State v. Smith

Decision Date29 March 1995
Citation906 S.W.2d 6
PartiesSTATE of Tennessee, Appellee, v. Leonard Edward SMITH, Appellant.
CourtTennessee Court of Criminal Appeals

Larry S. Weddington, Bristol, J. Robert Boatright, Kingsport, for appellant.

Charles W. Burson, Attorney General and Reporter, Nashville, Christina S. Shevalier, Assistant Attorney General, Nashville, H. Greeley Wells, Asst. District Attorney General, Blountville, for appellee.

OPINION

WADE, Judge.

The defendant, Leonard Edward Smith, has filed an application for an extraordinary appeal pursuant to Tenn.R.App.P. 10 requesting review of orders entered by the Criminal Court of Johnson County (1) denying his "Motion to Dismiss for Lack of Venue Jurisdiction," (2) denying his counsel's "Motion to Withdraw as Counsel of Record," and (3) denying his "Motion for Recusal of Trial Judge." The defendant contends that he is entitled to an extraordinary appeal pursuant to Tenn.R.App.P. 10 because "the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review."

The state has filed a response, arguing that the trial court's denial of the motion to dismiss for lack of venue and the motion for recusal could be fully litigated on direct appeal after the entry of judgment. Tenn.R.App.P. 3. As to the motion to withdraw as counsel, the state seeks to distinguish the holding in State v. Jones, 726 S.W.2d 515, 520-21 (Tenn.1987):

A lawyer aggrieved by the necessity of accepting an appointment to represent an indigent criminal defendant may accept the appointment and, at the same time that he or she diligently pursues the defense of the client, may seek a Rule 10 review of the propriety of the trial judge's decision in making the appointment. The basis for the Rule 10 application is that the lawyer, denied the right of review of whether it is appropriate for him to represent the defendant until after the trial and in the normal appellate procedure, loses a right he can never regain. See State v. Willoughby, 594 S.W.2d 388 (Tenn.1980). On the other hand, if the lawyer refuses the appointment and is adjudged in contempt, that judgment is final and appellate review is limited to a Rule 3 appeal, as in the instant case.

In either event, the lawyer who questions the propriety of the appointment has the burden of showing that [a valid basis for withdrawal] exists. Of course, for appellate review of that issue an adequate record must be made in the trial court. It is incumbent upon the trial judge to give lawyers a reasonable opportunity to make a record on that issue....

The state has not contested the statement of facts offered by the defendant in this application to appeal. On March 1, 1995, this court granted a limited extraordinary appeal. Each side has been allowed the opportunity to supplement the record, cite additional authority, and present further argument.

A brief history is in order. The victims, John Pierce and Novella Webb were killed in Sullivan County. The defendant, who asked for and received a change of venue to Hamblen County, was convicted on two counts of felony murder. He received a life sentence for the murder of Pierce and the death penalty for the murder of Webb. On the first direct appeal, the Tennessee Supreme Court affirmed the conviction and the life sentence for the murder of Pierce but reversed the conviction for the murder of Webb for two reasons: an improper joinder of offenses and prosecutorial misconduct during final argument. See State v. Smith, 755 S.W.2d 757 (Tenn.1988). Upon retrial, the defendant was again convicted for the felony murder of Novella Webb and again sentenced to death. In State v. Smith, 857 S.W.2d 1 (Tenn.1993), the opinion released on the second direct appeal, our supreme court affirmed the conviction but vacated the death penalty on two grounds:

(1) the jury was improperly allowed to consider the life sentence imposed for the Pierce murder in deliberating whether the defendant should receive the death penalty; and

(2) the felony underlying the felony murder was improperly used as an aggravating circumstance. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992).

While a majority of the court rejected the defendant's claim that venue should have been changed from Hamblen County, the place of both the first and second trials, former Justice Daughtrey wrote separately in her concurring and dissenting opinion that "the need for another change of venue ought to be carefully reassessed." Id. at 26.

In response to the expression of concern by Justice Daughtrey, the trial court ordered a second change of venue, this time from Hamblen County to Johnson County. The defendant filed a motion to dismiss for lack of venue in Johnson County and also sought the recusal of the trial judge. Defense counsel asked permission to withdraw. The trial judge denied relief on all requests.

