Almeer K. Nance v. State of Tennessee

[00:00:00]of Tennessee.

[00:00:04]>> Or?

[00:00:05]General Orr.

[00:00:10]>> Your Honors, my name is Courtney Orr on behalf of the state of Tennessee. I would like to reserve 5 minutes for rebuttal.

[00:00:20]This is a case about the propriety of a juvenile consecutive sentence.

[00:00:27]And we are here on a Rule 10 extraordinary appeal from the grant of Mr. Nance's motion to reopen his post-conviction proceedings relying on the Tennessee Supreme Court's decision in State versus Tyshaun Booker.

[00:00:42]Mr. Nance argues, or to give actually to give this court some procedural history, Mr. Nance was charged with first-degree murder along with uh especially aggravated robbery, three counts of aggravated robbery, >> [snorts] >> and two counts of especially aggravated kidnapping.

[00:01:00]The state prior to trial sought a increased sentencing for the first-degree murder charge with life without parole.

[00:01:07]After the first part of the trial, after the jury came back with convictions for uh for the charges, the state entered into an agreed sentence for the remaining uh for the sentencing side where they would drop the life without parole, agree to a life sentence, and Mr. Nance accepted a global 25-year sentence for all of his non-homicide convictions that would be served consecutive to the life sentence for first-degree murder.

[00:01:36]In this motion to reopen, Nance argues that Tyshaun Booker and its holding that the automatic 51-year sentence for first-degree murder uh holding that unconstitutional also necessarily invalidates his agreement to a 25-year sentence for his consecutive non-homicide offenses.

[00:01:56]Booker does no such thing.

[00:02:00]This court has held on many occasions that Booker has no application to non-homicide offenses. Booker's holding is incredibly narrow. All it says is that the automatic 51-year service rate of a life sentence applied to juveniles violates the 8th Amendment. And it's not that >> And just technically, it really is considered 60 years, but you can get credit for up to 9 years, and that's where the 51 years comes from.

[00:02:25]>> Corrects, Your Honor. Is that it and Booker looks to that 51 years, 60 years that can be reduced to 51, and says, "This is a long sentence." But, the length of that sentence is not the gravamen of Booker's holding. Instead, Booker holds that the automatic and non-discretionary nature of that sentence statutorily applied to a juvenile offender violated the 8th Amendment. And instead, juvenile offenders cannot be automatically sentenced to a life sentence with 51 year service mandatory rate absent some sort of consideration of their youth, um of their ability to be rehabilitated. Booker's remedy for that is to allow plaintiffs retroactively in all juvenile offenders who were on or in prison for first-degree murder, as Mr. Nance is, retroactively are eligible for a parole determination after a minimum of 25 years of service, 36 years. That's 36 years minus the good reduction credits.

[00:03:24]Mr. Nance has already received the benefit of that holding in Booker. He has received a parole hearing and was denied parole, and I believe his next parole hearing is scheduled for April of 2027.

[00:03:35]But, Booker does not apply at all to the remaining sentences that Mr. Nance is serving.

[00:03:44]And this court All this court has to look to is its prior opinions, which yes, many of these are unpublished. But, this court has examined the application of Booker on many different scenarios and has held that Booker does not apply outside of its narrow confines repeatedly. Held that Booker does not apply to life without parole sentences, that's Daniel versus State and Hall versus State. Booker does not apply to higher service rates for non-homicide offenses, like the 85 85% rate for aggravated robbery, that's State versus Brody. Booker does not apply to young adult offenders who are sentenced to death, which is Pike versus State. And as important to this case, Booker does not apply to consecutive sentencing determinations even when those consecutive sentences are stacked with a life sentence, that's Mallard versus State and Moore versus State. It does not apply to out-of-range sentences for non-first-degree murder convictions, that's Mason versus State. And it does not apply to negotiated sentences, again, Mason versus State.

[00:04:39]That is exactly the scenario that Nance asked this court to apply Booker today.

[00:04:46]Nance asked this court to hold that Booker retroactively would invalidate his negotiated sentence consecutive sentence for non-homicide offenses in a motion to reopen posture.

[00:05:01]Booker does not do that.

[00:05:05]And Nance cannot distinguish this case from this court's prior decisions.

[00:05:11]The trial court's order granting the motion to reopen expands Booker beyond what that holding is. It goes beyond the statutory basis for reopening because it applies a law or applies a case beyond what the holding is. And therefore, the order granting to motion reopen was outside of the trial court's jurisdiction.

[00:05:37]Further, Mr. Nance raised several additional claims to his motion to reopen, namely ineffective assistance of counsel and an plea.

[00:05:47]Majority of those are very easily dismissed because they are wholly outside of a reopen proceeding even if reopening was proper in this case, which it was not. The involuntary plea claims I will address um separately that no one understood that how Booker would apply.

[00:06:04]But he says there was no discussion with defense counsel about sentencing, that he was operating under extreme pressure, that the plea plea was grossly inadequate, and that the trial court erroneously determined he was he could get a concurrent non-homicide convictions, or that his non-homicide convictions could be used aggravators.

[00:06:21]He could have raised any of those claims in his original post-conviction without Booker's decision at all, and he did not do so.

[00:06:29]Therefore, they are waived and procedurally barred on any reopen proceeding.

[00:06:34]Additionally, ineffective assistance of counsel claims.

[00:06:37]Mr. Booker has already had a post-conviction proceeding. He has already raised ineffective assistance of counsel.

[00:06:43]A single Ineffective assistance of counsel is a single claim, and by raising that before, he cannot now raise new claims. All of those ineffective assistance of counsel claims are previously determined.

[00:06:57]At best, Mr. Nance can argue that no one understood that Booker would have made him eligible for parole earlier than he originally did.

[00:07:06]But again, that ruling in Nance does not render his plea to sentences that were not affected by Nance involuntary, and it cannot be used to reopen those pleas.

[00:07:18]Instead, [clears throat] at best, even relying on Howell, which the defendant relies on in his brief, a ruling that I will admit [clears throat] that if a defendant is misinformed about his eligibility for parole as stated in Howell, that can re-render a plea invalid. But for Booker, the only way that that would render a plea invalid would be a plea for life sentence for first-degree murder.

[00:07:49]It cannot be combined with the global plea to then go beyond the statutory basis for reopening and address an involuntary plea claim for offenses that would not otherwise be reviewable in a motion to reopen proceeding.

[00:08:11]Simply put, the trial court acted outside of its jurisdiction when it granted Mr. Nance's motion to reopen and address the involuntary plea and ineffective assistance of counsel claims.

[00:08:23]If there are no further questions, uh I will reserve the remainder of my time for my rebuttal for my 5-minutes rebuttal, and we ask that you reverse the judgment of the trial court.

[00:08:35]>> Thank you, General.

[00:08:36]Mr. Harrell?

[00:08:48]>> [clears throat] >> Good afternoon, may it please the court.

[00:08:52]My name is Jonathan Harrell. I'm here with co-counsel Carter Pack on behalf of Almeer Nance.

[00:09:00]Uh I would propose to spend my time uh in the following way. I'm going to spend about uh 5 minutes with a little bit of factual and framing uh how I view uh the purposes and in operation of a motion to reopen. Uh I then have two um I think fairly discrete and separate sets of claims, constitutional claims, uh and I propose to spend about 10 minutes on each of those. Uh To begin, uh in terms of factual background, the uh the state has covered most of that. It is, I think, important to emphasize that the uh sentencing plea agreement that Mr. Nance entered into after the uh guilt phase of his trial uh at the time that it was entered into, everyone would have understood that was an agreement um if they were versed in the law as it was understood then, they would have understood that to be an agreement uh precluding any release eligibility for 75 years or so.

