015); Admin. Office of the Courts, Annual
Report of the Tennessee Judiciary for Fiscal Year 2013–2014, at 12–13 (2014); Admin. Office of the
Courts, Annual Report of the Tennessee Judiciary for Fiscal Year 2012–2013, at 15–16 (2013); Admin.
Office of the Courts, Annual Report of the Tennessee Judiciary for Fiscal Year 2011–2012, at 14 (2012);
Admin. Office of the Courts, Annual Report of the Tennessee Judiciary for Fiscal Year 2010–2011, at 14
(2011); Admin. Office of the Courts, Annual Report of the Tennessee Judiciary for Fiscal Year 2009–
2010, at 14 (2010); Admin. Office of the Courts, Annual Report of the Tennessee Judiciary for Fiscal
Year 2008–2009, at 14 (2009).

                                                 -3-
        This debate has risen to the forefront because the doctrine has been applied in a
number of high-profile criminal cases where the persons convicted died while their
appeals were pending. See Tim E. Staggs, Note, Legacy of a Scandal: How John
Geoghan’s Death May Serve As an Impetus to Bring Abatement Ab Initio in Line with
the Victims’ Rights Movement, 38 Ind. L. Rev. 507 (2005) (discussing the abated
conviction of a child molester); Eric Levenson & Holly Yan, Aaron Hernandez’s Murder
Conviction       Cleared       after     Suicide,     CNN        (May       9,     2017),
https://www.cnn.com/2017/05/09/us/aaron-hernandez-murder-conviction-abated/index.ht
ml (discussing the abated conviction of a murderer);2 Shaheen Pasha, U.S., Lay Estate
Ink $12M Pension Settlement, CNN: Money (Sept. 7, 2006, 4:15 PM),
https://money.cnn.com/2006/09/07/news/newsmakers/lay_enron_claim/index.htm?postve
rsion=2006090716 (discussing the abated conviction of a former Enron chairman). Not
surprisingly then, in recent years, courts around the country have been asked to
reconsider the doctrine and determine whether the justifications originally supporting its
adoption remain valid, particularly in light of other changes in the legal landscape
concerning the rights of victims. This appeal provides us with an opportunity for
reconsideration as well.

                                     A. Abatement Ab Initio

        Abatement ab initio is a court-made doctrine, but the origin of this doctrine is not
entirely clear. Commonwealth v. Hernandez, 118 N.E.3d 107, 111 (Mass. 2019) (noting
that there is “little or no evidence of [abatement ab initio] prior to the late nineteenth
century.” (quoting Bevel v. Commonwealth, 717 S.E.2d 789, 792 (Va. 2011))). One of
the earliest cases in the United States to discuss and apply the concept of abatement in a
criminal case, O’Sullivan v. People, 32 N.E. 192 (Ill. 1892), did not apply the doctrine of
abatement ab initio. In O’Sullivan, the defendant died during the pendency of his writ of
error, and the defendant’s attorneys and his estate asked the appellate court to decide the
matter and enter its judgment nunc pro tunc3 for a date before the defendant died. Id. at
192. The O’Sullivan court refused, stating that “[a] judgment cannot be enforced when
the only subject-matter upon which it can operate has ceased to exist.” Id. at 193. Before
reaching this conclusion, the court observed:




       2
         Aaron Hernandez’s conviction has since been reinstated. See Commonwealth v. Hernandez,
118 N.E.3d 107, 110 (Mass. 2019).

       3
         “A judgment entered on a day after the time when it should have been entered . . . .” Judgment
Nunc Pro Tunc, Black’s Law Dictionary (10th ed. 2014).

                                                 -4-
       Judgments in civil cases . . . are for the recovery or the denial of something
       either specifically or in the form of damages of some pecuniary value. . . .
       But in criminal cases, under indictments for felonies, the sole purpose of
       the action is not to give the people anything, but to punish the defendant in
       his person . . . .

Id. at 192. The court then abated the writ of error. Id. at 194. But the court did not abate
the conviction.

        Following O’Sullivan, many state appellate courts, including this Court, limited
abatement to the appeals process only and left intact the convictions of deceased
defendants. See, e.g., Wiggins v. State, 289 S.W. 498, 499 (Tenn. 1926) (stating that
when a criminal defendant died while his appeal was pending his “case” was “abated”);
State v. Martin, 47 P. 196, 196 (Or. 1896) (“In [prior] cases the defendant died after the
cause had been submitted to the appellate court for decision, and . . . the courts refus[ed]
to proceed any further in the matter or pronounce any decision in the cases. It follows
that this appeal must abate, and it is so ordered.”); see also Alexander F. Mindlin, Note,
“Abatement Means What It Says”: The Quiet Recasting of Abatement, 67 N.Y.U. Ann.
Surv. Am. L. 195, 207 (2011) (“Traditional courts abated in several different ways, none
of which connoted the erasure of the defendant’s guilt.”). But see Overland Cotton Mill
Co. v. People, 75 P. 924, 927 (Colo. 1904) (“As to the deceased, the judgment is
abated.”).

