State v. Chambers, No. E2002-01308-CCA-R3-CD (Tenn. Crim. 3/25/2004)
| Decision Date | 25 March 2004 |
| Docket Number | No. E2002-01308-CCA-R3-CD.,E2002-01308-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. JAY CHAMBERS. |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Scott County; No. 7547, E. Shayne Sexton, Judge.
Appeal Dismissed.
John A. Beaty, Huntsville, Tennessee (on appeal), and Max Huff, Oneida, Tennessee (at trial), for the appellant, Jay Chambers.
Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and Lori Jones and John W. Galloway, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The defendant, Jay Chambers, was convicted of one count of rape. The trial court imposed a Range I sentence of ten years. In this appeal, the defendant asserts that a former sheriff's deputy should not have been permitted to sit as a juror; that the trial court erred by permitting members of the jury to separate during a break; and that he was denied the effective assistance of counsel. Because the defendant's motion for new trial was untimely and the issues, even if meritorious, would not warrant a dismissal of the charge, the interests of justice do not require waiver of the timely filing of the notice of appeal. Accordingly, the appeal is dismissed.
In December of 1998, the victim, fifteen-year-old A.H.,1 visited the residence of her friends, Tammy and Robin Chambers, intending to spend the night. After changing into her pajamas, the victim, who had joined her friends on the porch to listen to music, began to dance. The defendant, who is the father of Tammy and Robin Chambers, had been drinking and asked to see the victim's breasts. The victim refused and later, as the victim lay on a trampoline with her friends "looking at the stars," the defendant rubbed her stomach. The victim pushed his hand away and demanded that he stop. After the defendant returned to the interior of the house, Tammy and Robin warned the victim not to allow the defendant to touch her.
Later in the evening, the victim asked for beer and the defendant accommodated her request. According to the victim, she shared three beers with Tammy and Robin, drank two shots of tequila, and then smoked marijuana with the defendant, claiming that she thought it was a cigarette. At trial, the victim claimed that the defendant asked her to perform oral sex and she refused. The victim testified that she did not leave the residence following this encounter because she "figured [the defendant] was just drunk and would not try [any]thing." After going to sleep on a cot in the living room, the victim awoke upon experiencing a pain between her thighs and discovered that the defendant had penetrated her vagina. Her shirt and bra were pulled away and her pants and underwear were around her left ankle. The victim directed the defendant to stop but he had pinned her to the cot with his knee. According to the victim, the defendant told her not to worry because he was using a condom. When the defendant finished, he went to bed. The victim woke her friends and claimed that she had been raped. Because there was no telephone at the Chambers' residence, the victim went to a neighbor's house to call 911. After making a statement to police, the victim was taken to the emergency room and examined. The victim testified that later, Tammy informed her that Robin claimed that she was awake during the sexual assault and "heard everything."
Scott County Deputy Donnie Phillips, who responded to the call, described the victim as "crying, nervous and scared." After taking the victim's statement, Deputy Phillips arrested the defendant. The defendant, who smelled of alcohol and had slurred speech, denied having raped the victim.
At trial, Dr. Janet Wolfer, who examined the victim in the emergency room, testified that the victim complained of pain in her genital area, her upper abdomen, and her chest. In a pelvic examination, Dr. Wolfer found that the victim's vagina was swollen, red, and inflamed. Dr. Wolfer discovered a laceration to the vagina, which she described as "consistent with a forceful sexual episode." It was her opinion that the injuries could not have been caused by "normal non-violent sexual intercourse." A toxicology examination of the victim was negative for alcohol and marijuana.
Shay Silcox and Justin Gilreath, friends of the victim, testified as defense witnesses that the victim had given conflicting accounts of the offense. Ms. Silcox claimed that the victim denied being raped and Gilreath testified that the victim had informed him that the rape did not occur inside the defendant's residence.
The defendant's daughters, Tammy and Robin, also testified for the defense. Both denied either drinking or smoking marijuana on the night of the offense. According to Robin, the victim was angry with the defendant because he refused to give her any beer. Robin insisted that she was sleeping less than a foot from the victim and would have heard any assault. Similarly, Tammy contended that she slept only inches from the victim's head and heard nothing until the victim asked for the flashlight so that she could find her way to the outhouse. Tammy recalled that when the police arrived, she awakened her father, who was passed out on his bed, fully clothed.
On November 17, 1999, the defendant was convicted of rape. Five months later, the trial court imposed a sentence of ten years' incarceration. Approximately two weeks later, the defendant filed a notice of appeal. There was no motion for new trial. The defendant voluntarily dismissed his appeal in June of 2000. In November of 2000, he filed a pro se motion for new trial. Approximately sixteen months later, the defendant, through counsel, filed a second motion for new trial which was amended on the next day. A hearing was held on the motion for new trial on the following day. The defendant filed a second notice of appeal on April 29, 2002, and, in August of the same year, the trial court entered an order denying the motion for new trial.
Initially, the state argues that the motion for new trial was not timely filed. Tennessee Rule of Criminal Procedure 33(b) provides that a motion for new trial must be filed "within thirty days of the date the order of sentence is entered." Tenn. R. Crim. P. 33(b). This provision is mandatory and may not be extended by the trial court. Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). In consequence, a trial court has no jurisdiction to hear or determine the merits of an untimely motion for new trial. Martin, 940 S.W.2d at 569 (citing State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1981); Massey v. State, 592 S.W.2d 333, 334-35 (Tenn. Crim. App. 1979)). A motion for new trial which is not timely filed is a nullity. State v. Blunkall, 731 S.W.2d 72, 74 (Tenn. Crim. App. 1987) (citing State v. Lane, 689 S.W.2d 202 (Tenn. Crim. App. 1984); State v. Williams, 675 S.W.2d 499 (Tenn. Crim. App. 1984)). The trial judge's erroneous consideration of a motion for new trial not timely filed will not validate the motion. Martin, 940 S.W.2d at 569.
Because the untimely motion for new trial was a nullity, it cannot toll the thirty-day period for filing a notice of appeal. See State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987); State v. Timothy Wayne Henderson, No. 01C01-9801-CC-00001 (Tenn. Crim. App., at Nashville, Oct. 21, 1998). In consequence, the notice of appeal filed by the defendant in April of 2002, over two years after the imposition of sentence, is untimely. The timely filing of a notice of appeal is not, however, a prerequisite to the jurisdiction of this court. This court may waive the requirement in the interests of justice. Tenn. R. App. P. 4(a). Thus, the question is whether the interests of justice in these circumstances require waiver of the timely filing of the notice of appeal.
It is well-established that an appellate court may not consider the issues raised in an untimely motion for new trial unless they would result in dismissal of the case. See Tenn. R. App. P. 3(e) (); Martin, 940 S.W.2d at 569 (); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Here, the defendant has raised three issues on appeal. Two address the composition and activities of the jury and one addresses the effectiveness of his trial counsel. These issues, if decided in the defendant's favor, would warrant a new trial but would not result in dismissal of the case. Thus, the issues could not be entertained on appeal due to the failure to file a timely motion for new trial. Tenn. R. App. P. 3(e); State v. Williams, 675 S.W.2d 499 (Tenn. Crim. App. 1984). Because the defendant has failed to raise any issue that would warrant dismissal, it is our view that the interests of justice do not require a waiver of the timely filing of the notice of appeal. Accordingly, the appeal is dismissed.
Furthermore, the defendant would not have been entitled to relief on the merits of the issues. The defendant's first complaint of error is that he was denied the right to trial by a fair and impartial jury because juror David Terry, while employed as a deputy with the Scott County Sheriff's Department, had...
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