         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

               STATE OF TENNESSEE v. ANDREW NEAL DAVIS

                               Criminal Court for Davidson County
                                         No. 2001-A-391



                       No. M2002-02375-CCA-R3-CD Filed July 9, 2004



JOHN EVERETT WILLIAMS, J., separate concurring opinion.


         I concur in the results reached by the lead opinion but write separately to amplify some of
my concerns. The prosecution has placed the conviction for aggravated child abuse of a child under
the age of six in peril through mistakes, inadvertence, or neglect. There exists no evidence of
intentional misconduct on the part of the District Attorney General’s office. I hasten to add that this
District Attorney General’s office is not an abuser of the power or processes used to prosecute crimes
in its jurisdiction. Although I have voted to affirm this conviction, I feel I must add a word of
warning to others who may wish to rely upon my decision. At first glance, the practice of amending
an indictment without the defendant’s consent at such a late date is looked upon with disfavor. The
practice suggests that someone was inattentive to the process and comes dangerously close to
violating principles of fundamental fairness. It is akin to changing the rules in the middle of the
game, a game which is played by professionals in which inches determine the winner and loser. This
competent defense counsel did not appear shaken or surprised by the State’s amendment. Indeed,
I have determined trial counsel’s trial strategy was not changed in the least. That is the main reason
I have chosen to affirm this conviction. However, I am mindful of the time trial counsel takes in
explaining to a client what has just transpired in court. Imagine explaining to a client that after being
put to trial once on what was a Class B felony, the client is now facing a Class A felony with a
potential for greater punishment. This could have taken away valuable time which counsel could
have used to ready for the trial which was about to begin moments later. The impact could have
been great upon a trial counsel that was not as prepared or strong as the one in this case.

       I must confess I do not feel strong or confident with my decision in this case. I have carefully
weighed and balanced the competing interests, principles, and arguments that lie at issue in this
matter. I concluded that the late amendment was injudicious and the potential for prejudice to this
defendant is great. Victims of crime under the age of six and defendants deserve greater attention
be paid to the process by which their perspective rights are insured. After long and careful
consideration, I have concluded that no prejudice has endured to this defendant.
        It is not enough for me to say that greater punishment is always prejudice to the defendant
when the indictment, as presented in this case, clearly contained the age of the victim. Some will
see my decision as fundamentally unfair and cry foul, which I think is understandable. Some will
see no problem in the amendment, declaring it a mere technicality and proclaiming that any other
result would be a miscarriage of justice. My decision is somewhere between these two arguments.

       For sure, I see a mistake that should not have been made and could have been corrected many
days before, thereby lessening the potential of prejudice to this defendant. Perhaps our supreme
court will provide guidance to all concerned. If not, the State should heed my concern and be ever
more vigilant and attentive to the details of the matters entrusted to their care. For justice under our
system is not only through a just verdict but through the process used to ensure a just verdict.




                                                        ____________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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