[00:10:03]Um after Booker, we now know that uh that is not uh correct. A juvenile life sentence actually has a a lower uh release eligibility and the sentence that Mr. Nance uh was agreeing to precluded release eligibility for a little over 50 years.

[00:10:22]Um I don't want to go too much into the >> He's had relief under Booker on the life sentence by having a pro parole hearing.

[00:10:32]That is relief, correct? Even though he wasn't granted parole.

[00:10:36]>> Uh >> through the life sentence.

[00:10:37]>> TDOC has recalculated his sentence providing an earlier parole date. Yes.

[00:10:42]Um just so in terms of prior procedure, there was uh a direct appeal. There was an initial post-conviction that came up, went back down, uh was denied, was appealed. Uh interestingly, there was a prior motion to reopen that was filed uh in the wake of Miller versus Alabama. Um that was denied by uh the post-conviction court uh and then obviously this motion to reopen, which was filed uh there's no dispute within 1 year of the Booker decision um had proceedings in front of the post-conviction court uh and the court issued a very detailed and lengthy ruling on the motion to reopen uh allowing the motion to reopen and directing us to file um an amended petition. Uh and at that's that point that the state obtained a a Rule 10 um appeal. I want to talk a little bit about what a motion to reopen is, why we have it. Um obviously the statutory language 403117 that we're relying on is uh reopening can be appropriate if the claim in the motion is based on a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial. If retrospective application of that right is required.

[00:12:00]Uh here obviously we're we're relying on the constitutional uh decision in State versus Tyshaun Booker, uh which was a retroactive decision. Um we filed within a year of that.

[00:12:11]Raises the question of why uh do we limit motions to reopen? I think uh it's clear the answer is the value of finality.

[00:12:21]Um that people do not have unlimited bites at the apple in challenging their convictions. But this exception uh there is this exception to that rule. Um that you can reopen a post-conviction petition if you're relying on a new constitutional decision. I think the policy decision behind that is fairly obvious that it is not fair to penalize someone in essence for their case being too early.

[00:12:47]Right? That in a situation where if they had filed this claim before, they would have lost because the the decision recognizing the right did not exist yet, that is unfair.

[00:12:58]Uh we don't punish them um because their case happened in 1999 instead of 2025.

[00:13:05]Uh you don't lose because you were too early. And that is uh that is the basis uh the exception that we think applies here.

[00:13:13]The the the dispute obviously between the sides uh has to do with the meaning and scope of Supreme Court's decision in Booker.

[00:13:22]Uh I want to get to that because that's where uh the rubber meets the road at least in terms of my uh first claim.

[00:13:30]But, I think in order um to understand uh the argument we are making, I'd like to give a little bit of background in the sense of explaining what was it that the Booker decision did, what answers what questions was the Booker decision uh answering. Um and >> [cough] >> I'm not going to go all the way back through Graham and Roper and all of those cases.

[00:13:57]Uh they are unusual set of cases. They are essentially imposing the kind of jurisprudence that we generally only see in death penalty context into non-capital cases.

[00:14:10]Um a different way of analyzing the Eighth Amendment uh here applied to juvenile cases, but it's it's different than we usually see in ordinary criminal cases. Um The first key ruling that uh or remind the court of was Miller saying that um automatic LWOP life without the possibility of parole automatic LWOP sentences um for juveniles uh violates the Eighth Amendment. Miller court explained that LWOP might be available, was not um always precluded, but it would be uncommon um because of the nature of juvenile culpability, and therefore it could not be imposed automatically.

[00:14:53]Uh in a surprising way, I think this appeal uh or these issues actually come down in large part to the Supreme Court's subsequent 2016 decision in Montgomery versus Louisiana.

[00:15:08]Montgomery versus Louisiana was dealing with um a specific uh issue of federal retroactivity analysis under Teague versus Lane. Uh and the question in that decision was, well, it Miller um purely a procedural decision saying here is the procedure that has to be followed before a child can get LWOP, or was it a substantive decision in some way?

[00:15:34]A decision that renders a class of punishments unavailable. What the Supreme Court said in Montgomery is it's both. It's definitely procedural. There has to be individualized consideration before such sentences can be imposed.

[00:15:51]But also that it is substantive. Supreme Court said certain punishments are unavailable for certain [snorts] defendants.

[00:16:01]And we have sort of two two questions there.

[00:16:05]Eighth Amendment applies certain punishments for certain defendants. The certain defendants question, which which defendants does this apply to? The certain defendants question is answered in Miller v. Montgomery itself.

[00:16:20]The certain defendants are those whose are not the rare offender whose crimes indicate irreparable corruption in a juvenile.

[00:16:32]>> [snorts] >> It is only the worst of the worst juveniles that that fall outside this Eighth Amendment protection.

[00:16:41]In Montgomery the Supreme Court explained that Miller rendered life without parole an unconstitutional unconstitutional penalty for a class of defendants because of their status.

[00:16:54]Juvenile offenders who whose crimes reflect the transient immaturity of youth. So that's the certain defendants.

[00:17:01]Um defendants whose crimes reflect the transient immaturity of youth. Those defendants who are not incapable of being rehabilitated.

[00:17:10]Then we have the other question though of what punishments are covered. What We're saying certain punishments are unavailable for certain defendants. We know what the defendants are. What are the certain punishments? And in Miller and Montgomery, the punishments that were being discussed uh were uh life without the possibility of parole, LWOP.

[00:17:31]So, we had a period of time after Miller and after Montgomery in which there was the issue, well, what about a defendant not convicted uh sentenced to LWOP, but a defendant uh who uh has a life sentence in Tennessee, a life sentence precluding release eligibility uh for at least 51 years.

[00:17:53]And in the wake of uh Miller and Montgomery, uh this court and other courts in the state of Tennessee said, "Individuals with that life sentence, that that sentence precluding release for 51 years, they don't fall under this Eighth Amendment protection."

[00:18:09]Um in fact, Mr. Nance himself filed a motion to reopen saying, um "I uh I'm entitled to the benefit of Miller and Montgomery because I'm not irreparably corrupt, and I have um a life sentence." And the post-conviction court at that time said, consistent with our courts across Tennessee, uh we're dealing with the issue, uh the court said, "Miller doesn't apply to anything except LWOP."

[00:18:40]Uh I think I I I cited a case in the brief uh where this court said, "Well, maybe life is the next step, but right now Eighth Amendment only covers LWOP."

[00:18:52]And so, that brings us to the decision um in Booker because Booker uh was evaluating whether this line of cases um covers when we're talking about those certain defendants, is it only defendants uh in certain punishments, is it only uh through LWOP, or is it other punishments that also uh violate Eighth Amendment if imposed on this category of non uh of definite juveniles who could be rehabilitated.

[00:19:25]And the answer that the Tennessee Supreme Court gave in Booker uh is that a life sentence, meaning a sentence precluding release for at least 51 years, uh that was a punishment that is covered by that Eighth Amendment doctrine.