      As time passed, however, courts expanded the doctrine of abatement to include
criminal prosecutions from their beginning, or ab initio. See State v. Morris, 328 So. 2d
65, 67 (La. 1976) (“Hence, the appeal in this case is dismissed, the judgment of
conviction is vacated, and the case is remanded to the district court with instructions to
dismiss the bill of information.”); State v. Campbell, 193 N.W.2d 571, 572 (Neb. 1972)
(same). Several justifications have been cited in support of this expansion:

       Such abatement is premised on the theory that without it, the defendant
       would be deprived of his statutory right to review, that the conviction is not
       final until the time for appeal is exhausted, and that abatement prevents
       both recovery against the decedent’s estate (if there is a fine) and the use of
       the conviction in civil litigation against the estate. Another justification is
       that punishment—the purpose of the criminal justice system—is not
       possible after the defendant dies.

Wayne R. LaFave et al., 7 Criminal Procedure. § 27.5(a) (4th ed. Nov. 2018 update)
(footnote omitted) [hereinafter Criminal Procedure].



                                            -5-
       The impossibility of punishment concern was an especially important motivating
factor in the early decisions adopting the doctrine, including this Court’s opinion in
Carver, which stated:

       One of the cardinal principles and reasons for the existence of criminal law
       is to punish the guilty for acts contrary to the laws adopted by society. The
       defendant in this case having died is relieved of all punishment by human
       hands and the determination of his guilt or innocence is now assumed by
       the ultimate arbiter of all human affairs.

398 S.W.2d at 720. The Carver Court also relied upon one of the other rationales for the
doctrine of abatement ab initio—the importance of an appeal as of right—noting:

       Defendant’s right of appeal inhered in the prosecution from the beginning.
       His right of appeal was as inviolable as any right of defense. Also his right
       of suspension of the judgment of the trial court until after the appeal had
       been heard. [sic] The judgment below could not become a verity until the
       appellate court made it so by an affirmance. If the appeal had been
       sustained, all the proceedings in the trial below would fall. The question of
       the defendant’s guilt was therefore necessarily undetermined at the time of
       his death.

Id. (quoting State v. Kriechbaum, 258 N.W. 110, 113 (Iowa 1934)).4

       Indeed, the expansion of abatement of a criminal appeal into abatement ab initio
coincided with the increased availability of appeals as of right and with courts viewing
appeals as of right as a continuation and culmination of the criminal proceedings initiated
in the trial court. At the time of this nation’s founding, the concept of a right to appeal
was still in its infancy. See David Rossman, “Were There No Appeal”: The History of
Review in American Criminal Courts, 81 J. Crim. L. & Criminology 518, 525–26 (1990).
States generally did not consider review of a conviction necessary to the preservation of a
defendant’s rights. Id. at 543–48. But that did not mean that criminal defendants were

       4
          Tennessee courts have continued to apply the doctrine of abatement ab initio since Carver,
although this Court has not had an opportunity since to consider its soundness. See Burton v.
Mooneyham, No. M2017-01110-COA-R3-CV, 2018 WL 1377852, at *3 n.5 (Tenn. Ct. App. Mar. 19,
2018); State v. Koulis, No. M2007-02781-CCA-R3-CD (Tenn. Crim. App. May 5, 2010) (order
dismissing         appeal        and         abating         conviction)       (available         at
https://www2.tncourts.gov/PublicCaseHistory/CaseDetails.aspx?id=24333&Number=True); State v.
Quinn, No. 01C019709CC00413, 1998 WL 418030, at *1 (Tenn. Crim. App. July 16, 1998); State v.
Hanvy, No. 01C01-9401-CC-00448, 1994 Tenn. Crim. App. Lexis 862 (Tenn. Crim. App. Aug. 11,
1994); State v. Osagiede, No. C-4829, 1984 Tenn. Crim. App. Lexis 2369 (Tenn. Crim. App. Mar. 20,
1984).

                                                -6-
left without any sort of review of their convictions. Id. at 538–42. Instead, the states
allowed review of criminal convictions because “[r]eview provided a means for ensuring
the uniform application of the law.” Id. at 549–50. Eventually, states recognized that the
right to appeal from a conviction was necessary to the preservation of a defendant’s
rights, although “[t]he number of cases heard by state appellate courts remained quite
small into the 1900s.”5 7 Criminal Procedure, at § 27.1(a) n.3. The availability and
growth of the right to appeal was similarly slow to develop in federal courts. See Carroll
v. United States, 354 U.S. 394, 400 (1957) (“Indeed, it was 100 years before the
defendant in a criminal case, even a capital case, was afforded appellate review as of
right.”).

        But, as the right to appeal became more common, it became more highly valued.
In United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977) (quoting Griffin v.
Illinois, 351 U.S. 12, 18 (1956)), when applying the doctrine of abatement ab initio, the
Seventh Circuit described appeals as of right as an “integral part of (our) system for
finally adjudicating . . . guilt or innocence.” Consequently, the Seventh Circuit held that
when a criminal defendant dies during an appeal as of right from a conviction “the
interests of justice ordinarily require that he not stand convicted” because the defendant
has not yet received a final adjudication of guilt. Id.6


        5
          States began to consider providing criminal defendants a right to appeal from their convictions
in the mid-1800s. See Cassandra Burke Robertson, The Right to Appeal, 91 N.C. L. Rev. 1219, 1238
(2013). Now, all fifty states provide some form of a right to appeal from a conviction, although Virginia
has granted the right only to defendants who have been sentenced to death. See Bundy v. Wilson, 815
F.2d 125, 136–42 (1st Cir. 1987) (listing the various constitutional provisions, statutes, and court-crafted
doctrines dealing with the right to appeal in all fifty states as well as Puerto Rico and the District of
Columbia); Robertson, supra, at 1281 n.8 (2013) (noting recent developments altering the right to appeal
in New Hampshire, West Virginia, and Virginia).
        6
           Courts have not typically applied the doctrine of abatement ab initio when a defendant dies
during the pendency of a discretionary appeal. Rather, courts distinguish between an appeal as of right to
an intermediate appellate court and a discretionary appeal to a jurisdiction’s highest appellate court,
applying the doctrine only to the former type of appeal and dismissing the latter. See, e.g., People v.
Griffin, 328 P.3d 91, 95 (Colo. 2014).

