         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    January 23, 2001 Session

              STATE OF TENNESSEE v. THOMAS J. FAULKNER, JR.

                      Appeal from the Circuit Court for Grainger County
                             No. 3266    Rex Henry Ogle, Judge



                                  No. E2000-00309-CCA-R3-CD
                                         April 17, 2001


JOSEPH M. TIPTON, J., concurring.

         I concur in the results and most of the reasoning in the majority opinion. However, I
respectfully disagree with the view indicated in section VII of the majority opinion that the law is
split regarding the need for supplemental post-trial instructions to be submitted in writing pursuant
to Rule 30(c), Tenn. R. Crim. P. I believe that the Rule and binding precedent require such to be in
writing.

        In State v. Crocker, 697 S.W.2d 362 (Tenn. Crim. App. 1985), during deliberations, the jury
asked a question regarding an issue and the trial court, with agreement from counsel, orally
responded. In considering the defendant’s complaint about the supplemental instruction, this court
stated:
                It is elementary that every word of the judge’s instructions to the jury should
        be in writing and read to the jury. Tenn. R. Crim. P. 30(c).

               Clearly, the trial court’s oral comments to the jury and its failure to personally
        read and deliver to the jury the supplemental charge were highly irregular and
        improper.

Id. at 365.

         In the present case, the majority opinion refers to an unpublished case to indicate that there
is a difference of opinion in this state, citing State v.Tywan Faulk, No. M1999-01124-CCA-R3-CD,
Montgomery County (Tenn. Crim. App. Aug. 31, 2000), app. dismissed (Tenn. Dec. 4, 2000). I
note, though, that the state acknowledged at oral argument that published cases in Tennessee hold
that written instructions are required. I would go further in the analysis. In Faulk, this court based
its conclusion that supplemental instructions may be oral wholly upon State v. Kenneth Patterson
(Pat) Bondurant and Hugh Peter (Pete) Bondurant, No. 01C01-9501-CC-00023, Giles County (Tenn.
Crim. App. May 24, 1996), app. denied (Tenn. Nov. 12, 1996) (concurring in results only).
However, aside from the fact that our supreme court concurred in results only, the Faulk opinion
actually relies upon the minority opinion in Bondurant. Thus, it relies on a case that holds directly
contra to the conclusion reached in Faulk. Faulk does not reflect the controlling law in this state.

        As the majority opinion in the present case states, we need not decide which is the correct
position on this issue. From my perspective, though, this is because the correct position is set by
binding precedent regarding Rule 30(a), which constitutes settled law on the issue.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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