              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                    FILED
                             OCTOBER 1998 SESSION
                                                                  December 31, 1998

                                                                  Cecil W. Crowson
STATE OF TENNESSEE,     )                                        Appellate Court Clerk
                        )
         Appellee,      )                 No. 01C01-9711-CR-00538
                        )
                        )                 Davidson County
v.                      )
                        )                 Honorable Walter C. Kurtz, Judge
                        )
JAMES THOMAS JEFFERSON, )                 (Resentencing: First Degree Murder)
                        )
         Appellant.     )



                                 DISSENTING OPINION



              I respectfully dissent in this case. I believe that through an unfortunate

misapplication of the law, the defendant was wrongly denied a new trial as to the issue

of his guilt. Therefore, I believe that the law of the case doctrine should not be applied

and that we should grant the defendant a new trial.



              I need not detail in this opinion the tortuous path of this case. The offense

occurred in 1968. In the defendant’s 1993 trial, the court applied the 1968 law which

provided that the jury decide both guilt and punishment. The trial court instructed the

jury that for first degree murder, the jury could impose a specific term of years from

twenty years to life imprisonment. The jury found the defendant guilty of first degree

murder and imposed a forty-year sentence.



              However, the Tennessee Supreme Court had previously held that the

statute under which the defendant was sentenced was unconstitutional and that the

valid sentencing statute for first degree murder provided a sentence of life
imprisonment. See Miller v. State, 584 S.W.2d 758, 762 (Tenn. 1979). Thus, the

defendant received an illegal sentence.



              In an attempt to correct the matter, the trial court imposed a life sentence.

On appeal, this court held that only a jury could impose the sentence. State v.

Jefferson, 938 S.W.2d 1, 21-22 (Tenn. Crim. App. 1996), app. denied (Tenn. Nov. 25,

1996). However, it affirmed the first degree murder conviction upon its determination

that in the light most favorable to the state, the evidence was sufficient to support the

verdict. Id. at 23.



              The majority opinion concludes that this court’s opinion in the earlier

appeal constitutes the law of the case, which is not to be revisited. The majority opinion

sees significance in the fact that the Tennessee Supreme Court denied a further review

in that appeal.   However, I believe that the law of the case doctrine should not be

absolute. If the previous decision was clearly wrong or if manifest injustice would result,

a court may revisit the issue. See Messinger v. Anderson, 225 U.S. 436, 443, 32 S. Ct.

739, 740 (1912), Davis v. Davis, 96 F.2d 512, 515 (D.C. Cir. 1938); Daly v. Volpe, 376

F. Supp. 987, 994 (W.D. W ash. 1974). Also, our supreme court has stated, “This Court

is not committed to all the views expressed in an opinion of the intermediate appellate

courts when we deny discretionary review.” Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn.

1987). In fact, the court has acknowledged that “the sheer volume of intermediate

cases” that it reviews factors into its refusal to be bound by the denial of review.

Meadows v. State, 849 S.W. 2d 748, 752 (Tenn. 1993). Thus, likewise for our

purposes, the fact that our supreme court denied review in the earlier appeal should not

be significant in determining whether or not the law of the case doctrine should apply.



              The problem in the present case is a fundamental one. The defendant

has a constitutional right to trial by a jury. See U.S. Const. amend. IV; Tenn. Const. art.



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I, §§ 6, 9. In fact, our state constitution contemplates that “the jury shall have a right to

determine the law and the facts, under the direction of the court . . . .” Tenn. Const. art.

I, § 19. In this respect, in State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991), our

supreme court stated the following:

                     It is widely perceived by those who observed the
              operations of our trial courts in previous times, when juries had
              the additional responsibility of setting punishment, that often
              they seemed to find guilt of a crime not necessarily most
              strongly suggested by the evidence, but one the punishment
              for which suited their sense of justice for the case.

The court determined that under the statute defining the instruction for the then existing

range of punishment, “if the defendant were to be sentenced to punishments greater

than what the jury finding guilt was instructed would be imposed,” prejudice to the

judicial process would occur. Id. at 327.



              I believe that it is fundamentally unfair and an improper limitation on the

right to trial by jury to instruct a jury with sentencing authority that it has the power to

sentence the defendant to forty years for first degree murder when the actual sentence

for the offense must be life imprisonment. With proper instructions, the jury in the

present case may well have considered second degree murder and a term of forty

years to represent justice in the case. What happened to the defendant is no different

than what happened to the defendant in Cook. I believe that we should give the

defendant the relief he seeks and order a new trial on both the issue of guilt and the

issue of sentencing.



                                                   ________________________________
                                                   Joseph M. Tipton, Judge




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