         This distinction stems primarily from the Moehlenkamp Court’s discussion of two United States
Supreme Court cases: Durham v. United States, 401 U.S. 481 (1971), and Dove v. United States, 423
U.S. 325 (1976). The Seventh Circuit interpreted these two cases to stand for the proposition that an
appeal as of right from a criminal conviction “brings into play different considerations” than a petition for
writ of certiorari because “[t]he Supreme Court may dismiss the petition without prejudicing the rights of
a deceased petitioner, for he has already had the benefit of the appellate review of his conviction to which
he was entitled of right.” Moehlenkamp, 557 F.2d at 127–28. Thus, the Seventh Circuit held that, while
a defendant’s death during an appeal as of right from a conviction requires abatement of the conviction, a
defendant’s death during a discretionary appeal requires only dismissal. Id.

                                                    -7-
       Buoyed by the justifications of the impossibility of punishment and the importance
of an appeal to the validity of a criminal conviction, the doctrine of abatement ab initio
flourished in the United States through the end of the twentieth century. See United
States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001) (“Thus, the rule followed almost
unanimously by the Courts of Appeals is that a conviction abates on the death of the
accused before his appeal has been decided.”); State v. Korsen, 111 P.3d 130, 134 (Idaho
2005) (referring to the doctrine of abatement ab initio as “the majority rule”); Surland v.
State, 895 A.2d 1034, 1036 (Md. 2006) (same). But, the tide has turned again—
currently, twenty-eight states do not apply the doctrine of abatement ab initio.7

       Two changes to the legal landscape of many states are often cited as the impetus
for the move away from the doctrine of abatement ab initio—restitution and a recognition
of victims’ rights. Over the past few decades, many states have amended their
constitutions and passed laws affording victims various rights during criminal
proceedings, including the right to fair and compassionate treatment, the right to be kept
informed of the proceeding, and many others. See Payton, 2019 WL 1292182, at *6–9
(collecting cases). States have also passed laws providing that convicted defendants can
be required to pay restitution to their victims. See Lorraine Slavin & David J. Sorin,
Congress Opens A Pandora’s Box—the Restitution Provisions of the Victim and Witness
Protection Act of 1982, 52 Fordham L. Rev. 507, 573 n.194 (1984) (collecting statutes).




        7
           See Ariz. Rev. Stat. Ann. § 13-106 (West, Westlaw current through April 22, 2019); Wheat v.
State, 907 So. 2d 461, 462 (Ala. 2005); State v. Carlin, 249 P.3d 752, 762–63 (Alaska 2011); State v.
Reed, 435 P.3d 1044, 1048 (Ariz. Ct. App. 2019); Perez v. State, 2016 Ark. 298, at 1, 2016 WL 4703478,
at *1 (2016); State v. Trantolo, 549 A.2d 1074, 1074 (Conn. 1988); Perry v. State, 575 A.2d 1154, 1156
(Del. 1990); State v. Clements, 668 So. 2d 980, 982 (Fla. 1996); State v. Dodelin, 319 S.E.2d 911, 911
(Ga. Ct. App. 1984); State v. Makaila, 897 P.2d 967, 973 (Haw. 1995); Korsen, 111 P.3d at 135;
Whitehouse v. State, 364 N.E.2d 1015, 1016 (Ind. 1977); State v. Hollister, 329 P.3d 1220, 1222 (Kan.
2014); Royce v. Commonwealth, 577 S.W.2d 615, 616 (Ky. 1979); Surland, 895 A.2d at 1045;
Hernandez, 118 N.E.3d at 122; People v. Peters, 537 N.W.2d 160, 163–64 (Mich. 1995); Payton, 2019
WL 1292182, at *10; State v. Benn, 274 P.3d 47, 51–52 (Mont. 2012); Brass v. State, 325 P.3d 1256,
1258–59 (Nev. 2014); State v. Gartland, 694 A.2d 564, 568–69 (N.J. 1997); State v. Salazar, 945 P.2d
996, 1013 (N.M. 1997); Commonwealth v. Beaudoin, 182 A.3d 1009, 1010 (Pa. Super. Ct. 2018); State v.
Bixby, 723 S.E.2d 841, 841 (S.C. Ct. App. 2011); State v. Christensen, 866 P.2d 533, 536–37 (Utah
1993); Bevel, 717 S.E.2d at 795–96; State v. Webb, 219 P.3d 695, 699 (Wash. 2009); State v. McDonald,
424 N.W.2d 411, 414 (Wis. 1988); see also State v. McGettrick, 509 N.E.2d 378, 382–83 (Ohio 1987)
(requiring appellate courts to allow an appeal to continue upon motion from the decedent’s representative
or the state, but providing that in the absence of such a motion, appellate courts have the discretion to
vacate the conviction).

