                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                  AT NASHVILLE
                           Assigned on Briefs July 22, 2008


                   STATE OF TENNESSEE v. JESSIE EDWARD WEST

                     Appeal from the Circuit Court for Lincoln County
        Nos. S0700029 and S0700015 Robert L. Holloway, Jr., Judge, by Interchange



                          No. M2007-02732-CCA-R3-CD - Filed October 6, 2008



D. KELLY THOMAS, JR., J., dissenting.


         I respectfully dissent from the result reached by the majority and do so because of my
concerns that the defendant’s guilty pleas were entered absent any waiver of the conflicts of interest
that are apparent from a review of the record in this case. Although not raised by either party, I
conclude that plain error exists with respect to the District Attorney General and Circuit Court
Clerk’s failure to recuse themselves from these proceedings. I do so pursuant to Rule 13(b)(2) and
(3) of the Tennessee Rules of Appellate Procedure which grants this court the discretion to review
any issue not presented for review in order “(2) to prevent injury to the interests of the public, and
(3) to prevent prejudice to the judicial process” and Rule 52(b) of the Tennessee Rules of Criminal
Procedure which provides “[w]hen necessary to do substantial justice, an appellate court may
consider an error that has affected the substantial rights of an accused at any time, even though the
error was not . . . assigned as error on appeal.”

         The record reveals that one of the victims in this case was the Circuit Court Clerk of Lincoln
         1
County. After the District Public Defender withdrew from representation based upon his
professional relationship with the court clerk, the defendant filed motions to recuse the District
Attorney General and the trial judge, in addition to a motion for change of venue addressing the court
clerk’s participation in the case. The original trial judge recused himself from the proceedings in this
case due to his professional relationship with the court clerk. Neither the District Attorney General
nor the Circuit Court Clerk withdrew from involvement.

         I acknowledge that it appears from the record that the defendant waived any issues related


         1
             The judgment reflects that the clerk is the co-recipient of the restitution, with her husband as the named
victim on the indictment .
to these pending motions with the entry of the guilty pleas, by acquiescing in a sentencing hearing
prosecuted by the District Attorney General’s office, and by failing to raise the issues on appeal.
Contemporaneous to the entry of the judgments, the trial judge sitting by interchange entered orders
nunc pro tunc to the date of the entry of the guilty pleas denying the motion to recuse and motion for
a change of venue. However, the record is notably silent regarding any waivers of the conflicts of
interest.

        Furthermore, the record also reveals that the court clerk’s employee, a deputy clerk, issued
an arrest warrant for arson and set the defendant’s bond at $50,000, which far exceeds the $10,000
maximum allowed to be set by a court clerk for a felony that does not involve a crime against a
person. Tenn. Code Ann. § 40-11-105(b)(2). The same deputy clerk issued a subsequent arrest
warrant for vandalism valued at over $60,000 related to the same offense and set an additional bond
of $60,000, also exceeding the statutory authority of Tennessee Code Annotated § 40-11-105(b)(2).
The defendant was unable to make any bond.

        Relevant to the participation of the District Attorney General in this case, our supreme court
stated in State v. Culbreath, 30 S.W.3d 309, 315 (Tenn. 2000) that “an actual conflict or an apparent
conflict may exist anytime a lawyer cannot exercise his or her independent professional judgment
free of ‘compromising influences and loyalties.’” Id. (citing State v. Tate, 925 S.W.2d 548, 554
(Tenn. Crim. App. 1995)). As explained by the court in Culbreath:

       Government officials must be held to high ethical standards to make certain their
       activities are conducted in the public’s interest. Furthermore, “governments have a
       responsibility to the public to avoid even the appearance of impropriety and to act to
       reduce the opportunities and incentives for unethical behavior by their officials and
       employees.” This is true of the prosecuting attorney because “an appearance of
       impropriety on the part of a government attorney will inevitably harm not only the
       individual attorney, but also the entire system of government that allows such
       improprieties to take place.”

Id. at 316 (quoting Roberta K. Flowers, What You See Is What You Get: Applying the Appearance
of Impropriety Standard to Prosecutors, 63 Mo. L.Rev. 60, 68 (1998)(citations omitted)). Based
upon these considerations, I conclude that the District Attorney General should have recused himself
from these proceedings and, in the absence of such recusal, the trial court should have granted the
defendant’s motion to recuse and sought the appointment of a District Attorney General pro tempore.

        I acknowledge that the court clerks of this state are not governed by a code of professional
conduct specific to their employment. However, by virtue of her status as a government official of
this state, the previously mentioned considerations applicable to the District Attorney General
regarding conflicts of interest and appearances of impropriety should apply equally to the Circuit
Court Clerk. There is nothing in the record that reveals a justification for the Circuit Court Clerk’s
participation in the case. Therefore, I conclude that the Circuit Court Clerk should have recused
herself from the proceedings in this case and sought the appointment of a clerk pro tempore.


                                                  2
       Because I believe the recusals of the District Attorney General and the Circuit Court Clerk
were necessary to preserve the integrity of the judicial process, I respectfully dissent in the result
reached by the majority and would reverse the convictions in this case.




                                                      D. KELLY THOMAS, JR., JUDGE




                                                  3
