### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 2000 S ession
STATE OF TENNESSEE v. JAMES THOM AS JEFFERSON Appeal from the Circuit Court for Davidson County No. 92-C-1372 Walter C. Kurtz, Judge

No. M1997-00115-SC-R11-PC - Filed August 25, 2000

This case is before us upon a jury’ s resentencing of the defendan

t, James Thomas Jeffe

rson, on his conviction for premeditated first degree murder. In the original appeal, the Court of Criminal Appeals affirmed the conviction, vacated the sentence, and remanded the matter to the trial court for resentencing. On remand, the defendant requested a new jury trial on the merits in addition to the already-ordered

resentencing. The trial court denied the request for a new trial. Aft er a new heari ng, the jury fixed a

sentence of life imprisonment. The defendant appealed of right, challenging the trial court’s overruling of his motion for a new trial on the merits. Relying on the “law of the case” doctrine, the Court of Crimi nal Appeals affirmed the trial court’s judgment. We granted the defendant’s application for permission to appeal and now hold that the Court of Criminal Appeals properly determined that the law of the case doctrine barred the trial court from granting Jefferson’s motion for a new trial. The Court of Appeals is, therefore, affirmed.
Tenn. R . App. P. 11 Appeal by P ermission; Judgm

ent of the Court of Cr

iminal A ppeal s Affirmed
A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., F RANK F. D ROWOTA , III, J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined. Jeffrey A. DeVasher, Nashville, Tennessee for the a ppellant, James Thomas Jefferson.
Paul G. Summers, A ttorney Gen eral and Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney Genera l, Victor S. Johns on, III , District Attorney, and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION-2-

This case is before the Court upon the jury’s res en tencing of the defendant to life imprisonmentfor first degree premeditated murder. The defendant contends that the trial cour t erred in overruling his motion for a new trial on guilt or innocence b efore consi dering resen tencing. For the reasons stated below, we conclude that the t r ial court did not err in overruling the defendant’s motion.
We begin with a summary of the proceedings. The homicide that led to this prosec ution occurred June 15, 1968, in Nashville. The defendant was first tried in 1969; this ended in a mistrial

. In the secondtrial, held in January 1971, the defendant was convicted of first degree murder and was sentenced to ninety-nine

years in the penitentiary

. After lengthy

post-trial litiga

tion in both the state and federal courts , the United States D istrict Co urt forthe Middle District of Tennessee granted habeas corpus relief

and vacated the conviction. The defendant was subsequently

re-indicted on July 24, 1992.
Trial began in August 1993, and at the conclusion of the State’s proof, the trial court dismissed the felony mur d er (robbery) count on the ground that it was duplicitous of the felony murder (larcen y) count. At the appropriate point, the trial court instructed the jury, stating the elementsfor each of the four first degree murder counts (three felony murder co unts and on e premeditated

murder count). Additionally, the trial court instructed the jury on the lesser-included offense of second de gree murder. The trial court informed the jury that if it found the de fendant guilty of first degree murder, sentencing was to be accomplished “by setting his sentence at life or a specific term of years of from twenty year s to life.” The jury returned a verdict finding the defendant guilty of premeditated

first degree m

urder and sente

nced him to forty

years impr

isonment.
Because the sen ten cin g sta tut e had been decl ared unc ons tit uti ona l, t he o nly le gal sentence on a conviction for first degree murder was life imprisonment. Miller v. State, 584 S.W.2d 758, 765 (Te nn. 1979). Accordingly, on August 20, 1993, the day following the trial, the State moved t o correct the ju dgmen t. In its mot ion, the State conte nded that the only

sentence possible

for first degree murder was a life sentence, so that the forty-y ear sentence imposed by the jury was, therefore, invalid. Th e State asked the trial court to correct the judgment by entering a sentence of life imprisonment. In response, the defendant mov

ed for an order

compelling the Sta

te to submit a sentencing j udgm ent form reciting the forty-y ear sentence imposed by the jury . The trial court granted the Sta

te’s motion and modif

ied the sentence

by imposing a

term of life impris

onment.
The defendant appealed the c onviction and sentence. The Court of Criminal Appeals rejected the challenges to th

e conviction but fo

und the original s

entence of fort

y yea rs to be ill egal an d th erefore void. It recognized that once a jury is dischar ged its verdict cannot be amende d o r corrected by the trial court as to the grade of the offense or the sentenc e imposed. The Court of Criminal Appeals concluded that the trial court did not have the authority to change the jury 's verdict from forty y

ears to life impris

onment.
The Court of Crimina

l Appeals’s opinion

specifically

held as follows:-3- Since the jury found

the appellant guilty of premeditated murder and the evidence contained in the record supports the verdict, the verdict of the jury fin

din g the appellant gu

ilty of preme

ditated murder is affirmed. However, this ca se must be remanded to the trial court for a new senten cing hearing.
Statev . Jefferson , 938 S.W.2d 1, 3-5 (Tenn. Crim. App. 1996). The defendant’s application for permission to appeal to this Court was denied.
On remand to the trial court, the defendant filed a motion to impanel a jury for t

he purpose of determining his guilt o r innocence. Following a hearing, the trial court denied this motion. On July 14, 1997, a jury

was impaneled for the sentencing hearing. The jury sentenced the defendant to life imprisonmen

t.
On appeal from this se

ntencing hear

ing, th e Court of Criminal Appeals affirmed the trial court’s denial of a jury trial as to the defendant’s guilt or innocence. Relying upon the “la w of the case” doctrine, the Court of Criminal Appeals held that the trial court was bound by the intermediate court’s previous decision affirming the conviction and remandi ng the case so lely for resent encing.
In Memphis Publ’g Co. v. Tennessee Petroleum Underg round Storage Tank Bd. , 975 S.W.2d 303 (Tenn. 1998), we addressed the “law of t he case” doctrine. The following principles quoted from Memphis Publ’g Co. govern the outcome in the pending case:

