        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 1, 2016

             STATE OF TENNESSEE v. CHRISTOPHER MINOR
                  Appeal from the Circuit Court for Madison County
                       No. 15-167 Roy B. Morgan, Jr., Judge
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              No. W2016-00348-CCA-R3-CD - Filed February 16, 2017
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CAMILLE R. MCMULLEN, J., concurring and dissenting in part.

        I concur with the majority with respect to its resolution of the Defendant‟s
challenge to the sufficiency of the evidence. However, in light of this court‟s holding in
State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. April 7, 2016), perm. app. denied
(Tenn. Aug. 18, 2016), I respectfully disagree with the majority‟s conclusion that the
Defendant has waived his challenge to the constitutionality of the gang enhancement
statute. Generally, a new rule of federal constitutional law is retroactively applied to all
cases, state or federal, pending on direct review or not yet final. See Griffith v.
Kentucky, 479 U.S. 314, 328 (1987) (stating that the “failure to apply a newly declared
constitutional rule to criminal cases pending on direct review violates basic norms of
constitutional adjudication”). Although states are bound by this federal retroactivity
analysis when a new federal rule is involved, state courts are free to determine what
retroactive effect will be given to pronouncements of state law. Meadows v. State, 849
S.W.2d 748, 754 (Tenn. 1993) (citing Great Northern Ry. Co. v. Sunburst Oil & Refining
Co., 287 U.S. 358, 364-65 (1932)). The Tennessee Supreme Court has explicitly held
that “newly announced state constitutional rules will be given retroactive application to
cases which are still in the trial or appellate process at the time such rules are announced,
unless some compelling reason exists for not so doing.” Id. at 754 (citing State v.
Robbins, 519 S.W.2d 799, 800 (Tenn. 1975)). A case announces a new rule when it
breaks new ground or imposes a new obligation on the States or if the result was not
dictated by precedent existing at the time the defendant‟s conviction became final.
Meadows, 849 S.W.2d at 751 (citing Teague v. Lane, 489 U.S. 288, 301 (1989)); T. C. A.
§ 40-30-122 (1995). Although the Tennessee Supreme Court in Meadows declined to
apply the federal standard of retroactivity for post-conviction cases stated in Teague, the
court has not explicitly rejected the analysis in Teague for cases on direct review. See
Meadow, 849 S.W.2d at 755 (“Accordingly, we decline to apply the federal standard of
retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d
334 (1989), and hold that a new state constitutional rule is to be retroactively applied to a
claim for post-conviction relief if the new rule materially enhances the integrity and
reliability of the fact finding process of the trial.”). Therefore, “„the integrity of judicial
review‟ requires the application of the new rule to „all similar cases pending on direct
review.‟” Teague, 489 U.S. at 304 (quoting Griffith, 479 U.S. at 323).

      Significantly, in Bonds, this court addressed the contours of the Tennessee gang
enhancement statute as an issue of first impression. We held, inter alia, as follows:

       that the requirements of Section 40-35-121 are additional elements of the
       underlying criminal gang offenses and the portion of the trial during which
       proof of gang membership and activity is introduced is not merely a
       sentencing hearing but rather is an extension of the guilt phase of the trial to
       which constitutional, statutory, and procedural rules fully apply. Because
       the trial court treated the proceeding as a sentencing hearing, without
       considering the protection afforded by the Confrontation Clause, and
       because the State failed to prove by a preponderance of the evidence that
       the gang expert‟s testimony and the contents of the gang file did not violate
       the Confrontation Clause, we reverse the defendants‟ gang enhancement
       convictions and remand this case for a new trial on the gang enhancement.