                                                  -8-
         The same is true of Tennessee. Mirroring the transformation of victims’ rights
laws that has “taken place throughout the country,” State v. Carlin, 249 P.3d 752, 758
(Alaska 2011), in 1990, Tennessee passed the Victims’ Bill of Rights, Tenn. Code Ann.
§§ 40-38-101 to 40-38-117 (2014 & Supp. 2018). This and other provisions of
Tennessee law endow victims with a variety of rights. Tennessee law requires that
victims “[b]e treated with dignity and compassion.” Tenn. Code Ann. § 40-38-102(a)(1).
It protects a victim’s right to restitution by providing that “[i]n addition to the punishment
. . . the person committing the offense may be sentenced by the court to pay restitution to
the victim or victims of the offense.” Tenn. Code Ann. § 39-11-118(a) (2018); see also
Tenn. Code Ann. § 40-38-106 (providing a right to restitution for victims of crimes
against their property). It reassures victims that they “shall be able to expect that the
operation of the criminal justice system will not be unnecessarily delayed and that they
will be able to return to normal lives as soon as possible.” Tenn. Code Ann. § 40-38-
105(a).

       In addition to these statutes, the Tennessee Constitution was amended in 1998
“[t]o preserve and protect the rights of victims of crime to justice and due process.”
Tenn. Const. art. I, § 35. This new constitutional provision set out eight rights for
victims, including the right to “a prompt and final conclusion of the case after the
conviction or sentence” and the “right to restitution from the offender.” Id.

        A recent decision from this Court, Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102
(Tenn. 2016), provides victims with further protection. In Bowen, we adopted “both
offensive and defensive collateral estoppel.” Id. at 115. This means that, in many
circumstances, a victim can rely upon the judgment in a criminal case when bringing a
civil action against the person who was convicted of the crime and, thereby, avoid re-
litigating issues already resolved in the criminal trial. Id. at 116–18.

        As many courts in other states have recognized, these changes in the arena of
victims’ rights are incongruent with the doctrine of abatement ab initio because abating a
defendant’s conviction can have a detrimental impact on victims both emotionally and
financially. See Wheat v. State, 907 So. 2d 461, 463 (Ala. 2005) (noting that abatement
ab initio has a “callous impact . . . on the surviving victims of violent crime” (quoting
People v. Robinson, 699 N.E.2d 1086, 1091 (Ill. App. Ct. 1998), vacated, 719 N.E.2d 662
(Ill. 1999))); Korsen, 111 P.3d at 133–35 (holding that changes in the state’s law
emphasizing victims’ rights meant that a conviction should not be abated if a criminal
defendant dies with a pending appeal); State v. Benn, 274 P.3d 47, 51 (Mont. 2012) (“[A]
restitution condition imposed within a criminal judgment may be enforceable by victims
against the defendant’s estate.”).8

        8
          So serious is the harm that abatement causes to a victim’s right to restitution that even some
courts applying abatement ab initio carve out an exception for restitution and require its payment despite

                                                  -9-
        The State argues that the doctrine of abatement ab initio is in tension with the
aforementioned changes to Tennessee law and policy and asks us to join with the many
other states that have abandoned it. Because abandoning the doctrine of abatement ab
initio as the State requests would require us to overturn precedent, we give the matter
careful consideration. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d
235, 262 (Tenn. 2015). “Confidence in our courts is to a great extent dependent on the
uniformity and consistency engendered by allegiance to stare decisis.” Hanover v. Ruch,
809 S.W.2d 893, 898 (Tenn. 1991) (quoting Davis v. Davis, 657 S.W.2d 753, 758 (Tenn.
1983)). But that does not mean we are bound to unquestioningly follow all precedent:

        “[M]indless obedience to this precept can confound the truth and foster an
        attitude of contempt.” As a live and breathing thing, the law changes when
        necessary to serve the needs of the people. When this basic purpose of the
        law is slighted or overlooked, then it loses a high degree of its majesty.

Id. (quoting Davis, 657 S.W.2d at 758). Thus, generally, we will overturn precedent only
“when there is an error in the precedent, when the precedent is obsolete, when adhering
to the precedent would cause greater harm to the community than disregarding stare
decisis, or when the prior precedent conflicts with a constitutional provision.” Cooper v.
Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013).

       Additionally, this appeal involves a common law procedural rule, United States v.
Estate of Parsons, 367 F.3d 409, 414 (5th Cir. 2004) (“[T]he doctrine of abatement ab
initio is largely court-created and a creature of the common law . . . .”), and
“‘[c]onsiderations in favor of stare decisis’ are at their weakest in cases ‘involving
procedural and evidentiary rules,’” Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J.,
concurring) (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)).

       We conclude that the doctrine of abatement ab initio must be abandoned because it
is obsolete, its continued application would do more harm than good, and it is
inconsistent with the current public policy of this State, as reflected in the constitution, in
statutes, and in recent judicial decisions. Changes to Tennessee law in the arena of
victims’ rights have expanded the purpose of the criminal justice system well beyond the
“cardinal principle[]” of “punishment.” Carver, 398 S.W.2d at 720. Furthermore,
abatement ab initio prioritizes the reputation of a deceased criminal and the financial
interests of the criminal’s estate over society’s interest in the just condemnation of a

the abatement of the conviction. Christopher, 273 F.3d at 299; People v. Daly, 313 P.3d 571, 577 (Colo.
Ct. App. 2011). Contra United States v. Ajrawat, 738 F. App’x 136, 139 (4th Cir. 2018) (holding that
even orders of restitution must be abated due to the determination in Nelson v. Colorado, 137 S. Ct. 1249,
1252 (2017), that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will
occur, . . . the State [is] obliged to refund fees, court costs, and restitution exacted from the defendant
upon, and as a consequence of, the conviction.”).

