# FILED
May 19, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1994 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9406-CR-00197 ) ) Rhea County ) v. ) Honorable Paul A. Swafford, Judg e ) Honorable Thoma s W. Grah am, Judge ) ) (Driving w

hile under the influence of RONNIE W. NAIL, ) an intoxicant and leav ing the scene ) of an accident) Appellant. )
For the Appellant : For the Appellee : Howard L. Upchurch Charles W. Burson P.O. Box 381 Attorney General of Tennessee Pikeville, TN 37367 and Clinton J. Morgan Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 James Michael Taylor District Attorney General and Will Dunn Assistant District A

ttorney General 265 3rd Avenue, Suite 300 Dayton, TN 37321

OPINION FILED: _____________________
JUDGMENTS VACATED AND C ASE REMANDED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Ronnie W . Nail, was convicted in a jury trial in the Circuit Court for Rhea County of dri ving while under

the influence of an intoxicant ( DUI) and leaving the scene of an acci dent, both offenses being misdemeanors. He was sentenc ed to the minimum sentenc e availabl e for a f irst off ense DUI a nd fined two dollars for leaving the scene. He appeals as of rig ht and claims that he was entitled to a new trial because an adeq uate record of the trial proc eedings could not be prepared so as to allow the succ essor judge to rule on hi s motion for new trial. This case has traveled a tortuous route since the defendant's arrest i n 1985 -- a route that we n eed not fully recount here. Unfortunately, the journey does not end here , because we must vacate the judgments of conviction and remand the case f or further proceedings.

The defendant was convicted in March 1989 in a jury trial over which Judge Paul A. Swafford presi ded. On October 19, 1989, Judge Swafford sentenced the defendant and on November 20, 1989, the defendant filed his motion for new tri al. The motion remained pending when Judge Swafford was defeat ed in his reelection effort and Judge Thomas W. Graham was elected to repl ace him beginning September 1, 1990. The motion was heard in J uly 1992 and the order deny ing it was entered i n June 1993.
The issue raised by the defendant s tems from his claim that no recor d of the trial exists. F rom this he asserts that it was impossible for the su ccessor judge to rule upon the motion for new trial and, therefore, that a new trial was required. He relies upon Rule 25(b), Tenn. R. Crim. P., which provides as follows:

After Verdict of Guilt . If by reason of absence, death, sickness or other d isability the judg e before whom the defendant has been tried is unable to perform the duties

to be performed by the court after a ver dict of guilt, any other jud ge regularly sitti ng in or who may be as signed to the court may perform those dutie s. If th e successor judge is s atisfied that he cannot perform those duties b e cause he or she did not preside at the trial or for any other reason, thesuccessor judge may exercise the discretion to grant a new trial.3

In response, the state notes that the rule gives discretion to the judge and asser ts that no abuse of discretion has occur red because the lack of an adequate record for the successor judge to review is attributable to the defendant. Although the def endant’s failure to presen t an adequ ate recor d of the case for appellat e review would be fata l, we believe that the state misapp rehends the obligation rel ative to entry of a v alid judgment, one for which the trial c ourt must approve the ver dict.

At the new trial motion hea ring, the defendant's trial attorney, who no longer represented the defendant, t estified that he did not hire a c ourt reporter to preserve the proceedings at trial because he thoug ht that the state was to pr ovide one for the defendant's misdemeanor trial. He said that when he lear ned in court that a reporter was not prese nt, he asked the circuit co urt clerk, John E. Fine, to record the proceedings and that Mr. Fine did so. He stated that the trial lasted all day and that four or five tapes were us ed. He said that Mr. Fi ne provided the tapes and operat ed the recorder. He testified that after the trial, Mr. Fi ne retained the tapes. He ex plained that he did not need possession of the tapes until the decision to appeal w as made and he indicated that he thought that t he tapes would be made part of the r ecord or court file.

