State of Tennessee v. Gregory Bernard Grier ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 12, 2005
STATE OF TENNESSEE v. GREGORY BERNARD GRIER
Direct Appeal from the Circuit Court for Bedford County
No. 15237 Lee Russell, Judge
No. M2003-03003-CCA-R3-CD - Filed August 11, 2005
In Case No. 15207, the Bedford County Grand Jury charged Defendant, Gregory Bernard Grier, with
the sale of less than 0.5 grams of cocaine in Count 1, and with delivery of the same cocaine in Count
2. Following a jury trial, he was convicted of both charges. The trial court merged the conviction
in Count 2 with the conviction in Count 1, and, following a sentencing hearing, Defendant was
sentenced to serve nine (9) years in the Department of Correction as a Range II multiple offender for
his Class C felony conviction. Due to the unique procedural history of this case pertaining to the
preparation of the record on appeal and the status of Defendant’s former counsel at the time of filing
a statement of the evidence in lieu of a verbatim transcript, we are compelled to reverse the judgment
of the trial court and remand this case to the trial court for proceedings consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Criminal Court Reversed and Remanded
THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.
N. Andy Myrick, Jr., Fayetteville, Tennessee, (on appeal), and Richard Cawley, Shelbyville,
Tennessee, (at trial), for the appellant,
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General,
and William Michael McCown, District Attorney General; Ann L. Filer, Assistant District Attorney
General; and Michael D. Randles, Assistant District Attorney General, for the appellee, the State of
Tennessee
OPINION
I. Background
In order to address the issues raised in this appeal, it is necessary to set forth in detail the
procedural history of Defendant’s case. On March 17, 2003, the Bedford County Grand Jury charged
Defendant, in a two-count indictment, with the sale of less than 0.5 grams of cocaine, in Count1, and
alternatively with delivery of the same cocaine in Count 2. Each charge is a Class C felony. On
March 24, 2003, the trial court entered an order finding that Defendant was indigent, that the District
Public Defender had a conflict which prohibited representation of Defendant, and appointing Richard
A. Cawley, a private attorney, as counsel for Defendant. The order also continued Defendant’s case,
and Defendant was arraigned on April 3, 2003. Mr. Cawley filed various motions on behalf of
Defendant on April 8, 2003, including motions for disclosure of exculpatory evidence and for
discovery. On May 2, 2003, the trial court entered an order setting the case for trial on July 1, 2003.
Mr. Cawley continued to represent Defendant during the jury trial, which was held as
scheduled. The trial court entered an order of July 8, 2003 reflecting that the jury found Defendant
guilty of both counts as charged. The Court’s order stated that the two convictions should be merged
into one conviction, revoked Defendant’s bond due to his being a flight risk, and set the sentencing
hearing for September 4, 2003, since Defendant waived the right to a sentencing hearing within
forty-five (45) days.
On September 4, 2003, a judgment of conviction was entered by the trial court. It shows that
Defendant was sentenced to serve nine (9) years as a Range II multiple offender for his conviction
of the Class C felony offense of sale of less than 0.5 grams of cocaine as charged in Count 1. A
separate judgment regarding Count 2 was entered the same day, merging the conviction with the one
in Count 1.
On September 11, 2003, the trial court entered an order which set the hearing of Defendant’s
motion for new trial on October 2, 2003. Richard A. Cawley was still Defendant’s counsel, and
Michael D. Randles was listed as the Assistant District Attorney representing the State.
On September 23, 2003, attorney Richard A. Cawley filed a motion for new trial on behalf
of Defendant. The motion alleged as grounds for relief that the evidence was insufficient to support
the convictions, the “weight” of the evidence did not support the convictions, and that Defendant’s
sentence was excessive and “contrary to law.”
On October 3, 2003, the trial court entered an order which overruled the motion for new trial,
appointed Richard A. Cawley to represent Defendant on appeal, and pertinent to this appeal, ordered
that “the Court Reporter is directed to transcribe the trial, the sentencing hearing, and the hearing on
the Motion for New Trial.” There is a certificate of service on this order, signed by the trial court,
showing that copy of the order was sent to Defendant’s attorney, Richard A. Cawley, Assistant
District Attorney Michael D. Randles, and to the court reporter, Ms. Eve Vandohlen, on October 3,
2003.