[00:19:42]Uh so we have uh a rejection of the prior idea that the Eighth Amendment limitation on juvenile punishments applies only to true LWOP. And the Supreme Court in uh Booker says actually it applies also um to a sentence that precludes release for 51 years.

[00:19:59]>> Well, was it at least part of the underlying basis for the Booker ruling and is that the automatic aspect of life uh did not consider factors well, just well, just such as youth or others, but such as youth. I mean, isn't that basically what they said in Booker?

[00:20:20]>> I I think that's part of it, right.

[00:20:22]Uh but that matters only if that sentence is one that is covered by uh Miller and Montgomery.

[00:20:31]Right?

[00:20:32]>> Right.

[00:20:33]>> Uh it is okay under current law for a juvenile to receive an automatic sentence for 15 years. On an on a crime that if you imagine a crime with a 15-year mandatory minimum, that is not a problem. It becomes only a problem when the punishment rises to a certain threshold when Miller and Montgomery kick in.

[00:20:54]And Booker says Miller and Montgomery don't only kick in as we've previously thought at LWOP.

[00:21:00]Miller and Montgomery kick in uh when you have a sentence precluding release for 51 years such as life.

[00:21:06]>> [clears throat] >> So I I I I have now spent uh 7 minutes sort of building up to say what it is our claim is.

[00:21:14]Our claim is that the 8th Amendment is violated when a juvenile who is not irreparably corrupt whose whose crimes reflect the transient immaturity of youth of youth, when that juvenile receives a sentence of imprisonment precluding release for at least 51 years.

[00:21:35]I believe that is the consequence of Miller Montgomery answering a question of which defendants are we talking about and Booker answering the question of which sentences are we talking about.

[00:21:48]Our claim that we have played in the motion to reopen is Mr. Nance was not irreparably corrupt. The facts are abundantly uh positive in that sense, and in any event for purposes of the motion to reopen, uh we need to be presumed um if they're played to be to be true until we get to an actual evidentiary hearing on the motion uh on the petition, which we never got to.

[00:22:11]Um Mr. Nance was never determined to be irreparably corrupt after any kind of discretionary sentencing. So, uh the the state sites a number of cases from this court uh and I know uh Judge Halliway, I know you were involved in in several of those. Uh and the distinction between those is either they are very different sentences, so there was a Brody, I think it was a 10-year sentence, a case with a plea to a 35-year sentence. Uh those don't fall under the rule about of 51 years or more um being invoked. Uh and the other cases uh it did involve uh sentencing hearings where either it was shown or it was reasonable to infer that the sentencing court uh had determined that the defendant uh was uh met met the Wilkerson factors as a dangerous offender.

[00:23:03]Mr. Nance is not irreparably corrupt. He has not been found to be irreparably corrupt. Uh, he never received a, uh, individualized sentencing determination.

[00:23:14]Uh, and yet, he has now, uh, not, not just before, but now, he still is in prison at least as long as Mr. Booker was ordered to be in prison.

[00:23:26]Right? Uh, the life sentence as now calculated, plus the 25-year, uh, and 100% on top of it, means that Mr. Nance could not get out of prison for at least over 50 years, over 52 years, depending on how you calculate the credits. That is exactly the same length of time that the court dealt with in Booker. Uh, so, it's our position, we are not advocating for an ex- expansion of Booker, we're not, um, asking the courts to go beyond, uh, existing precedent. We're saying that's what the 8th Amendment already says is not allowed. A defendant who is not irreparably corrupt cannot be sentenced to prison, uh, for a term of telling him they can't even apply to get out for 51 years. And that's exactly the situation that Almire Nance is in today.

[00:24:21]I want to shift, uh, now to the other argument.

[00:24:26]Um, it's related in the sense that it also depends on Booker. Uh, it is different in the sense I think it is a legally discrete claim. Uh, and this relates to, uh, the extent to which the sentencing plea agreement, which was a reached, uh, after the guilt-innocence phase of his trial, whereby he reached a, uh, global plea agreement of life plus 25, the extent to which that was a knowing and voluntary claim.

[00:24:56]A knowing and voluntary plea.

[00:24:58]Um there are many reasons to think it was not knowing and voluntary in in the sense that we usually think of something being knowing and voluntary. He was stressed. He was uh ill-informed. Uh he he didn't have much time to discuss. Um but I'm actually primarily making a different kind of knowing and involuntary claim.

[00:25:21]And that is >> Before you proceed, let me ask you a question.

[00:25:26]Understand the petition to reopen.

[00:25:30]Under what authority are you raising this issue now that allows you to bring up the voluntariness of the plea.

[00:25:40]All of those things that have been heard in this case and have been raised maybe not after Booker, but before. So, what authority do you have that this court has the power to rehear those things now?

[00:25:57]>> Uh and that's why I say I I I want to concentrate on a specific aspect of the claim, which is dependent totally on Booker.

[00:26:04]Um the claim that >> So so you're saying Booker also gives you the right to raise ineffective assistance of counsel again?

[00:26:12]I I'm just trying to see before you start talking about them, explain to us the power that this court has to even consider that, whether it be under Booker or some other authority.

[00:26:28]>> Uh on on ineffective assistance of counsel, I think at this point we are not making a freestanding ineffective assistance of counsel claim.

[00:26:36]Um to the extent that I don't know whether the court uh the state may at some point argue waiver. I think ineffective assistance could be relevant to to that.

[00:26:48]Um the the claim that I really want to focus on is um the extent to which Mr. Nance understood or could have understood the choice he was making um to enter into this uh global plea agreement.

[00:27:04]And the reason I think that is covered by Booker is because uh it is not until Booker came out that we now know that the choice he he thought he was making or could have thought he was making was the wrong one.

[00:27:19]Uh I'm probably not saying that very well.

[00:27:22]Um in 1999 everyone uh would have thought that a life sentence for a juvenile would have been 51 years. A life sentence plus 25 would have been 76 years.

[00:27:38]What people did not know was that was not the case.

[00:27:43]We didn't know that that was not the case until Booker came out and told us that it was not the case. And because of the way that the constitutional rulings like that work, it had never been the case.

[00:27:54]Right? The the amendment to uh the release statute that changed uh release eligibility for a life sentence from 36 years up to 51 years uh was unconstitutional and therefore it was void ab initio.

[00:28:12]Uh and so in 1999, as as is as is today, a juvenile life sentence uh constitutionally uh provided for release eligibility uh between 25 and 36 years.

[00:28:28]Mr. Nance did not know that.

[00:28:30]Mr. Nance's counsel did not know that.

[00:28:32]The judge didn't know that. No one knew it. Uh it's a weird thing about retroactive application of of a constitutional uh rule. No one knew what his and and I think hopefully my chart that I put in the brief in page 60s 6 and 68 will be better than I can probably communicate this verbally, but he's making a decision between best case scenario, the plea scenario, and the worst case scenario.

[00:29:00]And what he would have thought those three options were was wrong. Because we now know that those three options would have been something different. Because a juvenile life sentence is not what people thought a juvenile life sentence would have been.

[00:29:17]Uh so the choice he thought he was making, or his attorney, or the judge would have thought he was making, was between uh three actually terrible options.

[00:29:33]One precluding release for 51 years, the best case scenario if he fought everything and won.

[00:29:38]Uh the worst case scenario would have been an LWOP, and the plea option would have been uh precluding release eligibility for like 75 years.

[00:29:47]That's what everyone would have thought his choice was at that time.

