State v. Rogers

• Decision Date: 24 May 1999
• Citation: 992 S.W.2d 393
• Parties: STATE of Tennessee, Appellee, v. Wilbert K. ROGERS, Appellant.
• Court: Tennessee Supreme Court

Page 393

992 S.W.2d 393

STATE of Tennessee, Appellee, v. Wilbert K. ROGERS, Appellant.

Supreme Court of Tennessee,

at Jackson.

May 24, 1999.

Rehearing Denied June 21, 1999.

Walker Gwinn, Assistant Public Defender, W. Mark Ward, Assistant Public Defender, Tony N. Brayton, Assistant Public Defender (Trial Only), Memphis, for the Appellant.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Nashville, William L. Gibbons, District Attorney General, Amy Weirich, Assistant District Attorney General, Memphis, for the Appellee.

O P I N I O N

DROWOTA, J.

The sole issue in this appeal is whether the common law year-and-a-day rule is currently a viable principle of criminal law in Tennessee. The defendant argued in the Court of Criminal Appeals that his conviction for second degree murder should be set aside because the victim's death did not occur within a year and one day of the fatal stab wounds. The Court of Criminal Appeals rejected the defendant's argument and affirmed his conviction upon finding that the common law year-and-a-day rule was abolished by the Criminal Sentencing Reform Act of 1989. For the reasons that follow, we hold that the rule was not abolished by the 1989 Criminal Sentencing Reform Act. However, the justifications originally supporting recognition of the rule have been eroded by advances in medical science, improved trial procedure, and sentencing reforms. Therefore, we hereby abolish the now obsolete common law year-and-a-day rule. Because the rule has been judicially abrogated by almost every court which has recently considered the issue, we conclude that our decision does not constitute an unforseeable judicial enlargement of a criminal statute; therefore, retrospective application of this decision is not barred by the ex post facto clauses of the state and federal constitutions. ¹ Accordingly, we affirm, on the separate grounds stated, the judgment of the Court of Criminal Appeals which upheld the defendant's conviction of second degree murder. ²

BACKGROUND

The facts relevant to the legal issue in this appeal are few and undisputed. On May 6, 1994, the defendant, Wilbert K. Rogers, stabbed the victim, James Bowdery, with a butcher knife. One of the stab wounds penetrated the victim's heart. Bowdery was treated at the Regional Medical Center in Memphis, and during a procedure to repair the damage to his heart, he went into cardiac arrest. Bowdery was resuscitated, but he had developed cerebral hypoxia, a condition which results from a loss of oxygen to the brain. Bowdery's higher brain functions had ceased, and he remained in a comatose state until August 7, 1995, when he died from a kidney infection, a common complication experienced by comatose patients. Approximately fifteen months had passed from May 6, 1994, the day the defendant stabbed Bowdery, to August 7, 1995, the day Bowdery died. However, according to the undisputed testimony of Dr. Jerry T. Francisco, a pathologist and the medical examiner for Shelby County, the victim's death was caused by cerebral hypoxia "secondary to a stab wound to the heart."

Based upon this proof, the jury found the defendant guilty of second degree murder. ³ Relying upon the common law year-and-a-day rule, the defendant asserted in the Court of Criminal Appeals that his conviction should be modified to criminal attempt to commit murder because the victim's death had occurred more than a year and one day after the stabbing incident. The intermediate court rejected the defendant's argument and held that the Criminal Sentencing Reform Act of 1989 abolished common law defenses including the year-and-a-day rule. Because the Criminal Sentencing Reform Act became effective in 1989, approximately five years before the defendant committed this offense, the intermediate court also rejected the defendant's contention that abolition of the rule violates the ex post facto prohibitions of the state and federal constitutions. Thereafter, we granted the defendant's application for permission to appeal and now affirm, on different grounds, the judgment of the Court of Criminal Appeals.

YEAR-AND-A-DAY RULE

In this appeal, we are called upon to consider, for the first time since 1907, the common law year-and-a-day rule and to determine whether or not it currently is a viable rule of criminal law in Tennessee. The defendant argues that the rule was not abolished by the Criminal Sentencing Reform Act of 1989 because it relates to causation, which, according to the defendant, is an area of homicide law that is still governed by common law principles. While the defendant acknowledges that this Court has the authority to abrogate the rule, he argues that any judicial abrogation of the rule must be prospectively applied to avoid violating the ex post facto provisions of the state and federal constitutions. In response, the State argues that this Court should hold that the rule was abolished by the comprehensive Criminal Sentencing Reform Act of 1989. Alternatively, the State asks this Court to judicially abrogate the rule. The State asserts that a judicial abrogation of the rule can be retrospectively applied since it is not an unforeseeable judicial enlargement of a criminal statute. We begin our analysis of this issue with a brief overview of the historical development of the common law rule.

