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Rule 12: First - Degree Murder Trial Reports and Appeals in Capital Cases.

1. Trial Judge's Report in First-Degree Murder Cases.

The report, a copy of which is appended to this rule, shall be completed in its entirety in all cases, including cases remanded by the appellate court for retrial and/or resentencing, in which the defendant is convicted of first-degree murder. This includes cases in which the defendant pleads guilty to first-degree murder. In the event more than one defendant is convicted of first-degree murder, a separate report shall be completed for each defendant.

Prior to the hearing on the motion for new trial, the defendant's counsel shall complete Section B of the report (“Data Concerning Defendant”) and the district attorney general shall complete Section C (“Data Concerning the Victim, Co-Defendants, and Accomplices”). Counsel shall submit the completed sections to the trial judge at or before the hearing on the motion for new trial. The trial court shall complete all remaining parts of the report and shall submit the report to counsel for the defendant and the district attorney general for such comments as each may desire to make concerning the accuracy of the report. Such comments must be noted and delivered to the trial court no later than ten days after the trial court rules on the motion for new trial. Such comments shall be attached to and made a part of the report.

It shall be the responsibility of the trial court to compile, or cause to be compiled, all information required by this rule; to certify the accuracy of the report as to those matters within the trial court's knowledge; and to transmit the report forthwith to the Clerk of the Supreme Court, Nashville, along with a certified copy of the order disposing of the motion for new trial. This report and the order shall be transmitted to the Clerk of the Supreme Court within fifteen (15) days after the trial court rules on the motion for new trial. A duplicate copy of the report and any comments of counsel attached thereto shall be filed with the record on appeal.

2. Appeal of Capital Case upon Affirmance by Court of Criminal Appeals.

In accord with Tenn. Code Ann. § 39-13-206(a)(1), upon affirmance by the Court of Criminal Appeals of the conviction and sentence of death, the Appellate Court Clerk shall forthwith transmit the record to the Supreme Court for immediate docketing. The Clerk shall promptly notify the parties of the docketing, the date of filing of the record in this Court, and of the times for filing and service of briefs under T.R.A.P. 29(a).The case shall proceed in accordance with the Tennessee Rules of Appellate Procedure except as otherwise required by this Rule. No party shall incorporate or adopt by reference any brief previously filed by that party in the Court of Criminal Appeals, either in whole or in part; and any brief filed in this Court shall be complete, presenting all issues, arguments and facts, without any need for reference to any brief previously filed in the Court of Criminal Appeals. A copy of the opinion of the Court of Criminal Appeals shall be appended to the appellant’s brief.

Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument. The order shall afford the parties additional time for the filing of any supplemental briefs addressing these issues. In all cases, the Court will conduct the review as mandated by Tenn. Code Ann. § 39-13-206(c)(1).

3. Setting Execution Date at Conclusion of State Post-Conviction Proceedings.

Whenever a death-row prisoner has unsuccessfully pursued state post-conviction relief through appeal or application for permission to appeal to this Court, should there be no execution date in effect, the State Attorney General shall file a motion requesting that this Court set an execution date. Any response to the State's motion shall be filed within (10) days after the motion is filed.

4. Setting Execution Date at Conclusion of Standard Three-Tier Appeals Process.

(A) Motion/Response.

After a death-row prisoner has pursued at least one unsuccessful challenge to the prisoner's conviction and sentence through direct appeal, state post-conviction, and federal habeas corpus proceedings, the State Attorney General shall file a motion requesting that this Court set an execution date. The motion shall include a brief summary of the procedural history of the case demonstrating that the prisoner has completed the standard three-tier appeals process. The motion shall be considered premature if filed prior to the expiration of the time for filing a petition for writ of certiorari or a petition to rehear the denial of a petition for writ of certiorari in the United States Supreme Court.

Any response in opposition to the motion shall be filed within ten (10) days after the motion is filed and shall assert any and all legal and/or factual grounds why the execution date should be delayed, why no execution date should be set, or why no execution should occur, including a claim that the prisoner is not competent to be executed, see Coe v. State, 17 S.W.3d 191 (Tenn. 2000); Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999); or a request for a certificate of commutation pursuant to Tenn. Code Ann. § 40-27-106, see Workman v. State, 22 S.W.3d 807 (Tenn. 2000). Unless otherwise ordered by the Court, no reply to the response is required.