Attorney Richard A. Cawley filed a notice of appeal on behalf of Defendant on November
3, 2003. There is only one transcript of any proceedings in the trial court in this case, and it is of the
hearing on the motion for new trial on October 2, 2003. The court reporter who typed this transcript,
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Paula M. Smith, states in her certification of the transcript that the hearing was actually taken down
in stenotype by court reporter Eve Vandohlen, and “thereafter transcribed via audio tape” by Ms.
Smith “to the best of her ability.”
Particularly puzzling is that this transcript shows that attorney Hayley Fults was Defendant’s
counsel of record at the hearing on the motion for new trial. The transcript even reflects that the trial
court referred to Defendant’s counsel in open court as Ms. Fults. Hayley Fults was appointed by this
Court at a later date to represent Defendant on appeal when Mr. Cawley was allowed to withdraw
as explained below; however, as noted above, all other documents, pleadings, and orders in the
record indicate Mr. Cawley, and not Ms. Fults, represented Defendant at the hearing on the motion
for new trial.
On January 6, 2004, a “docketing statement” was filed with the clerk of the appellate court
on behalf of Defendant by attorney Richard A. Cawley. The first indication in this Court that a
problem existed as to obtaining a verbatim transcript came on April 20, 2004, when Mr. Cawley filed
a motion to supplement the record and obtain an extension of time to file Defendant’s brief. The
appellate record, consisting of only the “technical record” and four exhibits, had been filed on March
26, 2004. In an affidavit filed with his motion, Mr. Cawley stated that Defendant’s appellate brief
was due to the filed “on April 23, 2004,” that he had not received a copy of the transcript, and that
he had discovered that no transcript had been filed with the clerk of the trial court. Rule 24(c) of the
Tennessee Rules of Appellate Procedure requires that the transcript “shall be filed” with the trial
court clerk “within 90 days after filing the notice of appeal;” in this case the notice of appeal was
filed November 3, 2003. Therefore, the transcript was supposed to be filed no later than February
2, 2004, because February 1, 2004 fell on a Sunday. Tenn. R. App. P. 21(a). There is no explanation
in the affidavit why Defendant’s counsel delayed for approximately six weeks filing a motion
regarding the unavailability of a verbatim transcript.
The motion filed by Mr. Cawley only requested supplementation of the record “of the
hearing,” being the trial held on July 1, 2003 as referred to in the motion. This Court entered an
order on May 7, 2004, requiring the supplemental record of the transcript of the trial held on July 1,
2003, be certified and transmitted to this Court within thirty (30) days. Defendant was granted an
extension to file his brief, until thirty (30) days after the filing of the supplemental record. Therefore,
the supplemental record was required to be filed by June 7, 2004, because June 6, 2004 fell on a
Sunday. Tenn. R. App. P. 21(a).
On May 21, 2004, attorney Richard A. Cawley filed a motion with this Court requesting
leave to withdraw as attorney for Defendant. As grounds for the motion, Mr. Cawley stated that he
“is leaving private practice and will be joining the District Attorney’s office for the Seventeenth
Judicial District.” The Seventeenth Judicial District includes Bedford County. An order was entered
by this Court on May 28, 2004, granting the motion, thereby relieving Mr. Cawley from further
representation of Defendant. The order also appointed attorney Hayley E. Fults as attorney for
Defendant in this appeal.
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On July 21, 2004, Ms. Fults filed on behalf of Defendant, a “motion to late file supplemental
record and [for] extension of time.” In her affidavit in support of the motion, Ms. Fults stated that
on July 12, 2004, she discovered that the supplemental record previously ordered, had not yet been
filed. She also indicated that the deputy trial court clerk informed her the supplemental record had
been mailed to the appellate court clerk on July 13, 2004. This Court entered an order on July 29,
2004 allowing an extension of time up to August 12, 2004 for the supplemental record to be filed
and giving an extension for filing Defendant’s brief up to thirty (30) days after filing of the
supplemental record.
There is an affidavit in the record signed by Ms. Fults on August 18, 2004, that states that
although the official court reporter was ordered to transcribe and file the trial and sentencing, she had
not done so. Further, the affidavit states that “[t]he whereabouts of the official reporter ordered to
transcribe the above-noted proceedings is unknown.”
On September 1, 2004, Ms. Fults filed on behalf of Defendant a “Motion for Statement of
the Evidence.” The motion set forth the procedural history of Defendant’s trial and the appeal
process. It also reiterated that the whereabouts of the official reporter, who attended Defendant’s
trial and post-trial proceedings, was still unknown, and that no verbatim transcript of the trial and
sentencing hearing had been filed or prepared.