The defendant testified that Mr. Fine made the tapes during the trial and stopped both sides in order to change the tapes. He stated tha t at the end of the trial, Mr. Fine took the tapes and t he recorder out of the courtroom. The defendant said that about a month after he was sentenced, he went to see Mr. Fine at his trial attorne y's request in order to obtai n a copy of the tapes and that Mr . Fine told him that a copy would be furnished if his attor ney made a written req uest.
Mr. Fine testified that he handles many recording tapes for preliminary hearings, but not for trial s. He recalled the tri al attorney asking about tape recording the proceedings and stated that he directed the court officer to get the recorder and set it upon the bench. He said that the officer took the recorder out of the courtroom after the trial. He stated that he did not ever remember taki ng possession of the tapes and4

that he searched diligentl y for them, but to no avail.He also stated that there w as no notation in the rule docket book of there being tapes, so mething he normally would note.
In sum, the tape recordings, if any, of the trial wer e not to be found. The trial attorney testified that although he remembered a lot of the testimony, it was not "with such particular

ity that would be accurate." The defendant was not asked about his recollection. How

ever, the prosecuting attorney stated that he could prepare an accurate statement of the evidence for the court to review , although he acknowledg ed that he could not specifically remember every question. In any event, appar ently no statement of the evidence or other detailed account of the trial pr oceedings was ever produced and the motion for new tr ial was denied.

As for the cause of the lack of a tri al record, the defendant asserts that the judicial system is required to provide a court reporter for every stage of a criminal case and that it was not his dut y either to preserv

e the tapes or otherwise to insure the proper recording of the trial. He relies upon T.C.A. § 40-14-307(a) (1990) which, in pertinent part, then stated:

A designated reporter shall attend every stage of each criminal case before the court andshall reco rd verbati m, by a method pres cri bed or approved by the executive secretary [now administrative director], all proceedings had in open court and such other proceedings a s the judge may direct. However, as the state has noted, the "criminal case" to which the statute refers is narrowly, but specifically, defined in T.C.A. § 40-14-301(2) as "the trial of any criminal offense which is punishable by confinement in the state penitentiar y and any proceeding for the writ of habeas corpus wherein the unlawful confinement is alleg ed to be in a state, county or muni cipal institution . . . ." In this respect, at the ti mes relevant to this case, pe nitenti ary confinement as punis hment w

as the de

fining f eature o f a felony and distinguished i t from a misdemeanor. See T.C.A. § 39-1-103 (repealed1 The same distincti on presentl y exist s in that only a f elony of fense can result

in a penitentiary s entenc e. See T.C.A. § 40-35-104(c)(8) (Sup p. 1996). 5 1989). 1 In other words, a cour t reporter was not pro

vided at state expense for a misdemeanor unless a defendant was unable to afford one based upon indigency , a status not asserted by the defendant. Thus, the obligation to pr ovide the defendant a means to have a verbatim r ecord of the defendant's trial proc eedings did not fall upon the state.

The defendant also asserts that even if he had the responsibility to provide an adequate record, we should excuse his failure to do so. He claims that his counsel sought to have a r ecording of the trial, "had ev ery right to assume" t hat the tapes would be pre served, and could not be faulte d for not antic ipating that Jud ge Swafford would become "unavai lable" without hearing and ruling upon his motion. However, the successor judge saw no legal obligation cast upon the court clerk to take and keep possession of any tapes and concluded th at any failure to preserve or make an appropriate record w as the “fault” of the defendant's trial attorney. We believe that, for appellate purposes, these conclusions are correct und er the record before us.

At this point, we note that the defendant combined his motion for new trial with one for a judgment of acq uittal with the joint pleading purporting to raise seven grounds. However, the last three deal with the central complaint that he was illegally arrested and that the charges and the evidence used again st him flowed from that illegal arrest. The r

ecord establishes that on behalf of the defendant, a court reporter did make a verbatim recor d of the suppression hearing dea ling with the iss ue of the arrest's legality , but a transcript of it w as not submitted to the successor judge for review nor is i

t part of the record on appeal.2 The motion contains the foll owing asserti ons: "1. Tha t the e viden ce c onta ined in the record is insuf ficient as a matter of law to sustai n a convicti on for the of fenses of dri ving under t he infl uence of an intoxica nt and lea ving the sc ene of a n accide nt; 2. That there is no evidence cont ained in t he record to suppo rt the ve rdict r eturned by the jury; 3. That the v

erdict i s contrary

to the l aw and the evi dence; 4. That the stat

e fail ed to prove bey

ond a reasonable dou bt and to a moral certaint y all of the el ements of the offenses of drivi ng under the i nfluence of an intoxi cant and leav ing the scene of an ac cident . . . ." 6 The remaining four grounds in the defendant's motion assail the sufficiency of the evidence. 2 However, the rec ord does not indicate any at tempt by the defendant to prepare a statement of the evi dence that could ordinarily meet the needs for a sufficiency review . The mere claim by the tri al attorney of inaccurate r ecollection did not foreclose him from ultimatel y recalling all

of the evidence that would be necessary for complete rev iew of the issues raised in the defendant's motion. It obviously does not est

ablish that the defendant was unabl e to present such a statement through his own recol lection, that of the former judge, and even that of the prosecutor and witnesses.