                                                  - 10 -
criminal act and a victim’s right to restitution. Its application would deprive victims of
the benefit of our holding in Bowen by forcing them to re-litigate matters in civil law
suits that were already resolved during deceased defendants’ criminal trials. We can no
longer countenance a doctrine that causes so much harm to the living for the sake of the
dead. Thus, we abandon the doctrine of abatement ab initio and expressly overrule our
decision in Carver v. State and any other prior decisions to the extent they conflict with
this holding by recognizing and applying the doctrine of abatement ab initio.

                                 B. Separation of Powers

        The Court of Criminal Appeals raised a concern that such a holding in this case
might appear to intrude on the legislature’s purview. It is true that this Court is “not free
to establish what its members believe to be the best policy for the State; rather, we must
determine where public policy is to be found, what the specific public policy is, and how
it is applicable to the case at hand.” Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987).
However, when deciding whether to abandon the doctrine of abatement ab initio, we are
not creating new public policy. Instead, we are determining whether an old, court-made
doctrine conflicts with the public policy now set out in Tennessee’s “constitution,
statutes, judicial decisions and applicable rules of common law.” Id. at 747 (quoting
State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 n.17 (Tenn. 1975)). “We have ‘not
hesitated to abolish obsolete common-law doctrines,’ and indeed have ‘a special duty to
do so where it is the Court, rather than the Legislature, which has recognized and
nurtured’ the common law rule.” State v. King, 40 S.W.3d 442, 447–48 (Tenn. 2001)
(quoting State v. Rogers, 992 S.W.2d 393, 400 (Tenn. 1999)). Thus, our abandonment of
abatement ab initio does not place this Court “in usurpation of the powers of the
legislature.” Smith, 728 S.W.2d at 747 (quoting Cavender v. Hewitt, 239 S.W. 767, 768
(Tenn. 1922)).

                     C. The Dismissal and Substitution Approaches

        We must now determine the appropriate resolution of this appeal in light of our
abrogation of abatement ab initio. The State encourages us to adopt a straightforward
“dismiss as moot” approach that would require the dismissal of every criminal appeal
from a conviction upon the death of the defendant, regardless of whether the defendant or
the State brought the appeal. Although defense counsel did not address the issue in his
briefs, at oral argument he asserted that a representative of a deceased defendant should
be allowed to stand in as a substitute and proceed with an appeal in every case.

       The states that have decided to abandon the doctrine of abatement ab initio differ
greatly in the approaches they have chosen to replace it—“there being, depending on how
granular[ly] one chooses to define the categories, anywhere from three to seven different
approaches followed when a defendant dies during the pendency of a direct appeal of a
conviction.” Hernandez, 118 N.E.3d at 113–14 (collecting cases). Six automatically
                                            - 11 -
dismiss appeals as moot,9 sixteen allow substitution so that the appeals can continue in
some fashion after defendants die,10 and courts in six other states addressing the issue
have dismissed appeals as moot while also indicating that in certain circumstances they
might allow appeals to continue.11

                                             1. Dismissal

        States that have opted to dismiss appeals as of right from convictions after
defendants die typically have done so for reasons of jurisdiction and mootness.
Regarding the first consideration, a number of state courts reason that jurisdiction of a
criminal appeal ends upon a defendant’s death. For instance, in Delaware, a statute
provides that causes of action based upon penal statutes do not survive the death of the
appellant, Del. Code Ann. tit. 10, § 3701, and Delaware courts have determined that this
statute deprives them of jurisdiction if a defendant dies during an appeal as of right from
a conviction. See Perry v. State, 575 A.2d 1154, 1156 (Del. 1990). Massachusetts has a
Rule of Appellate Procedure that provides for substitution when a party dies during the
pendency of an appeal, but this rule applies only in civil cases, Mass. R. App. P. 30, and
the Supreme Judicial Court of Massachusetts has cited this limitation on the substitution
rule as one reason for its refusal to allow an appeal to continue after a defendant dies.
See Hernandez, 118 N.E.3d at 122. Courts in Idaho and South Carolina have also
indicated that their rules of appellate procedure allowing substitution when a party dies
during an appeal are limited to civil cases and cannot generally serve as a basis for
exercising jurisdiction over a criminal appeal after a defendant dies, Korsen, 111 P.3d at
132; State v. Anderson, 314 S.E.2d 597, 597 (S.C. 1984). But the Supreme Court of
Idaho has suggested that it might allow an appeal to continue if it challenges a restitution
order, Korsen, 111 P.3d at 133. In Arizona, a statute requires courts to dismiss any
pending appeal upon the death of a criminal defendant, Ariz. Rev. Stat. Ann. § 13-106,

        9
          Wheat, 907 So. 2d at 464; Perry, 575 A.2d at 1156; Dodelin, 319 S.E.2d at 911; Merket v.
State, 935 N.E.2d 316, 316 (Ind. Ct. App. 2010); Hernandez, 118 N.E.3d at 121; Bixby, 723 S.E.2d at
841.