The motion correctly stated that attorney Richard A. Cawley had represented Defendant at
trial, but had been granted leave to withdraw because of his pending employment with the district
attorney’s office, subsequent to the filing of the notice of appeal. The motion filed by Ms. Fults also
contained the following statement:
[Defendant’s] current counsel of record did not represent [Defendant] at trial and was
not present during any substantive portion or portions of the trial. [Defendant] will
be unable to have meaningful appellate review of the issues raised in this Motion for
New Trial without a statement of the evidence.
The specific relief requested by Ms. Fults on behalf of Defendant was that this Court “enter
an order directing trial attorney Richard A. Cawley and Assistant District Attorney Michael D.
Randles to prepare a statement of the evidence pursuant to T.R.A.P. 24(c).”
In response to the motion for statement of the evidence, this Court entered an order on
October 13, 2004. In this order, it is reflected that the trial court, the Administrative Office of the
Courts, this Court, and Defendant’s counsel had all tried unsuccessfully to obtain the transcripts of
Defendant’s proceedings from the official court reporter, Eve Vandohlen. Ms. Vandohlen was the
respondent of a show cause order pertaining to her failure to prepare transcripts in another case. At
the show cause hearing, she agreed to complete the transcripts in Defendant’s case and/or allow
another court reporter to transcribe the proceedings for her. She failed to do so, and moved to an
unknown location.
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In the October 13, 2004 order, this Court concluded that Defendant had no alternative to a
transcript other than a statement of the evidence pursuant to Rule 24(c) of the Tennessee Rules of
Appellate Procedure. The order recognized the “complicating factor” that Defendant’s trial counsel
was now employed by the District Attorney General for Bedford County, but under the
circumstances concluded that “the available remedy at this time” was to require the filing of a
statement of the evidence. This Court also ordered that the case be “remanded to the trial court for
the preparation of a statement of the evidence by Appellant’s trial counsel, Richard A. Cawley,” and
the assistant district attorney general.
On November 15, 2004, Ms. Fults filed another motion on behalf of Defendant. In this
motion, Ms. Fults argued that the collaboration between Defendant’s trial counsel, now an assistant
district attorney, and Assistant District Attorney Michael D. Randles in preparation of the statement
of the evidence “is a prima facie conflict of interest.” She also argued that in the sixteen months
between the trial and the preparation of the statement of evidence, Mr. Cawley’s and Mr. Randles’
“accuracy of recall would be diminished.” The relief sought by counsel for Defendant was remand
for a new trial. Three days later, the trial court clerk filed with the appellate clerk what is styled
“Agreed Statement of the Evidence.” The first paragraph of this document states:
By agreement of the parties, as evidenced by the signatures of their respective
attorneys herein below, the following is a summary of the evidence adduced at the
[Defendant’s] trial in this cause.
The “Agreed Statement of the Evidence” was signed by Assistant District Attorney General
Michael D. Randles and by Richard Cawley, identified as “Counsel for Defendant at Trial.”
On December 15, 2004, this Court entered an order denying the motion for a remand for a
new trial. The Court also considered the statement of the evidence to have been approved by the trial
court. However, this Court also explicitly stated that Defendant could, in his appellate brief, raise
the issue already raised in his motion concerning the circumstances surrounding the preparation of
the statement of the evidence.
However, in the meantime, Ms. Fults filed a motion on November 22, 2004, for leave to
withdraw as attorney for Defendant. Her grounds for the motion was that she had left the private
practice of law and had become employed by the District Public Defender’s office for Bedford
County. The Public Defender’s Office had earlier been recognized as having a conflict of interest
in representing Defendant. On December 6, 2004, this Court entered an order allowing Ms. Fults
to withdraw as counsel for Defendant, and this order further appointed Andy Myrick as attorney for
Defendant.
On January 4, 2005, attorney Andy Myrick filed another motion on behalf of Defendant
requesting an order of remand for a new trial due to the lack of any statement of the evidence
pertaining to Defendant’s sentencing hearing, and the general circumstances of the preparation of
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the record. In the alternative for relief, Defendant asked that he be allowed to “raise the inadequacy
of the record on appeal as a basis for relief in this Court.”
In an order entered January 25, 2005, this Court denied the motion filed on behalf of
Defendant as being premature, but specifically stated that “Appellant shall include this issue in his
brief, which is due 30 days from the date of this order.”
