               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT NASHVILLE                   FILED
STATE OF TENNESSEE,                             )
                                                                       June 18, 1998
                                                )     C.C.A. NO. 01C01-9806-CC-00244
       Appellee,                                )
                                                                      Cecil W. Crowson
                                                )     RUTHERFORD COUNTY
                                                                    Appellate Court Clerk
VS.                                             )     (No. F-38145-A Below)
                                                )
DONDIE EUGENE TIDWELL,                          )     The Hon. James K. Clayton
                                                )
       Appellant.                               )     (T.R.A.P. 9 Appeal)


                                          ORDER



              The defendant has filed application for permission to appeal pursuant to

T.R.A.P. 9 from an order of the Rutherford County Circuit Court.            In opposing the

application, the state relies on its response in State v. Paul Dennis Reid, Jr., No. 01C01-

9805-CC-00213.       After reviewing the pleadings, we grant the defendant’s Rule 9

application in the present case and affirm as modified the trial court’s order.



              The defendant is charged with first-degree murder. Additional criminal acts,

not relevant to the issue presented in this application, were charged in the indictment. The

state has filed a notice of intent to seek the death penalty against the defendant in the

event he is convicted of first-degree murder.



              The trial court entered an order compelling the defendant to give written

notice if he intends to introduce evidence of his mental condition during the penalty phase.

In the order, the trial court stated the following:



       The Defendant is hereby ordered to comply with Rule 12.2 of TN. Rules of
       Crim. Procedure via written notice to use the testimony of any expert
       concerning his mental capacity in any phase of the trial, including the
       penalty/sentencing phase. This written notice shall be delivered to the
       State’s attorney no later than ASAP.



The defendant seeks permission to appeal this order.



              Previously, in State v. Paul Dennis Reid, Jr., No. 01C01-9805-CC-00213
(Tenn. Crim. App., at Nashville, June 10, 1998), this Court entered an order on the

identical issues raised in the present application. In Reid, the defendant sought to appeal

an order of the Davidson County Criminal Court, issued by Judge Cheryl Blackburn, and

an order of the Montgomery County Circuit Court, issued by Judge John H. Gassaway, III.

Upon granting the applications, this Court affirmed the order of the Montgomery County

Circuit Court and affirmed as modified the order of the Davidson County Criminal Court.

In so doing, we ordered the trial courts to implement the following procedure for giving

notice of intent to introduce evidence of a mental condition by a defendant at the penalty

phase:



       1.    If the defendant intends to introduce mental condition
             testimony at a penalty phase, he must file written notice
             thereof no later than an appropriate date set forth by the trial
             court. The notice shall include the name and professional
             qualifications of any mental condition professional who will
             testify and a brief, general summary of the topics to be
             addressed that is sufficient to permit the State to determine the
             area in which its expert must be versed.

       2.     If the defendant files a notice that he intends to introduce
              mental condition testimony at the penalty phase, the defendant
              shall be examined by a psychiatrist or other mental health
              professional selected by the State, if requested. The State’s
              examination shall take place within a reasonable time frame
              set forth by the trial court. The report of that examination and
              the expert report of any examination initiated by the defendant
              (if same exist) shall be filed under seal with the Court before
              the commencement of jury selection. The court-appointed
              mental condition professional conducting the examination for
              the State shall not discuss his/her examination with anyone
              unless and until the results of the examination are released by
              the Court to counsel for the State and counsel for the
              defendant following the guilt phase of the trial.

       3.     The results of any examination by the State expert and the
              defense expert (if same exist) shall be released to the State
              only in the event that the jury reaches a verdict of guilty of first
              degree murder and only after the defendant confirms his intent
              to offer mental condition evidence in mitigation. After the
              return of such a verdict, the defendant shall file a pleading
              confirming or disavowing his intent to introduce mental
              condition testimony at a penalty phase. If the defendant
              withdraws his previously-tendered notice, the results of any
              mental condition examinations concerning the defendant will
              not be released to the State. The reports of any examinations
              (whether by the State or defense experts) concerning the
              defendant shall be released to the State immediately after the
              filing of the pleading confirming the earlier notice. At the same
              time, the report of the State’s expert shall be released to
              counsel for the defendant. Even if the defendant confirms his


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              intent to offer mental condition evidence, the defendant may
              withdraw his notice of intent to raise a mental condition at any
              time before actually introducing such evidence, and, in that
              event, neither the fact of notice, nor the results or reports of
              any mental examination, nor any facts disclosed only therein,
              will be admissible against the defendant.



State v. Paul Dennis Reid, Jr., No. 01C01-9805-CC-00213, Slip Op. at 8.



              In the present case, the trial court merely ordered the defendant to comply

with Rule 12.2 by providing the state with written notice of his intent to use the testimony

of any expert concerning his mental capacity in any phase of the trial, including the penalty

phase, “ASAP.” The order does not set forth any guidelines. Accordingly, the trial court’s

order is modified such that it shall comply fully with the procedure approved by our opinion

in Reid. Costs of this appeal are taxed to the state.



                                                         PER CURIAM

                                                         Peay, J., Welles, J., Woodall, J.




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