        10
           Ark. R. App. P. Crim. 1(c); Carlin, 249 P.3d at 762–63; Perez, 2016 Ark. at 1; Dorsey v. State,
868 So. 2d 1192, 1194 n.2 (Fla. 2003); State v. Pickens, 388 P.3d 901, 901 (Haw. Ct. App. 2016); State v.
Belt, 381 P.3d 473, 475 (Kan. 2016); Surland, 895 A.2d at 1044–45; Payton, 2019 WL 1292182, at *10;
Benn, 274 P.3d at 51; Brass, 325 P.3d at 1258; State v. Cassidy, 197 A.3d 86, 91 (N.J. 2018); Salazar,
945 P.2d at 1003–04; State v. Bradley, 2018-Ohio-631, 2018 WL 986267, at *1 (Ohio Ct. App. 11th Dist.
Trumbull County 2018); Beaudoin, 182 A.3d at 1010; Christensen, 866 P.2d at 535–37; State v. Devlin,
267 P.3d 369, 375 (Wash. App. Ct. 2011); State v. Lao Jin, No. 2015AP224-CRNM, 2016 WL 8653204,
at *1 (Wis. Ct. App. Nov. 16, 2016).

        11
          Reed, 435 P.3d at 1051; Trantolo, 549 A.2d at 1074; Korsen, 111 P.3d at 132–33; Royce, 577
S.W.2d at 616; Peters, 537 N.W.2d at 164; Bevel, 717 S.E.2d at 795–96.

                                                  - 12 -
although again, at least one appellate court in Arizona has suggested that it may still have
authority to hear appeals for relief from restitution orders brought by a deceased
defendant’s heirs, Reed, 435 P.3d at 1051.

       Regarding mootness, courts in Connecticut, Georgia, Indiana, Kentucky,
Massachusetts, and Michigan have dismissed appeals after explaining that resolving
appeals on the merits after defendants have died cannot afford practical relief to the
parties. State v. Trantolo, 549 A.2d 1074, 1074 (Conn. 1988); State v. Dodelin, 319
S.E.2d 911, 911 (Ga. Ct. App. 1984); Whitehouse v. State, 364 N.E.2d 1015, 1016 (Ind.
1977); Royce v. Com., 577 S.W.2d 615, 616 (Ky. 1979); Hernandez, 118 N.E.3d at 122–
23; People v. Peters, 537 N.W.2d 160, 164 (Mich. 1995).

       The courts that require dismissal of appeals in all cases often cite the lack of
specific constitutional or statutory authority to proceed:

              We do not see that the dismissal of the appeal, without more, denies
       any rights granted or protected by the statutes or the constitutional
       provisions. Such rights were personal to and exclusively those of the
       defendant. Although a criminal conviction carries a definite “fall-out” that
       extends beyond the person of the defendant, we are aware of no right to be
       free of such, even if such conviction be erroneous. I may no more appeal
       my brother’s conviction than I may enter his guilty plea.

Whitehouse, 364 N.E.2d at 1016, quoted with approval in Hernandez, 118 N.E.3d at 123.
These courts do not consider the collateral consequences that dismissal of the appeal will
cause for victims, heirs, creditors, and other third parties because such consequences
“could not have been a factor for consideration in the trial proceedings and could not
have been a factor in the appeal, had it been concluded.” Whitehouse, 364 N.E.2d at
1016, quoted with approval in Hernandez, 118 N.E.3d at 123.

                                  2. Allowing the Appeal

       States that allow appeals to continue do so after weighing issues such as
jurisdiction, mootness, and the important role that the right to appeal plays in ensuring the
just outcome of a criminal case. These states have concluded, for various reasons, that
jurisdiction does not end when defendants die. In New Jersey, a rule grants any person
“aggrieved” by a variety of court actions and outcomes in a criminal case, including an
appeal as of right from a conviction, the right to appeal or to seek leave to appeal. N.J.
R.A.R 2:3-2. Arkansas has a rule that explicitly provides for substitution in criminal
appeals after a defendant has died. Ark. R. App. P. Crim. 1(c). Alaska, Hawaii,
Mississippi, Nevada, New Mexico, Ohio, and Pennsylvania all have rules of appellate
procedure allowing substitution that resemble their rules of civil procedure allowing
substitution. However, unlike courts in Idaho and South Carolina, courts in these states
                                            - 13 -
have determined that their substitution rules of appellate procedure apply to criminal
appeals and afford appellate courts jurisdiction even after defendants die during the
pendency of appeals as of right from convictions. Carlin, 249 P.3d at 763; State v.
Makaila, 897 P.2d 967, 972 (Haw. 1995); Gollott v. State, 646 So. 2d 1297, 1304 (Miss.
1994), overruled in part on other grounds by Payton, 2019 WL 1292182; Brass v. State,
325 P.3d 1256, 1258 (Nev. 2014); State v. Salazar, 945 P.2d 996, 1003 (N.M. 1997);
State v. McGettrick, 509 N.E.2d 378, 381 & n.5 (Ohio 1987); Commonwealth v.
Beaudoin, 182 A.3d 1009, 1010 (Pa. Super. Ct. 2018); see also State v. Webb, 219 P.3d
695, 699 (Wash. 2009) (noting that its rule governing substitution in appellate procedures
“plainly is broad enough to encompass a criminal appeal”).12 Some courts that do not
automatically dismiss appeals permit either a personal representative of a deceased
defendant or the State to move for an appeal to continue. See State v. Clements, 668 So.
2d 980, 982 (Fla. 1996) (“Likewise, the State may have an interest in seeing the appeal
completed. Accordingly, we find that when a defendant dies after judgment but during
an appeal, the appellate court may, upon a showing of good cause by the State or a
representative of the defendant, determine that the appeal should proceed.”); Makaila,
897 P.2d at 972; Salazar, 945 P.2d at 1003; McGettrick, 509 N.E.2d at 381.

