# FILED
July 23, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE OCTOBER 1996 SESSIO N

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01- 9602-CC-00074 ) ) Rutherford County v. ) ) James K . Clayton, Jr., Judge ) ) (Aggra vated Sexua l Bat tery) ROBER T SCOTT, ) ) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Dicken E. Kidwell John Knox Walkup Attorney at Law Attorney Gen eral & Repor ter 300 East Vine Str

eet 500 Charlotte A venue Murfreesboro, TN 37130 Nashvil le, TN 37243-0497 (App eal O nly) Michael J. Fahey, II Guy R. Dotson, Jr. Assistant Att orney Gener al Attorney at Law 450 James Roberts on Parkway 102 South Maple St reet Nashvil le, TN 37243-0493 Murfreesboro, TN 37130 (Tria l Only) W illiam C. W hitesell, Jr. Distric t Attorney General 303 Rutherford Cou nty Judici al Building Murfreesboro, TN 37130 Thomas F. Jackson, Jr. Assistant D istrict A

ttorney Gener

al 303 Rutherford Cou nty Judici al Building Murfreesboro, TN 37130

OPINION FILE D:________________________________

__ REVERSED AN D REMAND ED FOR A N EW TRIAL
Joe B. Jo nes, Pre siding Jud ge2 

## O P I N I O N

The appellant, R ob ert Scott (de fendant), was convicted of ag gravated sexual batt ery, a Cl ass B fe lony, b y a jury of his peers. The trial cour t, finding the d efendant to be a standard off ender, imposed a Range I sente nce consistingof confinement of eight ( 8) years in the Department of Correct io n. In this C ourt, the defendant ra ises numerous issues. After a thoroug h review of the record, the br iefs of the parties, and the law governi ng the issuespresented for review, it is the opi nion of this Cour t the judgment

of the trial cour t sh ould be reve rse d and thi s ca use r emand ed tothe t ria l co urt fo r a ne w trial. The trial court explici tly ex pressed diss atisfaction w ith the ver dict of the jury , but upheld the verdict when considering the matter as the thirteenth juror. This is the second appeal in this cas e. Initiall y, the tri al court g ranted the defendant
a new tri al because the state failed to tur n over exculpatory evidence before the trial. The state sought and was granted an interlocutor y appeal. Thi s Court rev ersed the judgment of the trial cour

t and remanded the cau se for further pro ceedings. State v. Rober t Scott , Rutherford County No . 01-C-01-9 409-CC-00326(Tenn. Crim. App., Nashvil le, October 4, 1995). The state filed a post-opinion moti on seeking c lar ific ation. This Cour t limited it s action “to vacating the trial court’s order granting a new trial and to remanding this cause to the trial court for its furt her consideration and complete determi nation of the motion for
a new tri al, includi ng its ro le as the thir tee nth ju ror.” The tr ial court w as instruct ed to reinstate the verdi ct of the jury if it denied the motion for a new trial and approved the jury’s verdict as the thirteenth juror. On remand the tri al court deni ed the defendant’s motion for a new trial. The court reluctantlyapproved the verdi ct as the thir teenth juror. When ruling upon the verdi ct of the jury, thetrial cour

t said:
W ell, I d on’t mind tell ing you, Gentlemen, that thi s case has caused me more concern, I guess, than any case I have ever tried. I have had a l ittletime on the bench w here I have t ried cases. I know w hat the Court of C riminal Appeal s has said. A nd I have to accept what they have said as being correct because I don’t believe anyone has theperfect abilit yto see thing s and to know exactly w hat ha ppened with t he exception of the3 people that w ere there at thetime. I bel ieved Si ssy in t his case. I also believed Ms. Scott, and s he test ified about Mr. Scott’s probl ems with ar thritis. I believed the doctor w hen he t estif ied. I didn’t go into that at the fir st motion. I felt like the State had fallen down. I’m no t givingcounsel for thedefense what I felt like were exculpatory statements which were inconsistent statements which would bear on credibil ity. And I’m sor ry I don’ t recall ex actly w hat was covered in cross- examination. Some of thes e ma y have been. It’s been awhile. * * * * I don’t feel that . .