Our grant of the extraordinary appeal was based upon the allegation that the trial court, at least on the question of venue, had "so far departed from the accepted and usual course ... as to require immediate review." Tenn.R.App.P. 10(a). Absent an authoritative ruling, the defendant asserted that he would have "lost a right or interest that may never be recaptured." State v. Willoughby, 594 S.W.2d 388, 392 (Tenn.1980). Certainly, potential error could be avoided by the grant of this extraordinary relief, error which might ultimately cause even further delay in this protracted proceeding.

I

As his first claim on this Rule 10 appeal, the defendant contends that because he did not consent to the venue change, as required by Tenn.R.Crim.P. 21(a), the Criminal Court of Johnson County had no jurisdiction to proceed. The applicable rule provides that "[i]n all criminal prosecutions the venue may be changed upon motion of the defendant, or upon the court's own motion with the consent of the defendant, if it appears to the court that, due to undue excitement against the defendant in the county where the offense was committed or any other cause, a fair trial probably could not be had." (Emphasis added). Venue is jurisdictional in this state. The accused has the right to be tried in the county in which the crime has been committed. Tenn. Const. Art. 1, § 9; Tenn.R.Crim.P. 18; State v. Morris Ray, No 01C01-9201-CC-00025, 1993 WL 65841 (Tenn.Crim.App., at Nashville, March 11, 1993); perm. to appeal denied, (Tenn.1993).

The pertinent facts on the venue issue are apparently uncontested. Due to considerable pretrial publicity in the Tri-Cities area, the defendant asked for a venue change from Sullivan County. The trial court initially denied the motion but, after an unsuccessful attempt to impanel a jury, granted the request, ruling that "Hamblen County would be the closest place that [the trial] should go." The defendant consented to the change.

The defendant was convicted by a Hamblen County jury and sentenced to death for the Webb murder. Our supreme court reversed the conviction and remanded for a new trial. Before the second trial, the defendant unsuccessfully sought to change venue from Hamblen County. When convicted a second time and again sentenced to death, the defendant appealed, contending, among other things, that the trial court had erred by failing to change venue for the second trial. The supreme court affirmed the conviction but reversed the death penalty and remanded for a third sentencing hearing.

Now, the defendant claims that the trial court erred by granting a change of venue to Johnson County, a county adjacent to Sullivan County and more closely located than Hamblen County. The venue right, whether by Rule 21 or by constitutional mandate, entitles the defendant to a trial in the county in which the crime occurred. Here, of course, that is Sullivan County. Although I have departed from the majority opinion on this issue, I will nonetheless attempt to accurately state their view.

Pertinent portions of the procedural rule are as follows:

Rule 21. Change of Venue.--(a) In all criminal prosecutions the venue may be changed upon motion of the defendant, or upon the court's own motion with the consent of the defendant, if it appears to the court that, due to undue excitement against the defendant in the county where the offense was committed or any other cause, a fair trial probably could not be had.

* * * * * *

(c) In a multi-judicial circuit a change of venue shall be to the nearest county in the judicial circuit in which the prosecution is pending where the same cause for change of venue does not exist. If the same cause for change of venue exists in all other counties in the judicial circuit, the venue shall be changed to the nearest county where the same cause for change of venue does not exist.

(d) In a single-county judicial circuit the venue shall be changed to the nearest county where the same cause for change of venue does not exist.

(e) If in the opinion of the court there are two (2) or more adjoining counties, or counties about equidistant, to which the case might be removed under the provisions of this rule, the court shall determine to what county the cause shall be removed.

(f) If a change of venue is ordered, the clerk shall make out a full and complete transcript of the record and proceedings in the cause, and transmit the same, together with the indictment and all other papers on file, to the clerk of the receiving court, which transcript shall be entered on the minutes of the receiving court.

* * * * * *

(i) The receiving court shall take cognizance of the cause, and proceed therein to trial, judgment, and execution, in all respects as if the indictment had been found in that court.

* * * * * *

(k) All fines and forfeitures in such cases go to the county in which the indictment was found, and judgment must be rendered accordingly. The fees of all jurors and witnesses, on being properly certified by...

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