(B) Designation of Attorney of Record.

In the motion and the response, the State and the prisoner shall designate an attorney of record upon whom service shall be made. In addition to the name of the attorney of record, the motion and response shall include the mailing address, E-mail address, if available, telephone number, and facsimile number, if available, of the attorney of record. The motion and response shall indicate the means by which the attorney of record prefers to be notified of orders or opinions of the Court. The Appellate Court Clerk shall notify the attorney of record and provide him or her a copy of any and all orders and opinions issued by this Court in the matter. The attorney of record shall be responsible for notifying co-counsel and providing copies of any and all orders and opinions to co-counsel.

(C) Place of Filing/Number of Copies/Service.

Regardless of the Grand Division in which the case originated, the motion, response, and all subsequent filings in the matter shall be filed with the Office of the Appellate Court Clerk in Nashville.  If the motion, response or any other filing in the matter exceeds fifty pages in length, a syllabus summarizing the contents shall accompany the filing. In addition to an original copy of the motion, response or other filing, an electronic copy of the filing shall be submitted to the Clerk at the time of filing by email, in Adobe .pdf format.

Filing shall not be timely unless the documents are RECEIVED by the Clerk within the time fixed for filing. Mailing the papers within the time fixed for filing by certified return receipt mail or registered return receipt mail shall NOT be considered timely filing. Copies of all filings shall be served upon the opposing attorney of record contemporaneously with their filing, either by hand delivery, facsimile, or E-mail.

(D) Computation of Time Periods.

In computing the time periods for filing, the day of the event, i.e., filing of the motion or filing of the response to the motion, is not to be included in the computation. Moreover, if the last day of the period for filing is a Saturday, a Sunday, a legal holiday, or a day when the Clerk's office for filing is closed, the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday or a day when the Clerk's office is closed. In all other circumstances, Saturdays, Sundays, legal holidays, and days when the Clerk's office is closed for filing are included in the computation of the time periods.

(E) Date of Execution/Stays and Reprieves.

The Court shall set the date of execution no less than thirty (30) days from the date of the order granting the State's motion. Where the date set by the Court for execution has passed by reason of a stay or reprieve, this Court shall sua sponte set a new date of execution when the stay or reprieve is lifted or dissolved, and the State shall not be required to file a new motion to set an execution date. Any new date of execution shall be no less than seven (7) days from the date of the order setting the new execution date.

The State Attorney General shall provide a copy of any judicial or executive order staying the execution or granting a reprieve to the Office of the Clerk of the Appellate Courts in Nashville. The Clerk shall expeditiously furnish a copy of the order to the Warden of the Riverbend Maximum Security Institution. In addition, the State Attorney General shall expeditiously provide a copy of any judicial or executive order lifting or dissolving the stay or reprieve to the Office of the Appellate Court Clerk in Nashville.

[As amended by order filed November 25, 1987; by order filed June 1, 1992; by order filed October 2, 1996; by order filed October 29, 1997; by order filed May 27, 1999; by order filed October 27, 2000; by order filed March 5, 2003; and by order filed December 20, 2013, effective January 1, 2014.]

Explanatory Comment

Section 4(C) was amended to account for developments in technology.  The amendment deletes both the requirement that an original and ten (10) copies of papers be filed with the Clerk, and the requirement that a 3.6" computer diskette containing the text of the filing by filed with the Clerk.  Instead, parties are directed to simultaneously file an original document and an electronic copy by e-mail.  The amendment also deletes the requirement that parties furnish a hard copy of the filing to the opposing attorney, deeming an electronic copy via facsimile or e-mail sufficient.

REPORT OF TRIAL JUDGE IN FIRST DEGREE MURDER CASES1                                 Revised 3/9/11

1 A separate report must be submitted for each defendant convicted under T.C.A. § 39-13-202 irrespective of the sentence received. This includes defendants who have pleaded guilty to first-degree murder.


IN THE _______ COURT OF _______ COUNTY

STATE OF TENNESSEE

                                                    Case No. _______

v.