       As for the issue of mootness, many of these courts do not consider the defendants’
deaths to have mooted certain issues raised in the appeal or, alternatively, some of these
courts find the appeals moot but hold that, for various reasons, the appeals should
continue. As the Supreme Court of Mississippi has explained:

       Upon the death of a defendant pending appeal, it is no more reasonable to
       deem the appeal moot and let the conviction stand, acting as though we
       have heard the appellant’s arguments and found them meritless, than it is to
       automatically follow the abatement ab initio rule and pretend the defendant
       was never indicted, tried and found guilty.

Gollott, 646 So. 2d at 1303–04, overruled in part on other grounds by Payton, 2019 WL
1292182.




       12
           Even federal courts that continue to abate appeals ab initio interpret their relevant rule of
appellate procedure, Fed. R. App. P. 43, to allow substitution in criminal appeals after the death of a
defendant. See United States v. Ajrawat, 738 F. App’x 136, 138 (4th Cir. 2018); Libous, 858 F.3d at 65
n.1; United States v. Chin, 848 F.2d 55, 57 (4th Cir. 1988); see also Wetzel v. Ohio, 371 U.S. 62, 62
(1962) (allowing the wife to substitute in the appeal of a deceased criminal defendant but making no
mention of Rule 43).




                                                 - 14 -
       These courts tend to treat appeals involving fines and restitution as viable even
after defendants die. See Carlin, 249 P.3d at 764 (“Often, there will be a financial
component, such as restitution, to a criminal judgment, and the appeal will thus have
financial consequences for the defendant’s estate.”); Benn, 274 P.3d at 51 (“A challenge
on appeal to the amount of restitution ordered by the sentence, for example, may remain a
viable and concrete issue for which this Court would be able to grant effective relief
between the parties.”); State v. Christensen, 866 P.2d 533, 537 (Utah 1993)); cf. Renwick
v. State, 933 So. 2d 730, 731 (Fla. Dist. Ct. App. 2006) (dismissing an appeal because,
among other reasons, “the court did not impose a fine as part of the sentence, and the
state has represented that it will not file a claim for court costs against the indigent
defendant’s estate”); State v. Pickens, 388 P.3d 901, 901 (Haw. Ct. App. 2016) (same).13

        Other common reasons courts give for allowing these appeals to continue are the
collateral consequences to victims, society, and defendants’ families that result from
dismissing appeals without regard to claims of error. See Carlin, 249 P.3d at 764 (noting
that “[e]ven without monetary consequences, the appeal is not necessarily moot” because
“[t]he interests of the victim and the community’s interest in condemning the offender
persist even after the defendant’s death” and “[t]he appeal has important consequences
for the defendant’s reputation and estate”); State v. Hollister, 329 P.3d 1220, 1226 (Kan.
2014) (“[T]he ‘state and the defendant (not to mention his family) have endured the
strain, the tribulation and the expense of trial and appeal’ and have an interest in the final
determination of a criminal case. Additionally, a ‘right to inherit, or to take by will or
otherwise, may be affected.’” (quoting State v. Jones, 551 P.2d 801, 804 (Kan. 1976)));
Gollott, 646 So. 2d at 1304 (“This rule also protects society, third parties, and the
decedent’s estate from being subjected to the force of a hollow conviction—one that
remains a presumption for having not been fully adjudicated.”), overruled in part on other
grounds by Payton, 2019 WL 1292182; Brass, 325 P.3d at 1258 (“[A] challenge to the
regularity of Nevada’s criminal process presents a live controversy regardless of the
appellant’s status because, as stated in Commonwealth v. Walker, 288 A.2d 741 (Pa.
1972), society has an interest in the constitutionality of the criminal process.”); State v.
Gartland, 694 A.2d 564, 569 (N. J. 1997) (“[I]mportant interests of the defendant or
society at large may be at stake if an erroneous conviction is left standing.”); McGettrick,
509 N.E.2d at 381 (“It is in the interest of the defendant, the defendant’s estate and
society that any challenge initiated by a defendant to the regularity of a criminal
proceeding be fully reviewed and decided by the appellate process.” (footnote omitted));
State v. McDonald, 424 N.W.2d 411, 414 (Wis. 1988) (“Moreover, because collateral
proceedings may be affected by criminal proceedings in which it is alleged that an


       13
          As we mentioned previously, restitution is of such importance that even some courts applying
abatement ab initio allow victims to pursue restitution. Christopher, 273 F.3d at 299; Daly, 313 P.3d at
577.

                                                 - 15 -
individual took the life of another, it is in the interest of society to have a complete
review of the merits of the criminal proceedings.”).