A. Historical Development

The year-and-a-day rule is deeply rooted in the common law. Its lineage is generally traced to the thirteenth century where the rule was originally utilized as a statute of limitations governing the time in which an individual might initiate a private action for murder known as "appeal of death." See, e.g., United States v. Jackson, 528 A.2d 1211, 1214 (D.C.1987); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771, 773 (1980); People v. Stevenson, 416 Mich. 383, 331 N.W.2d 143, 145 (1982); State v. Vance, 328 N.C. 613, 403 S.E.2d 495, 497 (1991); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501, 503 (1960); State v. Pine, 524 A.2d 1104, 1105 (R.I.1987); Comment, Taming a Phoenix: The Year-And-A-Day Rule in Federal Prosecutions for Murder, 59 U. Chi. L.Rev. 1337, 1338 (1992). The "appeal of death" was a private and vindictive action instituted by an interested party and derived from the Germanic custom of "weregild," or compensation for death. Id. "Appeal of death" actions became obsolete and were abolished in 1819. Lewis, 409 N.E.2d at 772. By the eighteenth century, however, the year-and-a-day rule had been extended to the law governing public prosecutions so that a homicide prosecution could not be brought unless the victim died within a year and one day of the injury. Jackson, 528 A.2d at 1214; Lewis, 409 N.E.2d at 772.

Though the rule began in England, its applicability to criminal prosecutions in this country was acknowledged by the United States Supreme Court in 1894 as follows:

In cases of murder the rule at common law undoubtedly was that no person should be adjudged "by any act whatever to kill another who does not die by it within a year and a day thereafter...." And such is the rule in this country in prosecutions for murder, except in jurisdictions where it may be otherwise prescribed by statute.

Louisville, Evansville, & St. Louis R.R. Co. v. Clarke, 152 U.S. 230, 239, 14 S.Ct. 579, 581, 38 L.Ed. 422 (1894) (citations omitted) (civil wrongful death action). The viability of the rule in Tennessee was recognized in Percer v. State, 118 Tenn. 765, 777, 103 S.W. 780, 782 (1907), in which this Court, quoting Wharton on Homicide, stated: "[i]n murder, the death must be proven to have taken place within a year and a day from the date of the injury received." Sixty-seven years passed before the rule was next mentioned by the Court of Criminal Appeals. See Cole v. State, 512 S.W.2d 598, 601 (Tenn.Crim.App.1974) ("The common law provides that death must ensue within a year and a day from the infliction of the mortal wound to constitute punishable homicide."). Our research of reported cases reveals that the rule was most recently invoked by a defendant in a 1995 decision of the Court of Criminal Appeals, State v. Ruane, 912 S.W.2d 766, 774 (Tenn.Crim.App.1995). In Ruane, as here, the intermediate court opined that the common law rule had been abolished by enactment of the 1989 Criminal Sentencing Reform Act. Id. Interestingly, the discussion of the rule in each of these cases appears to be dicta. It was not a ground upon which the decision rested. Despite the paucity of case law, both parties to this appeal agree that the year-and-a-day rule was a part of the common law of this State.

Three justifications are ordinarily given for the common law rule. The first and most often cited justification is that thirteenth century medical science was incapable of establishing causation beyond a reasonable doubt when a great deal of time had elapsed between the injury to the victim and the victim's death. Therefore, it was presumed that a death which occurred more than a year and one day from the assault or injury was due to natural causes rather than criminal conduct. See State v. Ruane, 912 S.W.2d 766, 774 (Tenn.Crim.App.1995) ; People v. Snipe, 25 Cal.App.3d 742, 102 Cal.Rptr. 6, 7 (1972); Jackson, 528 A.2d at 1216; Jones v. Dugger, 518 So.2d 295, 296 (Fla.Ct.App.1987); State v. Cross, 260 Ga. 845, 401 S.E.2d 510, 511 (1991); People v. Carrillo, 164 Ill.2d 144, 207 Ill.Dec. 16, 646 N.E.2d 582, 584 (1995); Lewis, 409 N.E.2d at 773; Stevenson, 331 N.W.2d at 145; State v. Gabehart, 114 N.M. 183, 836 P.2d 102, 105 (1992); Vance, 403 S.E.2d at 495; State v. Hefler, 310 N.C. 135, 310 S.E.2d 310, 313 (1984); State v. Sandridge, 365 N.E.2d 898, 899 (Ohio Ct.C.P.1977); Ladd, 166 A.2d at 506; Pine, 524 A.2d at 1106.

Second, it has often been said that the rule arose from the early function of the jury as a reporter of the happenings of the vicinage. Even if expert medical...