The phrase “law of

the case” refers to a legal doctrine which generally prohibits reconsideration of issues that have already been decided in a prior appeal of the same case. In other words, under the law of the case d

octrine, an appe

llate court's decision on

an issue of law is binding in later

trials and appea

ls of the same cas

e if the facts on the second trial o

r appeal are substantially th e same as the facts in the first tr

ial or appeal. The doctrine applies to issues that were actually before the appe

llate court in the f

irst appeal and to

issues that were necessarily decided

by implication. The doctrine doe s not apply to dicta.
The law of the case doctri ne is not a constitutiona l mandate nor a limitation on the power of a court

. Rather, it is a longstanding discretionary

rule of judicial practice which is based on the common sense recognition that issues pr evi ous ly li tig ate d an d de cid ed b y a court of competent jurisdiction ordinarily need not be revisited. This rulepro mot es t he fi nal ity a n d efficiency of the judicial pro

cess, avoids indefinite relit igation of the same issue, fosters consistent results in the same litigation, and assures the obedience of lower courts to the decisions of appellate courts.-4- Therefore, when an initial app eal results in a remand to the trial court, the decisi

o n of the appellate court establishes the law of the case which generally must be followed upon remand by

the trial court, and by an

appellate court if a second appeal is taken from the judgment of the trial court entered after remand. The re are l imited circumstances w hich may justify reconsideration of an issue w hich was [an] issue decided in a prior appeal: (1) the evidence offered at a tria l or hearing after remand was substantially differe nt from the evidence in the initial proceeding; (2) the prior ruling wa s clearly erroneous and would result in a manifest injust

ice if allowed to stand; or (3) the prior decision is contrary to achange in the controlling law which has occurred between the first and second appeal. Memphis Publ’g Co. , 975 S.W.2d at 306 (internal citations omitted).
Jefferson’s case falls under neither the first nor the third exception to the law of the cas e doctrine. The only possible exception in which Jefferson’s case could fall is the second exception; that is, whether “the pr

ior ruling was c

learly er roneous andwould result in a ma nifest injustice if allowedto stand.” Id. (emphasis added). This exception requir es a two part showing. First, a defendant must show that the prior decision was clearly erroneous. If the defendant succeeds, he or she must then prove tha

t the clearly

erroneous deci

sion “would result i

n a manifest injusti

ce if allowedto stand.” Thus, to prevail under this exception Jeffersonm ust show that the Court of Criminal Appeals’s ruling was both clearly erroneous and would lead to manifest injustice. We must first decide, therefore, if the

C ourt o f Crim inal A ppeal s’s de cisio n was “ clear ly erron eous. ” In answering this question we turn to the precedent of this Court. We find the issue resolved by our decision in State v. Cook , 816 S.W.2d 322 (Tenn. 1991).
In Cook, the trial court, pu rsuant to Tenn. Cod

e Ann. § 40-35-201 (b), now repeal e d , instructed the jury as to the defendant ’s possible sentences as a Range I offender when the c ourt should have instructed the jury as to the defendant’s pos sible sentences a s a Range I I offen der. We held that such an error was prejudicial, and we remanded the cause to the trial court for a new trial.
In this case, the trial court erroneously instructed the jury under a statute already

found to be unconstitutional.

Such a situ ation is an alogo us to Co ok . Indeed, the Court of Criminal Ap

peals should have relied on Cook

and remanded the case for a new trial. We find, therefore, that the Court of Criminal Appeals’s decision was clearly erroneous be cause the c ourt failed to follow the precedent of thi

s Court. Having determined that the Court of Criminal Appeals’s decision was clearly erroneous, we must next determine if th

e decision would r

esult in manifest injustice if allowed to stand. A lthough Jefferson does not specific ally addre ss this issue, he con

tends that if th

e jury had been given the proper instruction as to the

sentence for fi

rst degree murde

r, it is possible

that the jury would have convicted him of the lesser included offense of second degree murder.1 As previously no ted, Jefferson was tried and convicted of first degr ee murder in 1971. His convi ction was subsequently

vacated by the Unit

ed States Dist

rict Court f

or the Middle Distri

ct of Tennessee. -5- We f i nd Jefferson’s co

ntention without mer

it, for at no time dur

ing the 1993 trial

did Jefferson suggest to the jury that the killing could have constituted second degree murder. The trial judge, nonetheless, instr

ucted the jury

as to the elements of second degree murder, and we conclude that the jury had, indeed, the opportunity to convict Jefferson of se cond degree murder. Moreover, after reviewin g the record, w

e fin d that the evidence adduced at trial overwhelmingly

supports Jefferso

n’s conviction for

first degree m

urder. Inde

ed, in the long history of this case, Jefferson has been twice c onvicted by

a jury for f

irst degree murder. 1 Accordingly, we find that no rational jury could have found Jefferson guilty of second degree murder.
For these reasons, we find that the Court of Criminal Appeals’s decis ion did not result in manifest injustice . This case, ther efore, does not f

all under the second exception to the law of the case doctrine, and the

Court of Criminal Ap

peals properly

affirmed the tri

al c ourt’s denial of Jefferson’s motion

for a new trial.
For the reasons articulated abo ve, the Court of Cri

minal Appeals

properly affirmed the trial court’s denial of J efferson’s motion for a new trial. The Court of Criminal Appeals is, therefore, affirmed.
The costs of this appeal are taxed to the defendant, James Thomas Jefferson, for which execution may issue.

___________________________________ ADOLPHO A. B IRCH, JR., JUSTI CE