[00:29:52]In reality, we know that his choice there's still two bad options. The worst case LWOP scenario.

[00:30:01]The plea option, which now still has him in prison for over 50 plus years. But there was at least one option uh with had he fought everything and been successful in terms of not getting LWOP uh and getting all sentences ordered concurrently. If he had fought for that option, I would have had a chance of being released eligibility after 25 years.

[00:30:24]He gave up that option when he entered into the plea. He did not know that he was giving that up that option. He could not have known that he was giving up that option. No one knew he was giving up that option.

[00:30:35]Uh and this ties back to where I I started. Um and and and hopefully this answers uh again the questions you were posing.

[00:30:44]Which is the point of this exception to um uh the the the uh exception to limitations on motions to reopen is we are not going to it's unfair to punish someone um either if they brought a claim too early and lost or if they didn't bring a doomed claim too early um because they would have lost.

[00:31:11]So, at no point prior to the decision in State versus Booker could Mr. Nance have gone into court and said, "Uh my plea was involuntary because I didn't understand what a juvenile life sentence was."

[00:31:26]Because the court would have said, "Actually, what are you talking about?

[00:31:29]Juvenile life sentence is 51 years."

[00:31:32]It's only after Booker explains a juvenile life sentence is not release a preclusion for 51 years that it even makes sense for Mr. Nance to be able to make this claim.

[00:31:43]Uh and so that's why it falls under the exception because this is a claim that could not have been made before, would not have made any sense to make it before.

[00:31:53]Uh and now we can make I think a relatively straightforward point, which is Mr. Nance made a choice.

[00:32:02]Neither he nor anyone else in the state of Tennessee at that point understood what he was giving up and what he was getting.

[00:32:11]Uh the case of Hall um uh interprets uh the decision about voluntary pleas uh the the the the general standard as a a plea is voluntary if it represents an intelligent choice among alternative courses of action. This was not an intelligent choice among the voluntary courses of action because nobody understood what the different choices were.

[00:32:34]Hall explains that uh that question of do you understand can mean not just the top number of years but also can include release eligibility.

[00:32:46]No one understood release eligibility at the time that Mr. Nance entered into this plea agreement. And that means he didn't understand release eligibility for these options at the time he entered into the plea agreement and therefore it's an involuntary and unknowing plea.

[00:33:03]This is not a claim he could ever have made until Tennessee Supreme Court issued the decision in Tyshaun Booker and therefore we believe it's appropriate for a motion to reopen his post-conviction petition.

[00:33:15]>> He filed a motion to reopen after Booker.

[00:33:22]Is that correct?

[00:33:23]>> Yes.

[00:33:24]>> Did he file that pro se or did someone file that on his behalf?

[00:33:29]>> He had counsel who filed that on his behalf.

[00:33:32]>> Okay.

[00:33:33]So we're we're at we're after Booker now.

[00:33:36]And he files a petition to reopen in accordance with Booker.

[00:33:42]Why were these issues that we're now talking about also not raised at that time?

[00:33:49]And how does that affect your request now?

[00:33:55]>> I believe they were raised.

[00:33:57]I believe they are in the motion to reopen which has a number of different claims including >> I'm talking about the one that gave him the parole hearing.

[00:34:07]>> He did not file anything to get the parole hearing.

[00:34:10]>> Automatically occurred.

[00:34:12]>> TDOC as I understand it TDOC recalculated everyone who had a life sentence and provided them with parole.

[00:34:19]So he got a custodial parole hearing. He did not do a filing that led to that.

[00:34:23]>> Okay. All right.

[00:34:23]>> This filing was the first one he filed after Booker and it included these claims.

[00:34:28]>> Okay. All right.

[00:34:30]>> Thank you, Your Honors.

[00:34:33]>> General Orr.

[00:34:34]>> Thank you, Your Honors. Just briefly, um I actually want to take this in a bit reverse to first Judge Street address your question about the authority to um consider an involuntary plea claim in a motion to reopen posture.

[00:34:48]Uh there's none cited in the defense brief, and I've not found any looking about that says clearly that in a motion to reopen posture you can then consider involuntary plea claims addressing pleas that are unrelated to the offense for which the reopening would be allowed.

[00:35:05]Indeed, uh the authority says quite the opposite that reopening is an incredibly narrow exception to the one petition rule. And any reopening has to be based on those statutory bases for reopening. And here, that brings me into the second part of my rebuttal, where I think the defend or Mr. Harwell has pretty clearly articulated where our difference of opinion and our different interpretation of Booker is.

[00:35:32]He argues that the under Booker the Eighth Amendment is violated anytime a juvenile receives an aggregate sentence that exceeds 51 years without an on-the-record finding that that juvenile is irreparably corrupt.

[00:35:46]That is not what Booker says.

[00:35:50]What Booker says is that the automatic life sentence with a mandatory 51-year service rate applied to juveniles where there is no discretion for the court to consider anything violates the Eighth Amendment, and that's only in first-degree murder cases.

[00:36:06]It does not apply to other situations where the court can exercise its discretion and impose aggregate sentences over 51 years, as this court has examined before.

[00:36:20]Instead, or excuse me, uh Mr. Harwell is an incredibly capable attorney. He's made a very, I think, compelling argument on why Graham, Roper, Miller, Montgomery, and Booker may provide a policy argument to again to revisit that procedure in the future, to revisit the global application of sentencing to the juvenile offenders. But, that is not the question before this court today.

[00:36:49]Instead, the question before this court is whether reopening is appropriate under Booker and it simply is not.

[00:36:56]Because the defendant is asking the post-conviction court in this court to apply Booker beyond the bounds of that ruling.

[00:37:05]And finally, to the extent, I know we have talked a bit about the negotiated plea and the involuntariness of the plea, and also the defendant's argument that he was the trial court never found that he was irreparably corrupt. That is because the defendant negotiated away that the need for that finding.

[00:37:23]The defendant entered into an agreed sentence where he would receive life plus 25 years, which then signaled to the trial court that it did not need to make any additional findings. This court has addressed Booker's application to those type of negotiated pleas in Mason versus State and held that when a defendant negotiates away the trial court's need to make particularized findings regarding that defendant's the appropriateness of that sentence, then Booker does not apply.

[00:37:57]>> So, uh, the the plea deal here was that rather than taking a risk of receiving, let's say, life without you take a deal where you can get out when you're 91 or 92.

[00:38:13]>> Mhm.

[00:38:16]>> Sure, I understand.

[00:38:17]>> And the testimony from the hearing was that defense counsel advised him that this was his best to get parole and that is part of the reason why he chose to enter that agreement. That still remains true today.

[00:38:31]So, unless there are any further questions from this court, we ask that you reverse the judgment of the post-conviction court.

[00:38:37]Thank you, your honors.

[00:38:38]>> Thank you. Well argued and well briefed.

[00:38:40]We'll take this under advisement.

[00:38:46]>> Ready to go, Wayne?

[00:38:47]>> Um I'm fine.

[00:38:48]>> All right, call the last case, please.

[00:39:26]We'll give him just a second to get everybody out of here.

[00:39:51]All right. Ready, counsel?

[00:39:57]>> Good afternoon.

[00:39:59]May it please the court, my name is Mike Whalen from the Knoxville Bar.

[00:40:03]I represented Ms. Dalton at trial and here on appeal.

[00:40:08]Uh I would request 3 minutes for rebuttal.