Bonds, 502 S.W.3d at 152. Bonds further declared a portion of the gang enhancement
statute unconstitutional and reasoned:
       Section 40-35-121(b) does not contain a nexus requirement. After careful
       consideration, we have concluded that such an omission is constitutionally
       fatal. It simply cannot be maintained that a statute ostensibly intended to
       deter gang-related criminal conduct through enhanced sentencing is
       reasonably related to that purpose where the statute in question is
       completely devoid of language requiring that the underlying offense be
       somehow gang-related before the sentencing enhancement is applied.
       Without a nexus requirement, Section 40-35-121(b) directly advances only
       the objective of harsher treatment of criminal offenders who also happen to
       be members of a criminal gang. Because Section 40-35-121(b) fails to
       even obtusely target gang-related criminal activity, it lacks a reasonable
       relationship to achieving the legitimate legislative purpose of deterring
       criminal gang activity and therefore violates the principles of substantive
       due process.

Id. at 157.

         Given the above holding, there is no question in my mind that Bonds announced
a new rule because it broke new ground and imposed a new obligation on the State. See
e.g., 7 Tenn. Prac. Pattern Jury Instr. T.P.I. — Crim. 39.05(a), Cmt. 1 (noting that “2016

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Tenn. Pub. Acts, ch. 1034, eff. 4/28/16 was enacted as an attempt to remedy [the lack of a
nexus] by amending the definition of „criminal gang‟ to add that it has as one of its
„primary activities the commission of criminal gang offenses,‟ and adding as an element
of enhancement that the criminal gang offense must have been committed „at the
direction of, in association with, or for the benefit of, the defendant‟s criminal gang or a
member of the defendant‟s criminal gang.‟”). At the outset, I recognize that arguing a
lack of a nexus between the facts underlying the instant offense and the Defendant‟s gang
membership is tenuous at best. The Defendant clearly confessed to committing a gang
related crime and testified at trial that he would not have participated in this offense had
he not been ordered to do so by the general of the gang, the Black Peace Stone Nation.
He also testified that he became a member of a gang at the age of thirteen. At the
bifurcated proceeding, the State‟s sole witness had no experience investigating the Black
Peace Stone Nation. He testified that the Black Peace Stone Nation joined with the Vice-
Lords when they were in an area with low membership. He identified another purported
gang member of the Vice-Lords and, based on his criminal record, photos of the
Defendant showing gang signs, and tattoos, established the Defendant as a gang member.
Although these facts are a far cry from Bonds, based on the principles announced in
Teague, Bonds should nevertheless be applied retroactively to the case sub judice and all
other cases pending on direct review or not yet final.

       As a member of the panel that issued Bonds, I recognize that Bonds contained no
analysis of whether it should be applied retroactively. This question should be answered
and will not be resolved with the disposition of this case. See Teague, 489 U.S. at 300
(noting that “[r]etroactivity is properly treated as a threshold question, for, once a new
rule is applied to the defendant in the case announcing the rule, evenhanded justice
requires that it be applied retroactively to all who are similarly situated.”). Moreover,
because the retroactive effect of a constitutional ruling is a purely judicial question, Bush
v. State, 428 S.W.3d 1, 8 (Tenn. 2014), I see no reason to apply traditional principles of
waiver to dismiss this issue. Finally, as a practical matter, I believe it would be
nonsensical to hold that defendants on appeal at the time Bonds was decided or who had
filed their notice of appeal after the gang enhancement statute was declared
unconstitutional are not entitled to the benefit of the ruling. See Teague, 489 U.S. at 304
(quoting Griffith, 479 U.S. at 323-24) (“[B]ecause „selective application of new rules
violates the principle of treating similarly situated defendants the same,‟ we refused to
continue to tolerate the inequity that resulted from not applying new rules retroactively to
defendants whose cases had not yet become final.”); see also State v. Cecil, 409 S.W.3d
599, 608 (Tenn. 2013) (holding that because the defendant‟s case was on direct appeal at
the time State v. White, 362 S.W.3d 559 (Tenn. 2012) was decided, the issue had been
preserved for appeal and the defendant was entitled to the benefit of the ruling); Taylor v.
State, 995 S.W. 78 (Tenn. 1999) (holding that the ground for post-conviction relief arose
when the statute under which the sentences were imposed was declared unconstitutional).



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       For these reasons, I would have reversed and vacated the Defendant‟s convictions
for violating the gang enhancement statute and remanded for a new trial.


                                                _________________________________
                                                CAMILLE R. McMULLEN, JUDGE




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