In fact, the defendant indicates in his brief that an attempt was not made by including such st

atements as, "For argument's sake, if we assume that the Appel lant could prepare his own statement of evidence, and eventually develop one, the State will most certainly object t

o his recollection of the ev ents." As the state points out i n its brief, there is no basis for imputing such bad faith upo n the state and "it is in the State's best interest to approve a factually correct statement rather than to risk to retry this old case." Ultimately, thoug h, such argument by the defendant on ly goes to show th at the defend ant has f ailed to p repare an appropri ate recor d on appe al for revi ew.

However, the reason for vacating the judgment and remanding this case arose before the case was appeal ed. While the motion for new trial w as pending hearing and resolution, R ule 33(f), Tenn. R. Crim. P., became effective so as to reinstate the thirteenth jur or rule in all pending

actions. See State v. Enochs , 823 S.W.2d 539, 540 (T enn. 1991). Under the thirteenth juror rule, the trial judge has a duty to act as the thirteenth juror to insure that a jury verdict is based upon satisfactory7

evidence, including that it be presented through s ufficiently credible w itnesses. See , e.g. , State v. Carter , 896 S.W.2d 119, 122 (Tenn. 1995). This assessment by the trial judge is a prerequis ite to the entry of a val id judgment. See State v. Burlison , 868 S.W.2d 713, 718 (Tenn. Crim. App. 1993). Absent the pr oper approval of the verdi ct by the trial court, a new

trial must be granted. See State v. Moats , 906 S.W.2d 431, 432, 435-36 (Tenn. 1995). In this respect, we believe that a successor judge’s consideration, pursuant to R ule 25(b), Tenn. R. Crim. P. , of whether the duties of the original judge can be met must include an assessment of his or her ability to act as a thirteenth juror, inclu ding witness credi bility. See State v. Bilbrey , 858 S.W.2d 911, 914 (Tenn. Crim. App. 1993). Therei n lies the problem in this case.

As previously noted, the defendant sought a new tri al on the grounds that there was no evidence t o support the verdict and that the verdict was contrary to the evidence. These grounds adeq uately raised the issue of the trial judge’s functio ning as the thirteenth juror. At that point, the successor judg e would need to determine the extent to which witness credibility was a factor in the case and the extent to which he had sufficient knowledge or records before it in order to decide whether the cred ible evidence, as view

ed by the judge, adequatel y supported the verdic

t. See Bilbrey , 858 S.W.2d at 915. If these determinations could not be made by the successor judge, the verdict could not be appr oved and a new trial s hould have been granted.
Obviously, the defendant had no more obligation than the state to insure that a verbatim record of thi s misdemeanor trial was available. Howev

er, each party bears its own risk

s and responsibilities relative to a success ful conclusion to litiga

tion. In a legal sense, the prosecution has achieved nothing until valid judgments

of conviction are entered upon which the state may execute the sentence. Thu s, as a practical measure, the state was obligated in thi s case to insure either th at the original trial judge rule on the defendant’s motion or that a sufficient r ecord was preserv

ed for the successor judge to r eview for the purpose of fulfill ing the role of thirteenth j uror. Absent the record indicatin g that the defendant somehow unfairl y obstructed the state8

from pursuing either avenu e, there is no issue reg arding assessing “ fault” to the defendant. Rather, it is the fact th at the successor judge di d not have an adequate record of the trial for him to funct ion as the thirteenth juror that prevented him from entering a valid judg ment. Consequently, a new trial must be granted.
In consideration of the foregoing , we hold that the judgments of conviction are vacated and that the case is re manded to the trial court for f urther proceed ings consistent with this opinion.

___________________________ Joseph M. Tipto n, Judge CONCUR:

____________________________ John H. Peay, Jud ge

____________________________ Jerry Scott, Speci al Judge