[00:40:14]>> 3 minutes, okay.

[00:40:15]>> Thank you.

[00:40:16]Uh Ms. Dalton, at the time of the offense in this case, was 21 years old.

[00:40:22]An African-American female who was the first in her family to go to and complete college.

[00:40:29]She got a basketball scholarship to Cleveland State. She It was during COVID uh and she got an extra year, so she got 3 years of schooling out of that scholarship.

[00:40:41]She finished that schooling. She came back to Knoxville. She sought and got a job in the bank.

[00:40:48]Uh she studied finance.

[00:40:50]Uh her life was going well.

[00:40:54]She was doing everything that that society could ask of a person in her position.

[00:41:00]Except possibly with her choice in boyfriends.

[00:41:05]>> [clears throat] >> And Mr. Billingsley is a fellow who uh had a documented history of abusing her.

[00:41:14]He uh on the date of this incident is blowing up her phone, which she has blocked his number, but first it's coming up as no I no ID, and then it comes up as an 865. She doesn't recognize. She answers it while she's at the store shopping for her mother.

[00:41:33]And it's him yelling and screaming, "I'm at your house. I I I I'd I'd be good to fire a few rounds in in your mama's house."

[00:41:43]She says, "I'm not there. Leave me alone."

[00:41:46]Hangs up the phone.

[00:41:47]Gets her groceries and takes goes back to her mother's house and finds Mr. Billingsley standing on the front porch knocking on the door.

[00:41:54]She pulls up, rolls down the window, and says, "You don't need to be here. You need to go away."

[00:42:01]And she's sitting there in her car with her window slightly rolled down.

[00:42:05]He walks over to her, reaches in, snatches her phone from her, and goes back over to the car he arrived in.

[00:42:13]The car he arrived in belonged to Miss Duff, who is the alleged victim in this case.

[00:42:19]In that car was also another female named Miss Hill.

[00:42:22]Miss Hill and Miss Duff were to have lunch that day. Miss Miss Hill was in town visiting for her 30th birthday.

[00:42:29]Uh they were going to have lunch and then she was going home.

[00:42:33]Miss Duff shows up at the lunch site with Mr. Billingsley in the car.

[00:42:39]Miss Hill then pulls in and sees Billingsley with a phone in his hand pacing around, she said loud and angry.

[00:42:48]He then demands that they take him to Mechanicsville.

[00:42:53]They were down on the strip and um they know that he's angry with his girlfriend, Miss Dalton, or former girlfriend, Miss Dalton.

[00:43:04]And they say, "Okay, great. Let's take you over there."

[00:43:09]So they take him over there. Miss Hill's driving, owner of the car, Miss Duff, is sitting in the back seat. Mr. Billingsley's in the front passenger seat.

[00:43:17]After he snatches her phone after he robs her of her phone, he then goes back to the car.

[00:43:24]The testimony from Miss Hill and from Miss Dalton was that Miss Dalton walked up to the car and very politely said to the females, "Can you please ask him to give me my phone back?"

[00:43:37]This is a phone which you may recall the United States Supreme Court looking at the idea of searching on on cell phones said, "Cell phones are different.

[00:43:47]Cell phones now contain the entirety of your life in there.

[00:43:50]Probably more so for a 20-year-old female than for me, but she wanted her phone back. And she went and asked very nicely. She wasn't throwing anything.

[00:43:59]She wasn't screaming. She wasn't yelling.

[00:44:02]They did nothing. He gets back out of the car, comes over, and according to Miss Hill, beat on Miss Dalton.

[00:44:11]He Miss Dalton testifies he punched her in the head.

[00:44:15]She didn't black out, but she was kind of dizzy and kind of fuzzy about what was going on.

[00:44:21]She gets hit in the head, he pulls her wig off her head and he gets back in the car and leaves with the three of them.

[00:44:30]She's sitting there, gets in her car follows him down the road. She wants her phone back.

[00:44:37]Miss Hill's testimony was that at least on two, possibly three occasions, he he he at first is a passenger, tells her to stop. She stops.

[00:44:48]He gets out of the car with the cell phone, holding it up, holding out towards her, walking in her direction like he's going to give it back and then starts smashing against the window and then goes laughs at her and jumps back in the car and they take off. This happens a couple of times.

[00:45:04]Finally up on Journeyman Avenue, the top of Mechanicsville, they pull onto Journeyman.

[00:45:13]They pull over to one side, she pulls over to the other side.

[00:45:17]He gets out of the car and again has the phone up as even as Miss Hill said, toying with her.

[00:45:22]Miss Hill test- testified that yes, she had electronic locks on the car doors that each time he got out of the car, she could have just pushed the button, locked him out of the car and said, "You don't get back in till you give me her phone."

[00:45:36]She said, "Yep, I could have done that and I was not happy with him. I didn't like that he laid hands on her."

[00:45:42]He told the She told Miss Hill told the police he should be responsible for all this. He beat on that girl.

[00:45:49]So, the state of Tennessee looking at these circumstances, well, she's Now, they're on they're on Journeyman.

[00:45:55]He gets out of the car again, holding out the phone. Instead of giving it back, he goes to the side of the road, picks up rocks, flings them at her, then picks up a concrete block.

[00:46:06]The state, I believe, got this wrong in their brief.

[00:46:09]They say she never he never had that as a weapon.

[00:46:12]Ms. Hill's testimony was and Ms. Dalton's testimony was, and there is a video from the neighbor's house that shows Mr. Billingsley with a concrete block running towards her car.

[00:46:24]She backs up. He turns around, gets goes back to the car, puts the block in the car. He's just picked it up off the side of the street.

[00:46:32]She comes up because in all of that little last encounter, she thinks he's thrown her phone in the road.

[00:46:41]So, she pulls back forward to see if that's her phone.

[00:46:44]And she testified, he said, "I'm going to kill you."

[00:46:49]And then he goes back to the car. Ms. Hill says, when he comes back to get in the car, it's because she said, "Get that block out of my car."

[00:46:57]or out of the car.

[00:46:58]And he was reaching in for the block to get it out. She sees that.

[00:47:03]Hears him say, "I'm going to kill you."

[00:47:05]Fires one shot out of the gun he bought her for her protection because she was moving to dangerous Cleveland, Tennessee to go to college.

[00:47:16]And not through the back passenger window, but through what would have been the old vent window behind the back passenger window, a smaller window.

[00:47:26]One bullet, one shot through that window and hits Ms. Duff in the head, who's sitting in the back seat.

[00:47:33]And she she dies at the hospital, but for all intents and purposes, she was dead the minute that bullet came through the car.

[00:47:42]So, state looks at all these facts and says, "Well, this woman's been robbed.

[00:47:45]She was beaten uh while standing in her own front yard.

[00:47:51]I know. Let's charge her with murder.

[00:47:54]And we'll also, just to make it more interesting, throw in an aggravated assault charge where she aggravatedly assaulted Mr. Billingsley by firing into the the car in which he was an occupant.

[00:48:05]Denying that the fact that he was the one who robbed her and that these two females who knew he was angry at Ms. Dalton agreed to take him instead of saying, "Sorry, Junior. You're on your own. You can walk to Mechanicsville. It's not that far from the strip."

[00:48:24]This incident would not have happened but for their actions.

[00:48:28]Ms. Hill then gets in Duff's car and drives the three of them to to Mechanicsville.

