State v. Al Mutory, M2017-00346-SC-R11-CD

CourtSupreme Court of Tennessee
Writing for the CourtCornelia A. Clark, J.
Citation581 S.W.3d 741
Parties STATE of Tennessee v. Hassan Falah AL MUTORY
Docket NumberNo. M2017-00346-SC-R11-CD,M2017-00346-SC-R11-CD
Decision Date07 August 2019

581 S.W.3d 741

STATE of Tennessee
Hassan Falah AL MUTORY

No. M2017-00346-SC-R11-CD

Supreme Court of Tennessee, AT NASHVILLE.

February 6, 2019 Session
FILED August 7, 2019

581 S.W.3d 743


Cornelia A. Clark, J.

We granted this appeal to determine whether, after the death of a defendant during an appeal as of right from a conviction, the Court of Criminal Appeals should follow our holding in Carver v. State, 217 Tenn. 482, 398 S.W.2d 719 (1966). We conclude that, due to changes in Tennessee’s public policy in the arena of victims' rights, the doctrine of abatement ab initio must be abandoned. Because there is no evidence before the Court that any interest would benefit from allowing the deceased defendant’s appeal to continue, we hold that, in this case, the deceased defendant’s appeal as of right from his conviction should be dismissed.

I. Factual and Procedural Background

In the early hours of the morning on August 31, 2014, while attending a house party in west Nashville, Hassan Falah Al Mutory, the defendant in this case, pulled out a gun and fired it three times. The first two bullets caused no harm, but the third struck another party-goer, Carlos Gomez, in the head. Mr. Gomez died later that day. The defendant was charged with one count of first degree murder.

On September 15, 2016, a jury found the defendant guilty of reckless homicide. On December 7, 2016, the trial court sentenced the defendant to three years of incarceration. He was not required to pay any fees or restitution.

The defendant appealed his conviction, arguing first, that the court erred by admitting a recorded interview at trial and, second, that there was insufficient evidence to find him guilty of reckless homicide. However, before the Court of Criminal Appeals could rule on the matter, on November 1, 2017, the defendant died.

The defendant’s attorney then filed a motion asking the Court of Criminal Appeals to apply the doctrine of abatement ab initio, which this Court adopted in Carver v. State, 217 Tenn. 482, 398 S.W.2d 719 (1966). " ‘Abatement’ is defined as the discontinuance of a legal proceeding ‘for a reason unrelated to the merits of the claim.’ " State v. Burrell, 837 N.W.2d 459, 462–63 (Minn. 2013) (quoting Black’s Law Dictionary 3 (9th ed. 2009)). "Ab initio ’ means ‘[f]rom the beginning.’ " Id. at 463 (quoting Black’s Law Dictionary 5 (9th ed. 2009)). The effect of abatement ab initio "is to stop all proceedings ab initio (from the beginning) and render the defendant as if he or she had never been charged." Timothy A. Razel, Note, Dying to Get Away with It: How the Abatement Doctrine Thwarts Justice & What Should Be Done Instead, 75 Fordham L. Rev. 2193, 2195 (2007). Defense counsel asked the Court of Criminal Appeals to apply the doctrine of abatement ab initio, vacate the defendant’s conviction, and dismiss the indictment.

The State opposed the motion and argued that the doctrine of abatement ab initio "no longer fits within Tennessee’s jurisprudence" due to an amendment to the Tennessee Constitution that provides victims with certain rights during criminal proceedings. See Tenn. Const. art. I, § 35. The Court of Criminal Appeals rejected the State’s argument, pointing out that the Tennessee Constitution does not specifically address the doctrine of abatement ab initio. The Court of Criminal Appeals also opined that "a decision to overturn long-standing

581 S.W.3d 744

Tennessee precedent based upon the weighing of ... competing policies and interests is best left to the legislature." State v. Mutory, No. M2017-00346-CCA-R3-CD (Tenn. Crim. App. Apr. 19, 2018) (order).

The State then applied for permission to appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 11, arguing that "Tennessee should abandon the rule of abatement ab initio, which effectively voids a defendant’s conviction if the defendant dies while a direct appeal is pending" and replace it with "dismissal of the appeal." We granted the State’s application.