The record reflects that the State did not move for reconsideration of any order entered in
response to the several motions filed by Defendant, and did not seek to appeal any of the
interlocutory orders entered by this Court in these proceedings.
II. Analysis
In his appellate brief, Defendant presents two issues which are set forth verbatim:
I. Whether the case should be remanded to the trial court for a new trial because
the appellant is being denied an effective appeal because there is no official
transcript of the proceedings?
II. Whether there is a conflict of interest created when the statement of the
evidence was prepared by the State and the former attorney for the appellant,
who now is an assistant district attorney in the same county?
Defendant relies upon this Court’s opinion in Jackson v. State, No. 01C01-9608-CR-00368,
1998 WL 30255 (Tenn. Crim. App., at Nashville, Jan. 28, 1998), no perm. to appeal filed, in support
of his argument that since a verbatim transcript cannot be obtained, even though an official court
reporter was present during the trial and sentencing hearing, that he is entitled to a new trial. The
State responds that while Jackson supports the proposition that a new hearing may be required under
some circumstances when a record is unavailable, the opinion also makes it clear that a new
proceeding is only warranted when the record cannot be reconstructed so as “to allow meaningful
review of the issues” presented on appeal. Id., at *6. The State argues that the “Agreed Statement
of the Evidence” signed and filed by two assistant district attorneys general, one of whom was
Defendant’s counsel at the time of trial and sentencing, but not at the time the statement was filed,
is “a thorough statement of the evidence presented at trial in accordance with [Tenn. R. App. P.]
Rule 24(c).” The State further argues that Defendant should have again supplemented the record
with a statement of the evidence of the sentencing hearing if he wanted to raise any sentencing issues
on appeal.
Defendant also argues that he has been denied an effective appeal because of the actual
conflict of interest existing when his former counsel, Richard Cawley, jointly prepared and submitted
the “Agreed Statement of the Evidence” at a time when Mr. Cawley was an assistant district attorney
general. The State responds that “this Court’s order directing Mr. Cawley to participate in the
preparation of the statement of the evidence did not deny the defendant an effective appeal.”
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Tennessee Code Annotated section 40-14-307(a), pursuant to the definitions contained in
section 40-14-301, provides that in all felony cases in the trial courts of record in this state:
A designated reporter shall attend every stage of each criminal case before the
court and shall record verbatim, by method prescribed or approved by the
administrative director, all proceedings had in open court and such other proceedings
as the judge may direct. The reporter shall attach the reporter’s official certificate to
the records so taken and promptly file them with the clerk of the court, who shall
preserve them as a part of the records of the trial.
(Emphasis added).
This Defendant had a statutory right to have a verbatim recording and transcript of all
proceedings of his trial and sentencing hearing. Furthermore, as recognized by this Court in State
v. Draper, 800 S.W.2d 489 (Tenn. Crim. App. 1990), Defendant, as an indigent, has a constitutional
right under the Due Process and Equal Protection Clauses, for the State to provide him “with a
‘record of sufficient completeness’ to permit proper consideration of the issues the defendant will
present for review.” Id. at 493. The Draper Court relied upon the holding of the United States
Supreme Court in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) wherein the
Court “ruled that the Due Process and Equal Protection Clauses mandate in [sic] that a state afford
a defendant convicted of a felony ‘as adequate appellate review as defendants who have money.’”
Draper, 800 S.W.2d at 493 n.15 (quoting Griffin, 351 U.S. at 19, 76 S.Ct. at 591).
Notwithstanding Defendant’s assertion that an inherent actual conflict of interest exists by
Mr. Cawley preparing the statement of evidence in November 2004, along with the prosecuting
attorney at trial, Mr. Randles, this appeal can be resolved without directly addressing the issue at this
time in this Court. Rule 24 (c) of the Tennessee Rules of Appellate Procedure permits the use of
a narrative statement of the evidence in an appeal “[i]f no stenographic report, substantially verbatim
recital or transcript of the evidence or proceedings is available.” However, Rule 24(c) explicitly
provides that in such a situation, “the appellant shall prepare a statement of the evidence or
proceedings from the best available means, including the appellant’s recollection.” (Emphasis
added). The law is well settled that a defendant who is represented by counsel cannot file pro se
any pleading, brief, or other document, but must rely upon his counsel to do so. State v. Davis, 141
S.W.3d 600, 615-16 n. 12 (Tenn. 2004) (citing Wallace v. State, 121 S.W.3d 652, 5655 n. 2 (Tenn.