[00:48:33]When they then after the shooting go to UT Hospital, that's where this car is found with Ms. Duff's body in the back of it.

[00:48:42]At some point, they get around to searching the car and they find uh what Detective Perry testified was drugs in the trunk along with about 30 about $3,000. I think it was 2,800 change [clears throat] and then another $85.

[00:49:01]So, about $3,000 in in cash and about 30 some odd grams of what they believe were controlled substances. They never tested any of it.

[00:49:14]They never asked. They they interviewed Ms. Duff. They interviewed Mr. Billingsley. They interviewed Ms. Dalton.

[00:49:21]>> Did Ms. Dalton know if those items were in the trunk?

[00:49:25]>> No. And I know that's one part of what the state's argument is.

[00:49:29]Doesn't matter. The point is you're putting on this Ms. Hill as a witness and I say her credibility is at stake as it is with every witness.

[00:49:41]And in that vehicle and beyond that that we had this argument. We had a a hearing because the state now files a 404b motion in every trial.

[00:49:51]Uh Zae ain't don't let them talk witnesses or parties and uh for the state's case."

[00:49:57]So, we filed a motion to have the hearing on that issue.

[00:50:00]Saying, "I should be able to talk to them, the police, about the fact that there's money and drugs in the in the trunk." Why did no one in that car call, if they felt they were in danger, why did none of them call 911?

[00:50:15]Well, for one, you just committed a robbery.

[00:50:18]As we heard about the argument earlier, the first argument today, three or four people plan a robbery, we all know somebody gets killed, that's felony murder for everybody. If three or four people commit a a robbery and one or two of them stay outside, there's still going to a chance they get convicted of the robbery.

[00:50:37]These people were acting together.

[00:50:40]Did they I don't know if these two females knew what he was going to do when they got there, but I can tell you right now they saw every single moment of it.

[00:50:48]And they testified to it. Miss Hill said, "It made me mad."

[00:50:53]She told the police, "He's responsible."

[00:50:56]He beat on that woman.

[00:50:58]And then we're at trial, she said, "Well, when I say beat on, I mean, she he he pulled her wig off, and that's a form of beating."

[00:51:06]And I said, "Yeah, you told the police he beat her."

[00:51:09]You've heard her You know, she's she says he hit her in the head. You're saying that's not what happened. Well, maybe.

[00:51:15]>> That would have been a good time if he was going to shoot him to shoot him if you wanted to claim self-defense.

[00:51:20]>> Well, at that point, she's outside her car.

[00:51:23]The gun is actually in the car. She hasn't even been She hadn't been in the house. She shows up, he robs her in the driveway.

[00:51:30]I I I submit they rob her in the driveway.

[00:51:35]Uh, they drove him over there knowing he was angry with her.

[00:51:39]And then they watch him toy with her.

[00:51:43]Well, it's probably a a mile and a half, 2 miles the path they go from uh his home or her home there in Mechanicsville up to Germantown.

[00:51:54]They see him toying with her and don't say, "Give her the phone back." Not once.

[00:52:00]The Miss Hill said they did nothing to insist on it. They told him at one point, "You ought to give her the phone back."

[00:52:08]So, we had a hearing. The judge found that because there was no testing on the substance, we couldn't talk about the fact that there was drug that there were drugs and money in the car. At the hearing, I had investigator uh on the stand and said, "Did you search the car?" No. "But someone searched at your your request?"

[00:52:32]Yes. "And you know what was found?" He said, "Yeah, drugs."

[00:52:36]"Oh, and money, right?" Yeah, money, too.

[00:52:39]So, the officer that detective's testifying it was drugs and money.

[00:52:44]The point is that if I'm going to have an opportunity for a fair trial and to put their witnesses to the test, I should have been able to ask her about why were there drugs and money in the car. She could have said, "I didn't know there were drugs and money in the car."

[00:52:59]But we didn't get a give her a chance to get there or to give a jury a chance to hear that testimony and make their determination about whether or not what she was saying was true.

[00:53:10]The Mr. Billingsley sat outside the courtroom in the courthouse. I ran into him four or five times during the trial.

[00:53:19]Uh they never called him, which I would think was pretty smart on their behalf cuz he'd been a horrible witness given that everybody's talked about him beating this woman this young woman uh and then stealing her property and then teasing her all up and down the road about trying to give it back cuz he knew what she wanted. She did not want to shoot Miss Duff. She did did want to shoot Miss Hill. She didn't necessarily want to shoot Mr. Billingsley. She wanted her phone back.

[00:53:47]Her property back, which he just stole from her while beating her in her front yard.

[00:53:53]And they did not do that. They kept up the game all the way to the end when he says to her, "I'm going to kill you."

[00:53:59]and has had a concrete block over his head at one point and then running at her car with it. That's on the video.

[00:54:07]Uh so, at that point uh we should have been able to ask about that.

[00:54:13]The um idea that uh they could have called her, Ms. Duff, an an innocent victim, an innocent third party.

[00:54:26]We won a great victory. The court's going to give us a self-defense instruction, which includes a part that says, "Unless, of course, the victim is an innocent third party, at which point she doesn't have He doesn't have access She doesn't have access to self-defense."

[00:54:42]The judge The trial court said uh at least on two occasions uh that uh at one point we were arguing about charging uh the court says that he finds no reason to believe that she contributed Ms. Hill or Ms. Duff contributed in any way to this conduct.

[00:55:05]Yeah, other than taking the angry young man over to the house to beat up his ex-girlfriend, steal her property.

[00:55:13]They didn't have anything to do with it other than remaining in a car with him and letting him get back in and out of that car while he's playing phone games with her and not giving her phone back.

[00:55:23]She did They didn't have any responsibility in this conduct.

[00:55:27]Uh and he said that as to Ms. Duff whose life was senselessly taken, I cannot find that she was in cahoots with Mr. Billingsley.

[00:55:37]And acted in concert with him to rob the defendant defendant of her cell phone.

[00:55:43]Based on what?

[00:55:46]It was her car.

[00:55:47]She was intending to do something else to have lunch with her friend and instead drives this angry man over there, watches him rob her and beat her.

[00:55:56]And then watches this play going on up the road.

[00:56:00]How what more would she have to do to be acting in cahoots? So then to tell the state, "Sure you can call her an innocent third party."

[00:56:08]Because I don't find that she was anything but an innocent third party.

[00:56:13]That misleads the jury and is an irrational finding by the court because he had nothing in the record on which he could base that decision. He actually said in in talking about the drugs and money, "I believe the drugs and money believe belong to Mr. Billingsley most likely."

[00:56:32]Nobody's heard from Mr. Billingsley.

[00:56:35]Nobody's heard who put the gun the money and drugs in the car. Nobody's had any conversation other than that was found in the trunk at the hospital.

[00:56:43]Or when they impounded the car and like towed the car later.

[00:56:48]But both of those assumptions by the trial court were just wrong erroneous.

[00:56:52]And that's the thing that both the United States Supreme Court and our Supreme Court have said should be avoided by the mechanicalistically up up applying a rule which interferes with a uh defendant's right to provide a complete defense.

[00:57:11]And that's that can be nothing more because the reason for that decision was I believe irrational.

[00:57:20]Uh my time is expired unless the court has any questions.

[00:57:23]>> Thank you, William.

[00:57:24]>> Thank you, sir.

[00:57:26]>> You know what?

