IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 17, 2016 Session

STATE OF TENNESSEE v. TONYA LAVETTE CHRISTOHPER

Appeal from the Criminal Court for Hamilton County

No. 294102 Don W. Poole, Judge

No. E2015-02038-CCA-R3-CD – Filed October 6, 2016

JAMES CURWOOD WITT, JR., J., concurring.

I join in the majority=s disposition of this case. I write separately only to 

highlight an apparent precedential conflict that came to light upon pondering footnote three 

in the majority opinion.

In the footnote, the majority notes that “the analysis of the [fourth amendment] 

issue would likely be impacted” by State v. Kenneth McCormick, ___ S.W.3d ___, No. 

M2013-02189-SC-R11-CD (Tenn. May 10, 2016). In Kenneth McCormick, our supreme 

court established “community caretaking” as an exception to the warrant requirement. Id., 

___ S.W.3d at ___, slip op. at 16. The court held that the “community caretaking exception”

will justify a warrantless seizure when

the State establishes that (1) the officer possessed specific and 

articulable facts which, viewed objectively and in the totality of 

the circumstances, reasonably warranted a conclusion that a 

community caretaking action was needed, such as the possibility 

of a person in need of assistance or the existence of a potential 

threat to public safety; and (2) the officer=s behavior and the 

scope of the intrusion were reasonably restrained and tailored to 

the community caretaking need. 

Id. The majority in the present case eschewed a substantive consideration of Kenneth 

McCormick because, in addition to otherwise affirming the denial of suppression, such 

consideration of Kenneth McCormick would take the court sua sponte beyond the precise, 

narrow issue preserved by the certified question, citing and quoting State v. Day, 263 S.W.3d 
891, 900 (Tenn. 2008). 

In Day, a certified question case in which a police officer‟s detaining Day was 

successfully challenged on Fourth Amendment grounds on appeal, the supreme court refused 

to consider the detention as a community caretaking function because such issue was beyond 

the scope of the certified question. The court stated, however, that “[r]egret[ably], . . . our 

consideration of the stop under the community caretaking exception might well yield a 

different outcome.” Day, 263 S.W.3d at 900. Nevertheless, the court declined to consider 

this”Aexception” to the warrant requirement, noting the responsibility of the appellee as well 

as the appellant in insuring the crafting of an aptly dispositive certified question. Id. 263 

S.W.3d at 900 n. 8 (emphasis added).

This ruling appears to be in conflict with Tennessee Rule of Criminal 

Procedure 37(b) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the leading case on the 

issue of certified question appeals, as Preston has been interpreted and applied. Rule 

37(b)(2)(A) requires the certified question to be dispositive of the case. In Preston, the court 

laid out the regimen to be followed in Rule 37 cases and noted that “[m]ost of the reported 

and unreported cases seeking the limited appellate review pursuant to Tenn[essee] R[ule of] 

Crim[inal] P[rocedure] 37 have been dismissed because the certified question was not 

dispositive.” Preston, 759 S.W.2d at 650 (emphasis added). “A basic requirement for a 

certified question appeal is that the question actually be dispositive of the case.” State v. 

Ledford, 438 S.W.3d 543, 550 (Tenn. Crim. App. 2014). “„Despite that [a] defendant 

complied with Rule 37(b)(2)(i) . . . and thereby effectively reserved an appellate issue that the

court and the parties below deemed to be dispositive of the case, we must nevertheless 

determine that the issue is, indeed, dispositive.=@ Id. 438 S.W.3d at 550 (quoting State v. 

Gregory W. Gurley, No. W2001-02253-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., 

Jackson, Aug. 6, 2002)). Because of the dispensatory nature of a certified question appeal 

following a guilty plea, the issue of the question‟s being dispositive is a matter of jurisdiction 

for the appellate court. Id. at 550. “Essentially, then, „the reviewing court must make an 

independent determination that the certified question is dispositive.‟” Id. at 551 (quoting 

State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007)). “Appellate review of a properly 

certified question of law is permitted only when the certified question addresses a dispositive 

issue, [and a]n appellate court is not bound by the trial court‟s determination that an issue is 

dispositive.” State v. James O. Gambrell, Sr., No. 01C01-9603-CR-00123, slip op. at 4-5 

(Tenn. Crim. App., Nashville, May 7, 1997).

In the present case, the facts of record bespeak a presentable question whether 

the officer‟s approach of the defendant in her vehicle was a proper community caretaking 

action pursuant to Kenneth C. McCormick. Even though the trial court, upon a fuller 

consideration, might have ultimately decided that the community caretaking exception to the 

warrant requirement is inapplicable in this case, that possible eventuality does not control our 

threshold jurisdictional question whether the issue certified to us is dispositive. “The 
question is dispositive „when the appellate court must either affirm the judgment [of 

conviction] or reverse and dismiss [the charges].‟” Dailey, 235 S.W.3d at 134 (quoting State 

v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001)).

Thus, the principle that we should independently determine whether the 

certified question is dispositive of the case runs head long into the statement in Day that we 

should not consider postulations of law that lie outside the frame of the certified question. I 

suspect that this latter principle, which emanates from Preston, was originally intended only 

to prevent the appellant from expanding his original legal premise. Indeed, when 

exemplifying the idea that the appellate court is “limited to the [issues] passed upon by the 

trial judge and stated in the certified question,” the Preston court said, on a Fourth 

Amendment issue, “the reasons relied upon by defendant in the trial court at the suppression 

hearing must be identified in the statement of the certified question.” Preston, 759 S.W.2d 

650. These “reasons” circumscribe the boundaries of the appellate court‟s jurisdiction of the 

appellant‟s claim. As such, this limitation does not exclude per se any legal issues implicated 

by the record that may be alternatives to the appellee’s position as expressed by the appellant 

in the certified question. Of course, it would behoove the appellee to object to a deficiently 

framed certified question, see Day, 263 S.W.3d at 900 n.8, but can the appellee be allowed to 

confer jurisdiction upon the appellate court by allowing an under-stated certified question to 

pass? In State v. Wilkes, 684 S.W.2d 663 (Tenn. Crim. App. 1984), we said, AThis court will 

not violate court rules to assume jurisdiction of a matter on agreement of litigants and the 

trial court. We will not assume jurisdiction of a question involving the admissibility of 

evidence when guilty pleas are entered unless the question makes final disposition of the

case.” Wilkes, 684 S.W.2d at 667; see State v. Bowlin, 871 S.W.2d 170, 173 (Tenn. Crim. 

App. 1993) (refusing to overlook the lapses of an appellant in presenting a certified question 

on appeal despite that “the state did not argue these procedural failures on appeal” and stating 

that because the lapses “go to the very nature of our jurisdiction to hear the case,” the court 

would “raise and address the issues sua sponte in order to preserve the integrity and prevent 

prejudice to the judicial process”). 

 

Thus, in the present case, I am not convinced that we are barred from 

considering the community caretaking exception to the warrant requirement as an alternative 

theory supporting the denial of suppression, especially when, as noted by the majority, the 

suppression issue “would likely be impacted by our supreme court‟s recent decision in 

McCormick.” That said, suppression was denied in this case, and we are affirming the denial 

based upon the legal premise presented. The result is that I may concur in this result without 

agreeing that Day would have precluded us from going beyond the narrowly B and 

incompletely B framed issue. 

 

JAMES CURWOOD WITT, JR.