                                                     Sentence of  Death ( )

                                                    or   

________                                  Life Without Parole ( )

 (Defendant)                               or   

                                                     Life Imprisonment ( )


A. DATA CONCERNING THE TRIAL OF THE OFFENSE

1.  a. Status of Case: Original Trial ( ) Retrial/Resentencing ( )

 b. Brief summary of the facts of the homicide, including the means used to cause death and scene of crime:

_____________________

_____________________

_____________________

_____________________

_____________________

_____________________

2. How did the defendant plead?     Guilty ( )    Not guilty ( )

3. Was guilt determined with or without a jury? With ( ) Without ( )

4. Separate Offenses:

  a. Were other offenses tried in the same trial? Yes ( ) No ( )

  b. If yes, list those offenses, disposition, and punishment:
_____________________

5. Did you as “thirteenth juror” find the defendant was guilty beyond a reasonable doubt?

   Yes ( ) No ( )

6. Did the defendant waive jury determination of punishment?

   Yes ( ) No ( )

7. a. Did the State file a notice of intent to seek the death penalty?

   Yes ( ) No ( )

  b. Did the State file a notice of intent to seek life imprisonment without parole?

   Yes ( ) No ( )

  c. Did the State withdraw its notice of intent to seek the death penalty either formally or informally? Yes ( ) No ( )

  d. Who sentenced defendant? Judge ( ) Jury ( )

  e. What sentence was imposed? Death ( ) Life Without Parole ( )

  f. If life imprisonment, was it imposed as a result of a hung jury?
Yes ( ) No ( )

8. Was victim impact evidence introduced at trial? Yes ( ) No ( )

9. Aggravating Circumstances, T.C.A. § 39-13-204(i):

  a. Were statutory aggravating circumstances found? Yes ( ) No ( )

  b. Which of the following statutory aggravating circumstances were instructed and which were found? (Please note the version of the statutory aggravating circumstance instructed in the blanks provided when applicable, i.e., the 1989 version or the 1995 version.)

(1)     Youth of the victim                          ( )     ( )     ___________
(2)     Prior convictions                             ( )     ( )     ___________
(3)     Risk of death to others                  ( )     ( )     ___________
(4)     Murder for remuneration               ( )     ( )     ___________
(5)     Heinous, atrocious, or cruel         ( )     ( )     ___________
(6)     To avoid arrest or prosecution     ( )     ( )     ___________
(7)     Committed in conjunction with another felony   ( )  ( ) ___________
(8)     Committed while in custody         ( )     ( )     ___________
(9)     Victim was a member of law enforcement, etc. ( )   ( )___________
(10)     Victim was a judge, district attorney, etc.     ( )     ( )   ___________
(11)     Victim was elected official, etc.     ( )     ( )     ___________
(12)     Mass murder                                    ( )     ( )     ___________
(13)     Mutilation of the body                       ( )     ( )     ___________
(14)     Elderly or particularly vulnerable victim     ( )     ( )     ___________
(15)     Other 2

2 In this space, the trial court should list by statutory designation any statutory aggravating factor that was instructed, but is not in the prior list.

  _____________________

  _____________________

  _____________________

  _____________________

Related any significant aspects of the aggravating circumstance(s) that influence the punishment.

  _____________________

  _____________________

  _____________________

  c. Were the aggravating circumstances found supported by the evidence? Yes ( ) No ( )

10. Mitigating Circumstances, T.C.A. § 39-13-204(j):

  a. Were the mitigating circumstances raised by the evidence?                   Yes ( )  No ( )

  b. If so, what mitigating circumstances were raised by the evidence?


