        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 17, 2016 Session

    STATE OF TENNESSEE v. TONYA LAVETTE CHRISTOHPER
                   Appeal from the Criminal Court for Hamilton County
                            No. 294102   Don W. Poole, Judge



                   No. E2015-02038-CCA-R3-CD – Filed October 6, 2016




JAMES CURWOOD WITT, JR., J., concurring.

              I join in the majority=s disposition of this case. I write separately only to
highlight an apparent precedential conflict that came to light upon pondering footnote three
in the majority opinion.

               In the footnote, the majority notes that “the analysis of the [fourth amendment]
issue would likely be impacted” by State v. Kenneth McCormick, ___ S.W.3d ___, No.
M2013-02189-SC-R11-CD (Tenn. May 10, 2016). In Kenneth McCormick, our supreme
court established “community caretaking” as an exception to the warrant requirement. Id.,
___ S.W.3d at ___, slip op. at 16. The court held that the “community caretaking exception”
will justify a warrantless seizure when

              the State establishes that (1) the officer possessed specific and
              articulable facts which, viewed objectively and in the totality of
              the circumstances, reasonably warranted a conclusion that a
              community caretaking action was needed, such as the possibility
              of a person in need of assistance or the existence of a potential
              threat to public safety; and (2) the officer=s behavior and the
              scope of the intrusion were reasonably restrained and tailored to
              the community caretaking need.

Id. The majority in the present case eschewed a substantive consideration of Kenneth
McCormick because, in addition to otherwise affirming the denial of suppression, such
consideration of Kenneth McCormick would take the court sua sponte beyond the precise,
narrow issue preserved by the certified question, citing and quoting State v. Day, 263 S.W.3d
891, 900 (Tenn. 2008).

               In Day, a certified question case in which a police officer‟s detaining Day was
successfully challenged on Fourth Amendment grounds on appeal, the supreme court refused
to consider the detention as a community caretaking function because such issue was beyond
the scope of the certified question. The court stated, however, that “[r]egret[ably], . . . our
consideration of the stop under the community caretaking exception might well yield a
different outcome.” Day, 263 S.W.3d at 900. Nevertheless, the court declined to consider
this”Aexception” to the warrant requirement, noting the responsibility of the appellee as well
as the appellant in insuring the crafting of an aptly dispositive certified question. Id. 263
S.W.3d at 900 n. 8 (emphasis added).

               This ruling appears to be in conflict with Tennessee Rule of Criminal
Procedure 37(b) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the leading case on the
issue of certified question appeals, as Preston has been interpreted and applied. Rule
37(b)(2)(A) requires the certified question to be dispositive of the case. In Preston, the court
laid out the regimen to be followed in Rule 37 cases and noted that “[m]ost of the reported
and unreported cases seeking the limited appellate review pursuant to Tenn[essee] R[ule of]
Crim[inal] P[rocedure] 37 have been dismissed because the certified question was not
dispositive.” Preston, 759 S.W.2d at 650 (emphasis added). “A basic requirement for a
certified question appeal is that the question actually be dispositive of the case.” State v.
Ledford, 438 S.W.3d 543, 550 (Tenn. Crim. App. 2014). “„Despite that [a] defendant
complied with Rule 37(b)(2)(i) . . . and thereby effectively reserved an appellate issue that the
court and the parties below deemed to be dispositive of the case, we must nevertheless
determine that the issue is, indeed, dispositive.=@ Id. 438 S.W.3d at 550 (quoting State v.
Gregory W. Gurley, No. W2001-02253-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,
Jackson, Aug. 6, 2002)). Because of the dispensatory nature of a certified question appeal
following a guilty plea, the issue of the question‟s being dispositive is a matter of jurisdiction
for the appellate court. Id. at 550. “Essentially, then, „the reviewing court must make an
independent determination that the certified question is dispositive.‟” Id. at 551 (quoting
State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007)). “Appellate review of a properly
certified question of law is permitted only when the certified question addresses a dispositive
issue, [and a]n appellate court is not bound by the trial court‟s determination that an issue is
dispositive.” State v. James O. Gambrell, Sr., No. 01C01-9603-CR-00123, slip op. at 4-5
(Tenn. Crim. App., Nashville, May 7, 1997).

               In the present case, the facts of record bespeak a presentable question whether
the officer‟s approach of the defendant in her vehicle was a proper community caretaking
action pursuant to Kenneth C. McCormick. Even though the trial court, upon a fuller
consideration, might have ultimately decided that the community caretaking exception to the
warrant requirement is inapplicable in this case, that possible eventuality does not control our
threshold jurisdictional question whether the issue certified to us is dispositive. “The
question is dispositive „when the appellate court must either affirm the judgment [of
conviction] or reverse and dismiss [the charges].‟” Dailey, 235 S.W.3d at 134 (quoting State
v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001)).

                Thus, the principle that we should independently determine whether the
certified question is dispositive of the case runs head long into the statement in Day that we
should not consider postulations of law that lie outside the frame of the certified question. I
suspect that this latter principle, which emanates from Preston, was originally intended only
to prevent the appellant from expanding his original legal premise. Indeed, when
exemplifying the idea that the appellate court is “limited to the [issues] passed upon by the
trial judge and stated in the certified question,” the Preston court said, on a Fourth
Amendment issue, “the reasons relied upon by defendant in the trial court at the suppression
hearing must be identified in the statement of the certified question.” Preston, 759 S.W.2d
650. These “reasons” circumscribe the boundaries of the appellate court‟s jurisdiction of the
appellant‟s claim. As such, this limitation does not exclude per se any legal issues implicated
by the record that may be alternatives to the appellee’s position as expressed by the appellant
in the certified question. Of course, it would behoove the appellee to object to a deficiently
framed certified question, see Day, 263 S.W.3d at 900 n.8, but can the appellee be allowed to
confer jurisdiction upon the appellate court by allowing an under-stated certified question to
pass? In State v. Wilkes, 684 S.W.2d 663 (Tenn. Crim. App. 1984), we said, AThis court will
not violate court rules to assume jurisdiction of a matter on agreement of litigants and the
trial court. We will not assume jurisdiction of a question involving the admissibility of
evidence when guilty pleas are entered unless the question makes final disposition of the
case.” Wilkes, 684 S.W.2d at 667; see State v. Bowlin, 871 S.W.2d 170, 173 (Tenn. Crim.
App. 1993) (refusing to overlook the lapses of an appellant in presenting a certified question
on appeal despite that “the state did not argue these procedural failures on appeal” and stating
that because the lapses “go to the very nature of our jurisdiction to hear the case,” the court
would “raise and address the issues sua sponte in order to preserve the integrity and prevent
prejudice to the judicial process”).

              Thus, in the present case, I am not convinced that we are barred from
considering the community caretaking exception to the warrant requirement as an alternative
theory supporting the denial of suppression, especially when, as noted by the majority, the
suppression issue “would likely be impacted by our supreme court‟s recent decision in
McCormick.” That said, suppression was denied in this case, and we are affirming the denial
based upon the legal premise presented. The result is that I may concur in this result without
agreeing that Day would have precluded us from going beyond the narrowly B and
incompletely B framed issue.


                                                           JAMES CURWOOD WITT, JR.