. the Sup reme Court, that the Court of Criminal Appeals expe cts or wants nor do they require the Judge, because he doe sn’t n ecessarily agree with the jury’s verdict, to set it asid e. And I think t hat’s why they req uire the Judge to say , one is the verdict suppor ted by the ev idence. In this case , as I pointed out , the vict im in the case testified. In the argument or in my statement s when it was here before indicated th at I had some -- would liked to hav e heard further from that witness. But I did not take part in the deliber ations with the jury. I don’t k now what they considered in their deliberations. And I can cer tainly under

stand why t h e SupremeCou rt o r th e Co urt of A ppe als, Criminal Appeals, does not wa nt th e Jud ge to s ay, well, t hey just - - I may not be real happy with the verdict, but I do -- I could not -- I cannot in good conscious s ay that the verdi ct was not

supported by the evidence. And I think as th irteenth juror w hen the verdi ct is suppor ted by the evidence that was pr esented at the trial , and the Court of Appeals has ruled as they di d in what I felt like were mistakes, I don’t see that I have a ny alternat ive but to a pprove it. Let the appeal process proceed from here.
Based upon a reading of the foregoing statement made by the trial court, it is

obvious the trial court was confused regarding its duty when acting as the thirteenth juror. The thirteenth j uror rule w as a part of this

state’s jur isprudence for years. In 1978, the Supreme Court a bolished this common law

rule. Stat e v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). Later, the Supreme Court refused to reinstate the rule. State v. Adk ins , 786 S.W.2d 642 (Tenn.1990 ); Stat e v. Johnson , 692 S.W.2d 412 (Tenn. 1985). In 1991, t he thirteenth juror rul e was rei nstated as Rul e 33(f), Tennessee R ules of Crimin al Procedure. This rule states:

The trial cour

t may grant a new tri al followi ng a ver dict of guil ty if it disagr

ees with t he jury abo ut the weig ht of the ev idence. If the trial court grants a new tri al becau se th e verdict is contrary to the weight of the evidence, upon request of either4 party the new

trial shal l be conducted by a different judge.
The Supreme Court has r eferred to this rule as the “ modern day eq uivalent t o the ‘thirte enth juror rule.’” State v. Bl anton , 926 S.W.2d 953, 958 (Tenn. 1996). T he rul e serves two purposes. Fi rst, it acts as a safeguar d against er rors committed by the jury

. State v. Dankworth , 919 S.W .2d 52, 55 (Tenn. Crim. Ap p. 1995). Second, it pre vents a miscarriag e of justice by the jury in reachingthe verdi ct it repor ts to the court

. Id

. Tennessee Rules of Cri minal Procedure 33(f) imposes upo n the trial court “the mandatory duty to ser

ve as the thi rteenth juror in every criminal case.” State v. Ca rter , 896 S.W.2d 119, 122 (Tenn. 1995) . Moreover, the tria l court’s approval of the jury’s verdict as thirteenth jur

or is essent ial to the impos ition of a val id judgment. Id

. When acting as thirteenth juror, the t rial court must independently

weigh the evidence and assess the credibili ty of the witnes ses based upon the o bservatio ns of the court during the t rial. Da nkworth , 919 S.W.2d at 56. The trial cour t sees the w itnesses face to face, hears the witnes ses testify, and observes the witnes ses’ demeanor. Id . In weighi ng the evidence, t he trial court must consider the evidence add uced during the trial, consider any exhi bits int rod uced, reconci le the conflicti ng evidence, and determine the credibili ty of the witne sses. Dankwort h , 919 S.W.2d at 55. The trial cour t must be personallysatisfied w ith the verdi ct. If the trial cour t is not sati sfied with t he verdic t, it is the duty of the trial court to grant the accused a new trial. It is cl ear the trial court felt a new trial shoul d be granted bas ed upo n hi s dissatisfacti on wi t h the testimony of the victi m who apparentl y had gi ven conflict ing statements. Thus, the tria l court was not satisfied with the v erdict. Ho wever , the statements made by thetrial court illustrate the court misunderstood i ts authority and duty
as the thirteenth juror. Thus, this Court must grant thedefendant a new tri al. Stat e v. Moats , 906 S.W.2d 431, 434-35 (Tenn. 1995). The remaining is sues are moot g iven the disposition made in this case. T his Court does not render advisory opinions.

___ ______________________ __________________

_ JOE B. JON ES, PRESIDIN G JUDGE5

CONCUR:

_________________________________________ WILLIAM M. BARKER, JUD GE

_________________________________________ J. STEVEN STAFFORD, SPEC IAL JUDGE