[00:57:28]You get the >> Good afternoon, your honors. May it please the court. Garrett Ward on behalf of the state of Tennessee.

[00:57:35]Uh your honors, this court should not grant relief to Ms. Dalton in this case because her sort of interrelated claims challenging various aspects of uh the trial court's rulings with regard to how she could introduce evidence about the victims in this case and how the state could refer to the victims in this case. None of these complaints have an ounce of merit.

[00:58:00]Um your honors, I I take there to be three separate interrelated claims here. I'm going to deal with two of them at once because I think they're more closely related and that's the uh Shannon Christian Act claim and the sort of very brief claim related to the right to present a defense.

[00:58:19]Um so, as this court is doubtless aware, uh the Shannon Christian Act essentially applies the requirements of Rule 404(b) from our rules of evidence to victims and witnesses.

[00:58:32]Um So, under that under that rubric, assuming the trial court substantially complies with the requirements of that statute, that rule of evidence, uh the review of its decision to exclude or admit that evidence is reviewed for abuse of discretion. I think that's important to sort of establish from the off uh because I don't think there's any dispute here that there was substantial compliance. There was a pretrial hearing, the court analyzed the requirements of the rule, and then excluded the evidence. That's substantial so the burden the defendant must bear before this court on the on the act is that the court abused its discretion and she simply cannot meet this burden.

[00:59:11]Um for a variety of reasons.

[00:59:13]Uh first and foremost, there is no there was no reason articulated below in the briefs or I or in my opinion really before this court at argument, uh no reason as to why this evidence should have been introduced other than to essentially make a propensity argument about uh Mrs. Hill and Miss Mrs. Hill and Duff uh in this case. Um the way it is argued in the motion, the way it is laid out in the brief, it seems that Ms. Dalton's uh large sort of chief aim here is to buttress her self-defense argument by pointing to the presence of drugs and money in the back of this car um to suggest to the jury, well, these two women had drugs in their car, so they you know, they possessed narcotics, they break the law, so they're likely to have, you know, participated in this robbery of me with Mr. Billingsley. Um your honors, what I'm laying out for the court is just a propensity argument by Ms. Dalton wants to point to something that these women have allegedly done and say, therefore, in this unrelated case, they're also acting poorly.

[01:00:28]Now, I'll take a brief moment. I do believe my friend on the other side um suggested that maybe there was a some sort of credibility value here.

[01:00:39]Um I'm a little un- unpersuaded by that given I'm a little unpersuaded that that was the reason for introducing this evidence given the way it was briefed and argued in the trial court. I I From my read of this record, we're dealing with a pure um and the trial court would have been well entitled to point to that, say, well, the the rule and the act don't allow you to do that. This evidence is is staying out. Um but even even assuming that there's some credibility value, um so I'll I'll just for the sake of argument, I'll assume there's some credibility value to this drugs and money claim that that was the true purpose for introducing it, that her idea was, "Well, I want them to disbelieve the testimony of Ms. Hill um by pointing out that she had narcotics.

[01:01:27]I'll I'll note for the court this this argument wouldn't really apply to Ms. Duff. Um Ms. Duff's credibility wasn't at issue because Ms. Duff had been killed by Ms. Dalton at this point. Um but assuming there's some credibility value here, the claim still fails because there's no breach of a clear and unequivocal rule of law here.

[01:01:50]Um Or the the the claim still fails because the trial court properly concludes that uh there's no clear and convincing evidence establishing this bad act and by conducting the balancing analysis required by 404b and saying sort of the danger of prejudice outweighs the probative value. On clear and convincing evidence, um my friend on the other side, as he describes this hearing, notes that Investigator Terry testifies uh at this pretrial hearing and essentially points to his testimony and says that well, that meets the clear and convincing evidentiary burden um and sort of throws his hands up in confusion as to why the trial court would have found the opposite. And I'll I can shed some light on that for the court because Investigator Terry's is Terry is simply the wrong witness to call to establish this fact. Investigator Terry is a homicide investigator. He sort of initially encountered this case um in a homicide posture. He was not on scene at UT Hospital to search the car where this substance is found. He doesn't conduct this search. There's no evidence at this pretrial hearing that he ever sees whatever this substance is. All that we have is him repeating some fact that's in in probably in some sort of report um that there were drugs found in the back of the car.

[01:03:12]No indication of what those might have been. Um no indication from the testimony at this pre-trial hearing as to why investigator Terry believes that to be correct. There's simply nothing.

[01:03:23]So, as the trial court puts it, there's probably clear and convincing evidence that there's sub subs that there is some substance in the back of the car, but not clear and convincing evidence that it's a controlled substance.

[01:03:33]So, as to the narcotics, I think there's no clear and convincing evidence here. But, perhaps most importantly, we get to where we where 404(b) issues are often resolved, and that's the balancing test. There is a great deal of danger of risk of unfair prejudice by talking about this evidence in this case compared to almost no probative value because Judge Montgomery, as you noted during my my opposing counsel's argument, there is no indication anywhere in this record from anyone that whatever was in the back of this trunk had anything to do with this case.

[01:04:14]There is zero probative value to whatever is in this trunk.

[01:04:18]But, there's a great deal of risk of unfair prejudice in allowing a party to make a to make propensity arguments. That's something this court has noted. That's something the our Supreme Court has noted. It's something the US Supreme Court has noted that when we ask juries to render judgment based not on the facts of the case, but on sort of their metaphysical feelings about what somebody's prior actions might have meant they did on a certain day, that that is prejudicial to the administration of justice.

[01:04:46]That is a great deal of risk of unfair prejudice to I'd suggest no probative value. Maybe the tiniest bit if if this court is inclined to accept that credibility the credibility argument. Maybe there's the tiniest bit as to the credibility of Ms. Hill, but certainly not enough to to overcome the 404(b) balancing test, which is, as I'm sure this court is aware, a test of exclusion rather than a test of inclusion. So, saying all of that, the defendant simply cannot meet her burden of showing this court that the court abused its discretion in applying the rule here. What that would mean is this court would have to think no reasonable judge could think that the trial court had made the right decision.

[01:05:27]That every reasonable juror would have to be in agreement that the trial court had erred.

[01:05:33]She simply can't do that. Perhaps reasonable minds could differ here. I'd suggest most reasonable minds would exclude the evidence. That's what the trial court did. This was not an abuse of discretion.

[01:05:42]>> [snorts] >> On the related right to present a defense claim, uh Your Honors, this claim is waived. It was not presented anywhere below. Not in the motion for new trial. Uh not in not in any sort of pre-trial posture.

[01:05:55]There is a pre-trial hearing on the Shannon Christian Act.

[01:05:59]There's no litigation at that point of this right to present a defense claim.

[01:06:04]It's not raised in the motion for new trial. It is waived. It is solely reviewable for plain error.

[01:06:09]The defendant has not requested plain error review.

[01:06:12]Um despite the fact that the state raised waiver plainly in its opening brief. The defendant hasn't requested plain error review, hasn't acknowledged waiver. Um so, I'd suggest the proper thing for this court to do would be to resolve the issue there. Um I'm happy to answer questions about applying plain error to this right to present a defense claim. Um but if this court doesn't have any, I'll largely rest on my uh 404(b) argument to and and point to that to say the defendant has not shown criticality, which is a requirement under Flood for the right to present a defense claim.