(1)     No significant prior criminal history                 ( )     ( )
(2)     Extreme mental or emotional disturbance     ( )     ( )
(3)     Participation or consent by victim                     ( )     ( )
(4)     Belief that conduct justified                                ( )     ( )
(5)     Minor accomplice                                                 ( )     ( )
(6)     Extreme duress or substantial domination    ( )     ( )
(7)     Youth/advanced age of defendant                    ( )     ( )
(8)     Mental disease or defect or intoxication          ( )     ( )
(9)     Other (explain): 3______                                    ( )     ( )

3 In the space provided, please list all nonstatutory mitigating factors raised by the evidence.

                _____________________

                _____________________

                _____________________

                _____________________

                _____________________

                _____________________

                _____________________

                _____________________

  (c) Relate any significant facts about the mitigating circumstances that influence the punishment.
________________________________________________________________________________________________

  (d) If tried with a jury, was the jury instructed regarding all the circumstances indicated in 10(b) as mitigating circumstances?             Yes ( ) No ( )

  If no, list which circumstances were not included as mitigating circumstances and explain why such circumstances were omitted: __________________________________________________________________________________________________

11. If the sentence was death, does the evidence show that the defendant killed, attempted to kill, or intended that a killing take place or that lethal force be employed? Yes ( ) No ( )

12. Was there any evidence that at the time of the offense the defendant was under the influence of narcotics, dangerous drugs or alcohol which actually contributed to the offense?

   Yes ( ) No ( )

  If yes, explain: ____________________________________________________________________________________

13. General comments of the trial judge concerning the sentence imposed in this case (e.g., whether this sentence is consistent with those imposed in similar cases the judge has tried, etc.): __________________________________________ ____________________________________________________________________________________________________

14. Brief impression of the trial judge as to conduct and/or affect of defendant at trial and sentencing: _____________________

  _____________________________________________________________________________________________________
 

B. DATA CONCERNING THE DEFENDANT4

4 Defense counsel may omit any information that may, if disclosed, impair the interests of the client.

1. Name _________________________            2. Birth Date ________

               Last,       First          Middle                                  mo./day/year

3. Sex _____                               

4. Marital Status: Never Married ( )

                               Married ( )

                               Divorced ( )

                               Spouse Dec'd ( )


5.  Race_____

6. Children:           Number ______

                               Ages ____

  Other dependents: _____

7. Parents:  Father—living?  Yes ( ) No ( )

                    Mother—living?  Yes ( ) No ( )

8. Education: Highest Grade or Level Completed: _________________

9. Intelligence Level: Low (IQ below 70)            _____

                                      Medium (IQ 70 to 100)    _____

                                      High (IQ above 100)        _____

                                      Not Known                        _____

10.   a. Was the issue of defendant's intellectual disability under T.C.A. § 39-13-203 raised? Yes ( ) No ( )

  b. If so, did the court find that the defendant had intellectual disability as defined in T.C.A. § 39-13-203(a)? Yes ( ) No ( )

11.   a. Was a psychiatric or psychological evaluation performed? Yes ( ) No ( )

  b. If yes, summarize pertinent psychiatric or psychological information and/or diagnoses revealed by such evaluation:
____________________________________________________________________________________
___________________________________________________________________________________

12.  Employment record of defendant at or near time of offense, including if known, type of job, pay, dates job held and reason for termination:
____________________________________________________________________________________________________ ____________________________________________________________________________________

13. Defendant's Military History, including type of discharge:
______________________________________________________________

14a. Does the defendant have a record of prior convictions?
Yes ( ) No ( )

  b. If yes, list the offenses, the dates of the offenses and the sentences imposed:

    Offense                      Date                                                  Sentence

1. ____________________________________________________________________________________

2. ____________________________________________________________________________________

3. ____________________________________________________________________________________

4. ____________________________________________________________________________________

5. ____________________________________________________________________________________

6. ____________________________________________________________________________________

15. Was the defendant a resident of the community where the homicide occurred?  Yes ( ) No ( )

16. Noteworthy physical or mental characteristics or disabilities of defendant:
_____________________________________________________________________________________

17. Other significant data about the defendant:

 ____________________________________________________________________________________
 ____________________________________________________________________________________
 ____________________________________________________________________________________

C. DATA CONCERNING VICTIM, CO-DEFENDANTS, AND ACCOMPLICES

1. Age of victim _________

2. Sex _________

3. Race of victim _________

4. Marital Status: Never Married ( )

                               Married ( )

                               Divorced ( )

                               Spouse Dec'd ( )

5. Children:           Number ______

                               Ages ____

   Other dependents ______

6. Parents:    Father - Living? Yes ( ) No ( )

                      Mother - Living? Yes ( ) No ( )