       Several states allow appeals to continue even if a defendant’s death has mooted
the appeal because of other considerations raised in the appeal. For example, courts will
allow the appeal to continue if it deals with “an important issue that is likely to recur,”
Dorsey v. State, 868 So. 2d 1192, 1194 n.2 (Fla. 2003); Hollister, 329 P.3d at 1227;
Gartland, 694 A.2d at 568, if it alleges a “fundamental miscarriage of justice,” Gartland,
694 A.2d at 569, or if it raises “an issue . . . of statewide interest and of the nature that
public policy demands a decision, such as those issues that would exonerate the
defendant,” Hollister, 329 P.3d at 1227. Some courts take a different tack and deem an
appeal not moot if these issues are present. Desai ex rel. Desai v. State, 398 P.3d 889,
891 n.3 (Nev. 2017); Beaudoin, 182 A.3d at 1010.

       Finally, state courts have allowed appeals as of right from a conviction to continue
because they find the right to appeal is far too valuable to be lost at death. See Carlin,
249 P.3d at 762 (“[R]elying on the presumption of guilt after conviction to leave the
conviction intact is contrary to the defendant’s right to appeal.”); Surland, 895 A.2d at
1045; Gollott, 646 So. 2d at 1304 (“Full review is the only way to preserve the
presumption that the conviction is valid until overturned on appeal, while simultaneously
preserving the vested right of the criminal defendant to his appeal.”), overruled in part on
other grounds by Payton, 2019 WL 1292182; McDonald, 424 N.W.2d at 414 (“This right
to an appeal . . . is an integral part of a defendant’s right to a final determination of the
merits of the case. It serves as a safeguard to protect a defendant against errors in the
criminal proceedings. A defendant who dies pending appeal, irrespective of the cause of
death, is no less entitled to those safeguards.”).14

                                       3. Tennessee’s Approach

       Neither party before this Court has advanced any interest—be it an interest of the
defendant’s family, the victim’s family, or society—that would benefit from allowing this
appeal to continue. As was previously noted, the defendant was not fined or ordered to
pay restitution. Nor have we received any notice of a pending wrongful death action
against the defendant or any probate matter related to this case. Neither the defendant’s
attorney nor the State has raised post-judgment “facts, capable of ready demonstration,

        14
             Even Massachusetts and Alabama, states that have chosen the dismissal approach,
acknowledge the extra layer of validity that appeals provide to convictions by requiring that courts
include in the records of an appeal dismissed after a defendant dies “a notation stating that the fact of the
defendant’s conviction removed the presumption of the defendant’s innocence, but that the conviction
was appealed and it was neither affirmed nor reversed on appeal.” Wheat, 907 So. 2d at 464; Hernandez,
N.E.3d at 121 (same).

                                                   - 16 -
affecting the positions of the parties or the subject matter of the action.” Tenn. R. App. P.
14. On the record before us, we conclude the proper resolution of this appeal is
dismissal.15

       We do not by this decision foreclose the possibility that a future appeal may
present circumstances that would warrant its continuation after a defendant’s death. We
simply leave those matters to another case in which such circumstances are presented and
raised. We ask the Advisory Commission on the Rules of Practice and Procedure to
review this opinion and to recommend any changes to the Rules of Appellate Procedure it
deems advisable regarding the procedure the Court of Criminal Appeals should utilize
when a criminal defendant dies during an appeal as of right from a conviction. We prefer
to allow the Rules Commission to consider this issue anew, with input from the various
stakeholders, and not constrain its consideration by our adoption of an interim procedure.
In the meantime, when faced with this issue, the Court of Criminal Appeals should decide
on a case-by-case basis, in light of the record on appeal, and after consideration of the
wealth of authorities from other jurisdictions, whether a particular appeal as of right
should continue after a defendant’s death. A party dissatisfied with the intermediate
appellate court’s decision remains free, of course, to seek review in this Court.




        15
             The State opposed defense counsel’s motion to abate in the Court of Criminal Appeals,
arguing that the doctrine should be abolished. When the intermediate appellate court disagreed, the State
filed an application for permission to appeal in this Court, and in it asserted that the doctrine should be
abolished and the appeal dismissed as moot. Nothing prevented defense counsel from researching the
approaches other states had taken to abatement ab initio and opposing dismissal in favor of another
approach in his brief. Nothing prevented defense counsel from filing a motion to consider post-judgment
facts, pursuant to Tennessee Rule of Appellate Procedure 14, to advise this Court of any currently existing
circumstances in this case that have been viewed by courts in other jurisdictions as a sufficient basis for
continuing an appeal after a defendant’s death. Finally, even after this opinion is released, nothing
prevents defense counsel from filing a petition to rehear, pursuant to Tennessee Rule of Appellate
Procedure 39, along with a motion to consider post-judgment facts, and bringing to this Court’s attention
any currently existing circumstances that other courts have viewed as sufficient to warrant continuation of
an appeal after a defendant’s death. At this time, however, the record is devoid of any interest—be it an
interest of the defendant’s family, the victim’s family, or society—that would benefit from allowing this
appeal to continue. Our review and decision are circumscribed by and based upon the record on appeal.
State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005) (“What is in the record sets the boundaries for what
the appellate courts may review, and thus only evidence contained therein can be considered.” (citing
State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987), perm. app. denied, (Tenn. 1987))). Our
application of this bedrock principle is neither novel nor unjust.

                                                  - 17 -
                                    IV. Conclusion

      For the reasons stated herein, we overrule the judgment of the Court of Criminal
Appeals abating the defendant’s conviction, dismiss the appeal, and reinstate the
judgment of the trial court. Costs of this appeal are taxed to the State of Tennessee for
which execution may issue if necessary.




                                         CORNELIA A. CLARK, JUSTICE




                                          - 18 -
