State v. Hendrix

HARBISON, Justice,

concurring.

While I recognize the validity of the principles of law stated in the opinion of the Court of Criminal Appeals, I do not believe that they control here.

As pointed out in the majority opinion, this case reached the appellate courts on what was supposed to be a certified question of law pursuant to Rule 37(b)(2), Tennessee Rules of Criminal Procedure. Questions should be accepted under that rule only if they are dispositive of the case. At the beginning of its opinion the Court of Criminal Appeals sustained the contentions of the four accused persons, without making any differentiation among the four, but then it concluded its opinion by remanding the case to the trial court for further proceedings. Inferentially the Court of Criminal Appeals indicated that the trial court could retry the defendants, although the Court of Criminal Appeals stated that it felt that retrial would be futile without the evidence in question.

In my opinion this is not a proper disposition of a Rule 37 appeal. If the question was dispositive, then the charges should have been dismissed. If it was not disposi-tive, the convictions should have been affirmed. "Retrial” is not contemplated under the procedural rule involved.

As pointed out in the majority opinion, the question attempted to be certified was not dispositive as to Hendrix Sr., as to whom the District Attorney stated that additional evidence, not involved in the search, was possessed by the State. This statement was not denied. None of the defendants offered any proof in the matter.

In my opinion Hendrix Sr., and possibly defendant Mashke, are the only persons who might complain of the failure of police officials to obtain a search warrant for the Hendrix residence. The defendant Bradshaw was not present when the telephone call in question was made to the residence, and he apparently drove up to the scene unaware of the phone call. He injected himself into an attempt to conceal the contraband, and I fail to see how he would be entitled to complain of the failure of the police to obtain a search warrant for the Hendrix residence at an earlier date. The same is true as to Hendrix Jr. and Mashke in connection with their fleeing from the residence in their automobile. These defendants were not immunized to commit criminal acts on the streets because the police had not previously obtained a warrant to enter the Hendrix, Sr. residence. As stated, as to Hendrix Sr. there was other evidence to support the conviction, and the issue which he sought to appeal was not dispositive.

For these additional reasons I concur in the majority opinion. I am authorized to state that Justice FONES joins in this concurring opinion.