2003); State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976). When this Court entered an order on
October 13, 2004, requiring Defendant’s former counsel, Richard Cawley, and the prosecuting trial
attorney, Mr. Randles, to prepare a statement of the evidence, Mr. Cawley was, at that time, an
assistant district attorney general, and had not been Defendant’s attorney for approximately four and
one-half months, since May 28, 2004. Upon reconsideration, we conclude that this Court erred by
ordering preparation of a statement of the evidence in this manner. Rule 24(c) of the Tennessee
Rules of Appellate Procedure mandates that an appellant (or his counsel) shall file a statement of
the evidence with the trial court and give notice of the filing to the appellee state. If the appellee has
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objections, they must be filed within fifteen (15) days, with any differences resolved by the trial court
in accordance with Rule 24(e) of the Tennessee Rules of Appellate Procedure.
Accordingly, we conclude that no valid statement of the evidence has been filed in this case,
due in no part as a result of fault by Defendant.
Rule 36(a) of the Tennessee Rules of Appellate Procedure provides in part as follows:
The Supreme Court, Court of Appeals, and Court of Criminal Appeals shall grant the
relief on the law and facts to which the party is entitled or the proceeding otherwise
requires and may grant any relief, including the giving of any judgment and making
of any order . . . .
The advisory commission comments to Rule 36(a) state that “[t]his subdivision makes clear
that the appellate courts are empowered to grant whatever relief an appellate proceeding requires.”
Rule 36(b) of the Tennessee Rules of Appellate Procedure provides as follows:
A final judgment from which relief is available and otherwise appropriate shall not
be set aside unless, considering the whole record, error involving a substantial right
more probably than not affected the judgment or would result in prejudice to the
judicial process.
We conclude that the judgment of the conviction and sentence must be reversed, and this
cause remanded to the trial court to resolve fully the issue regarding preparation of a statement of
the evidence that conveys “a fair, accurate and complete account of what transpired with respect to
these issues that are the basis of appeal.” Tenn. R. App. P. 24(c). However, we are not ordering a
new trial at this time. Upon remand, the trial court’s judgment will be reinstated such that, as of the
mandate being issued from this Court, the case will proceed in accordance with the Tennessee Rules
of Appellate Procedure as though the notice of appeal was timely filed on the date of this Court’s
mandate. See Tenn. R. App. P. 36(a).
Defendant’s counsel, Andy Myrick, shall continue to be attorney of record for Defendant.
The procedure for filing a narrative statement of the evidence (or a verbatim transcript by the court
reporter or of her tapes if they are found) shall be begun by Defendant’s counsel pursuant to Rule
24(c) of the Tennessee Rules of Appellate Procedure. Any issue regarding the inability to do so
shall be promptly presented to and resolved by the trial court. While we do not reach the issue of
the alleged conflict of interest that exists in this case regarding preparation of an adequate record of
the trial and sentencing hearing, we do note that our Supreme Court in State v. White, 114 S.W.3d
469 (Tenn. 2003) held that “the State has met its burden of proof in showing that [defendant’s
attorney]’s dual roles as assistant district attorney general and criminal defense lawyer in the same
county created an actual conflict of interest that the State could not be forced to waive.” Id. at 479.
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While the facts of this case are unique and hopefully will not be frequently found to exist in
this State, the unusual combination of an absconding official court reporter in a felony case and the
transfer of Defendant’s appointed counsel from private practice to the employment of the very office
that prosecuted Defendant, requires the result we reach. The State was required by both
constitutional and statutory law to provide Defendant with the availability of an adequate record of
the proceedings to provide him an adequate appeal.
If the trial court determines that in light of all the circumstances, an adequate, fair, accurate,
and complete record of the trial and sentencing proceedings cannot be prepared in this case, the trial
court shall grant defendant a new trial. If the trial court approves a record of the proceedings, then
Defendant may pursue his appeal of the merits of his issues presented in his motion for new trial
previously filed in this case, as well as the trial court’s determination that a fair, accurate, and
complete record of the trial and sentencing proceedings has been provided.
CONCLUSION
For the reasons stated, the judgment of the trial court is reversed, and this case is remanded
to the trial court for further proceedings in accordance with this opinion.
_________________________________________
THOMAS T. WOODALL, JUDGE
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