7. Education: Highest Grade or Level Completed: ________________

8. Employment at time of offense _____________________

9. Criminal record _____________________

10. Describe the relationship between the defendant and the victim (e.g., family member, employer, friend, etc.):
____________________________________________________________________________________

11. Was the victim a resident of the community where the homicide occurred?  Yes ( ) No ( )

12. Was the victim held hostage during the crime?
_____ Yes —Less than one (1) hour
_____ Yes —More than one (1) hour
_____ No
If yes, give details:
_______________________________________________________________

13.  a. Describe the physical harm and/or injuries inflicted on the victim:
_______________________________________________________________

  b. Was the victim tortured, state the nature of the torture: ______________________________________________________________________________________________________________________________

14. Co-Defendants:

  a. Were there any co-defendants in the trial? Yes ( ) No ( )

  b. If yes, what conviction and sentence were imposed on them?
_______________________________________________________________

  c. Nature of co-defendant's role in offense:
_______________________________________________________________

  d. Any further comments concerning co-defendants:
_______________________________________________________________

15. Other Accomplices:

  a. Were there any persons not tried as co-defendants who the evidence showed participated in the commission of the offense with the defendant? Yes ( ) No ( )

  b. If yes, state the nature of their participation, whether any criminal charges have been filed against such persons as a result of their participation and the disposition of such charges, if known:

  ____________________________________________________________________________________

  __________________________________________

  c. Did the accomplice(s) testify at the defendant's trial? Yes ( ) No ( )

D. REPRESENTATION OF THE DEFENDANT

1. How many attorneys represented defendant? _______
(If more than one counsel served, answer the following questions as to each counsel and attach a copy for each to this report.)

2. Name of counsel: _____________________

3. Date counsel secured: _____________________

4. How was counsel secured:
a. Retained by defendant   ( )
b. Appointed by court  ( )
c. Public defender ( )

5. If counsel was appointed by court, was it because:

  a. Defendant unable to afford counsel ( )

  b. Defendant refused to secure counsel ( )

  c. Other (explain): __________________________________________

6. How many years has counsel practiced law?
a. 0 to 5  ( )
b. 5 to 10  ( )
c. Over 10  ( )

7. What is the nature of counsel's practice?
a. Mostly civil  ( )
b. General ( )
c. Mostly criminal ( )

8. Did counsel serve throughout the trial? Yes ( ) No ( )

9. If not, explain in detail: _______________________________________________________________

10. Other significant data about defense representation: _______________________________________________________________


E. GENERAL CONSIDERATIONS

1. What percentage of the population of the county from which the jury was selected is the same race as the defendant?

                               a. Under 10%   ( )

                               b. 10%—25%   ( )

                               c. 25%—50%   ( )

                               d. 50%—75%   ( )

                               e. 75%—90%   ( )

                               f. Over 90%       ( )

2. Were members of defendant's race represented on the jury? Yes ( ) No ( )
How many of defendant's race were jurors? _______

3. a.  Was a change of venue requested?                                                               
Yes ( ) No ( )

  b. If yes, was it granted?                                                               
Yes ( ) No ( )

   Reasons for change, if granted: ___________________________________________________________

F. CHRONOLOGY OF CASE

                                        Elapsed Days

 1. Date of offense _____________________

 2. Date of arrest _____________________

 3. Date trial began _____________________

 4. Date sentence imposed _____________________

 5. Date post-trial motions ruled on _____________________

 6. Date trial judge's report completed _____________________

*7. Date received by Supreme Court _____________________

*8. Date sentence review completed _____________________

*9. Total elapsed days _____________________

10. Other __________________________________________

*To be completed by Supreme Court

 This report was submitted to the defendant's counsel and to the attorney for the State for such comments as either desired to make concerning its factual accuracy.

                                                
                                                          D.A.       Defense Counsel
 1. Comments are attached         ( )            ( )
 2. Had no comments                   ( )            ( )
 3. Has not responded                  ( )            ( )

 I hereby certify that I have completed this report to the best of my ability and that the information herein is accurate and complete.

___________                       _____________________

   Date                                    Judge, _____________________

                                              Court of _____________________County

                                              Judicial District _____________________

 

Form amended by order filed March 9, 2011.

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