II. Standard of Review

The issue in this appeal—whether Tennessee should continue to apply abatement ab initio when a criminal defendant dies during an appeal as of right from a conviction—is a question of law, which we review de novo without a presumption of correctness. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008). The same is true of any issue concerning the scope of appellate review. Peck v. Tanner, 181 S.W.3d 262, 265 (Tenn. 2005). We afford no deference to the legal conclusions of the court below. Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009).

III. Analysis

The doctrine of abatement ab initio is something of a legal curiosity. The Tennessee Court of Criminal Appeals, which has received and disposed of over a thousand matters every year for the past decade,1 receives only a few motions to abate ab initio per year. Although the issue arises infrequently, the parameters and continuing viability of the doctrine are now hotly debated around the country. Compare Payton v. State, 266 So.3d 630, 640 (Miss. 2019) ("[D]eparture from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error."), with United States v. Libous, 858 F.3d 64, 68–69 (2d Cir. 2017) (requiring that courts abate appeals ab initio even though the consequences of abatement ab initio "can surely be devastating").

This debate has risen to the forefront because the doctrine has been applied in a number of high-profile criminal cases where the persons convicted died while their appeals were pending. See Tim E. Staggs, Note, Legacy of a Scandal: How John Geoghan’s Death May Serve As an Impetus to Bring Abatement Ab Initio in Line with the Victims' Rights Movement, 38 Ind. L. Rev. 507 (2005) (discussing the abated conviction of a child molester); Eric Levenson & Holly Yan, Aaron Hernandez’s Murder Conviction Cleared after Suicide, CNN (May 9, 2017), (discussing the abated conviction of a murderer); 2

581 S.W.3d 745

Shaheen Pasha, U.S., Lay Estate Ink $12M Pension Settlement, CNN: Money (Sept. 7, 2006, 4:15 PM), (discussing the abated conviction of a former Enron chairman). Not surprisingly then, in recent years, courts around the country have been asked to reconsider the doctrine and determine whether the justifications originally supporting its adoption remain valid, particularly in light of other changes in the legal landscape concerning the rights of victims. This appeal provides us with an opportunity for reconsideration as well.

A. Abatement Ab Initio

Abatement ab initio is a court-made doctrine, but the origin of this doctrine is not entirely clear. Commonwealth v. Hernandez, 481 Mass. 582, 118 N.E.3d 107, 111 (2019) (noting that there is "little or no evidence of [abatement ab initio] prior to the late nineteenth century." (quoting Bevel v. Commonwealth, 282 Va. 468, 717 S.E.2d 789, 792 (2011) )). One of the earliest cases in the United States to discuss and apply the concept of abatement in a criminal case, O'Sullivan v. People, 144 Ill. 604, 32 N.E. 192 (1892), did not apply the doctrine of abatement ab initio. In O'Sullivan, the defendant died during the pendency of his writ of error, and the defendant’s attorneys and his estate asked the appellate court to decide the matter and enter its judgment nunc pro tunc3 for a date before the defendant died. Id. at 192. The O'Sullivan court refused, stating that "[a] judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist." Id. at 193. Before reaching this conclusion, the court observed:

Judgments in civil cases ... are for the recovery or the denial of something either specifically or in the form of damages of some pecuniary value.... But in criminal cases, under indictments for felonies, the sole purpose of the action is not to give the people anything, but to punish the defendant in his person....

Id. at 192. The court then abated the writ of error. Id. at 194. But the court did not abate the conviction.

Following O'Sullivan, many state appellate courts, including this Court, limited abatement to the appeals process only and left intact the convictions of deceased defendants. See, e.g., Wiggins v. State, 154 Tenn. 83, 289 S.W. 498, 499 (1926) (stating that when a criminal defendant died while his appeal was pending his "case" was "abated"); State v. Martin, 30 Or. 108, 47 P. 196, 196 (1896) ("In [prior] cases the defendant died after the cause had been submitted to the appellate court for decision, and ... the courts refus[ed] to proceed any further in the matter or pronounce any decision in the cases. It follows that this appeal must abate, and it is so ordered."); see also Alexander F. Mindlin, Note, "Abatement Means What It Says": The Quiet Recasting of Abatement, 67 N.Y.U. Ann. Surv. Am. L. 195, 207 (2011) ("Traditional courts abated in several different ways, none of which connoted the erasure of the defendant’s guilt."). But see Overland Cotton...

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