[01:06:46]She has not shown that this allusion that that whatever is in this trunk is critical to her defense to her self-defense claim. It is of little if any value for the reasons I've I've previously stated to this court. Um I'm happy to answer further questions.

[01:06:59]Otherwise, I'll move to this what I take to be a closing argument claim.

[01:07:05]Um again, Your Honors, not to sound like a broken clock, but we have waiver problems here because there isn't an objection to this innocent third party reference during the state's closing argument.

[01:07:19]Um So, given that we have no objection at trial, this issue is again on plain error and once again the defendant hasn't requested it, hasn't acknowledged waiver. So, I suggest this court again refuse to engage in this unrequested, unbriefed um standard of review for the defendant.

[01:07:39]Uh should this court choose to do plain error review, the defendant's claim still fails uh because she can't meet the requirements. Principally, she can't show that there was that this failure to object was non-tactical. Um this court recognized in Lamply recently that sort of the decision to make or not make any objection, any specific objection in opposing counsel's argument is it is sort of primarily tactical.

[01:08:04]Um and I think that's a really easy conclusion to reach in this case because Ms. Dalton's counsel was objecting at closing argument. Made a number of objections, I believe four in total, three during and then a fourth at the close. So, what the record shows is that during closing argument, Ms. Dalton doesn't have a counsel who's sort of asleep at the wheel, not paying attention to what the state is saying.

[01:08:25]She has a counsel who is objecting repeatedly. So, this court should look to this record and conclude, well, we have a counsel who's actively participating, who's raising objections when he finds appropriate. When he doesn't find them find them appropriate, he's not making those objections. So, this failure to object is tactical. He doesn't think it's a good objection.

[01:08:43]When he thinks they're good objections, he makes them.

[01:08:46]Um even even if she can get past that, which she can't, your honor, there's there's no breach of clear and unequivocal rule of law here.

[01:08:53]Um Ms. Dalton in her principal argument uh repeatedly pointed to evidence to suggest that Ms. Duff, Ms. Hill were not innocent third parties. She goes so far, I believe, if I recall the argument correctly, as to describe herself as the only innocent third party in this case.

[01:09:12]A sort of difficult characterization given that she shot and killed Ms. Duff.

[01:09:17]Uh but nonetheless, so so this this offending comment arises during rebuttal. The state is allowed to respond to this argument.

[01:09:26]Ms. Dalton has made an argument that that Ms. Duff, Ms. Hill are not innocent third parties. The state is allowed to argue to the opposite, and that's largely what we see here. What this court will see when it reviews the record of closing argument is the prosecutor pointing to the absence of any evidence uh that Ms. Hill and Ms. Duff participated in this robbery.

[01:09:46]Um and asserting that based on that absence of evidence um that you should conclude they're an innocent third party. Maybe it's not said that precisely, but the prosecutor points to evidence and then suggests a conclusion that that evidence demands.

[01:10:00]Um that's permitted under under Golts and sort of the the cases running from that. Um I want to sort of briefly respond to this suggestion that perhaps that you know, because the trial court does make a comment that there's no evidence that Ms. Duff and Ms. Hill were in c- cahoots, I believe is what the trial court says, with Mr. Billingsley.

[01:10:24]Um and I'll largely note for this court that that is correct. The the evidence that the state points to, that the evidence that the trial court points to, is the absence of evidence showing they knew, had any idea what Mr. Billingsley was going to do. Certainly they knew Mr. Billingsley was angry, and they drove him to Ms. Dalton's house. But what is absent from the record is any indication that they knew when they got there that he was going to do any of what he did.

[01:10:51]Um and that's really that's what the state points to in its argument, then it asks for the jury to draw a conclusion.

[01:10:58]Trial court thought the same thing.

[01:11:00]That's that's simply an inappropriate argument. I might also suggest that substantial justice doesn't require consideration of this error.

[01:11:08]Um this is a pretty passing comment uh given the strength of the other evidence in the case. There's no dispute that uh Ms. Dalton shot and killed Ms. Duff. Uh the strength of the other evidence in the case, the passing nature of this comment, the state sort of uh doesn't dwell on it, doesn't necessarily drive it home. Um Suggest that that that that plain error requirement is also not met. Uh if this court has further questions, I'm happy to answer them.

[01:11:33]Otherwise, I would ask that you affirm.

[01:11:37]>> All right, thank you.

[01:11:38]>> Thank you, Your Honors.

[01:11:39]Mr. Weldon.

[01:11:43]>> Just to be clear, not then, not now do I would I intend that as propensity evidence.

[01:11:49]What I'm saying is if the state intends to tell the jury that this individual shot in the back seat of this car is an innocent third party, the defense should have an opportunity to say, "How many innocent third parties are driving around with felony amounts of control of some substance in their car along with $3,000 in cash?"

[01:12:14]That's why we were offering it. We were offering it because the credibility of witnesses and of the state's witnesses in general, including the woman who was in the back seat, is always at issue. And especially if they're going to stand up and say she was an innocent third party.

[01:12:31]Um the idea that Investigator Terry can't All he could say was, you know, was he he's in a homicide investigation. He tried that tactic and it didn't work. I asked him, "You weren't always a homicide detective, were you?" No. "You were a patrol officer for a while?" Yeah. "Did you do stops where you made drug arrests?" Yes. "If you found 30 you know, an ounce of some substance in the back of the car and $3,000 in cash, you'd be all fired up about felony offenses, wouldn't you? Probably.

[01:13:01]So, [clears throat] for him we can't just say he was a homicide investigation, so it doesn't matter. Uh and again, the idea, I've been doing this a long time. This is one of the two cases, this one and the neck my last appellate case will be the two that convinced me it's time to quit. Uh if I can't win on those facts, I can't win anymore.

[01:13:22]Uh one of the things that has always concerned me most is a fair trial.

[01:13:29]That's what we're trying to get to here. The idea that we're going to argue waiver on an issue I asked for a hearing on, had a hearing on, got denied on, and then say, "Well, why didn't you object it when they said it during closing?" Because the judge told them they could say it during closing.

[01:13:48]Yeah, so I'm on the record objecting, but I don't have to look unpleasant and object into to the jury in closing argument when I know the judge has told them they can say the thing I'm going to have to object to. I have already objected to it. My objection is noted throughout the record on that issue.

[01:14:10]Waiver is kind of like harmless error. You know, if it was my if it was your homicide trial, how much harmless error would you say was a reasonable?

[01:14:20]I'd be asking for none, you know, in mine. Uh and that I think is the point.

[01:14:27]This This young woman was robbed, beaten, and it was in cahoots with these two females. They did see what she did.

[01:14:37]They saw every bit of that, and all that all Ms. Hill had to do, who was still in the driver's seat, and I asked her directly, "Got electric button, right?"

[01:14:47]Yeah. All you had to do was hit it and lock him out of the car and say give her the phone back.

[01:14:53]Or we're not giving you her right out of here.

[01:14:55]Instead, she continued to assist him by driving him away from the crime scene which she had just witnessed. If that ain't in cahoots, I don't know what cahoots is.

[01:15:08]I we would ask the court to set aside the conviction or order a new trial or whatever relief the court chooses.

[01:15:15]>> Thank you, well. All right, well argued.

[01:15:16]We'll take this case under advisement, too.

[01:15:19]That concludes today's docket. Thanks everyone for being here.

[01:15:25]Court ready?

[01:15:26]>> All right.