State of Tennessee v. Riley Christopher Wilburn - Concurring ( 2021 )

06/22/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE v. RILEY CHRISTOPHER WILBURN
Circuit Court for Giles County
No. CR-14592
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No. M2020-00130-CCA-R3-CD
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JOHN EVERETT WILLIAMS, P.J., concurring
I agree with the majority’s opinion that based upon the current status of caselaw, the
indictment was not duplicitous and the resulting verdict did not violate the Defendant’s
right to a unanimous jury. However, I write separately to emphasize that while the
language in the indictment and the resulting verdict were not unconstitutional, the practice
employed by the State in drafting the indictment and by the trial court in failing to provide
an enhanced unanimity instruction also is not advisable.
As set out in the majority opinion, DUI through impairment and DUI per se are not
separate and distinct criminal offenses but are separate modes or theories by which to
establish the single criminal offense of DUI. A plurality of the United States Supreme
Court has recognized that “the jury need not agree as to mere means of satisfying the actus
reus element of an offense” or “to the alternative means of satisfying the elements of mens
rea.” Schad v. Arizona, 501 U.S. 624, 632 (1991) (plurality opinion), abrogated on other
grounds by Edwards v. Vannoy, 141 S.Ct. 1547, 1556 n.4 (2021). In Schad, a plurality of
the United States Supreme Court upheld a first degree murder conviction from Arizona
although the indictment charged a single count of first degree murder based on the
alternative theories of premeditated murder or felony murder and the jury returned a
general verdict of guilt for first degree murder without specifying whether the verdict was
based upon felony murder or premeditated murder. Id. at 632-45. The Court noted that
Arizona recognized that premeditated murder and felony murder are not separate offenses
but alternative means of satisfying the mens rea element of the single offense of first degree
murder. Id. at 637-39. The Court stated that it had “never suggested that in returning
general verdicts in such cases the jurors should be required to agree upon a single means of
commission, any more than the indictments were required to specify one alone.” Id. at
631; see State v. Cribbs, 967 S.W.2d 773, 787 (Tenn. 1998) (citing to Schad and holding
that a general verdict of guilt on first degree murder is not unconstitutional even though
some jurors may have convicted the defendant based upon proof of felony murder and
other jurors may have rendered a verdict based upon proof of premeditated murder).
The holding in Schad was based upon due process grounds because, at that time, the
United States Supreme Court did not recognize that the Sixth Amendment right to a
unanimous jury verdict applied to defendants convicted in state courts. Schad, 501 U.S. at
634 n.5, abrogated by Edwards, 141 S.Ct. at 1556 n.4. Nevertheless, the Court noted that
the distinction between a due process analysis and an analysis under the Sixth Amendment
was “immaterial to the problem of how to go about deciding what level of verdict
specificity is constitutionally necessary.” Id. Furthermore, the Tennessee Supreme
Court noted no case in which the court has held that “the right to a unanimous jury verdict
encompasses the right to have the jury unanimously agree as to the particular theory of
guilt supporting conviction for a single crime.” State v. Keen, 31 S.W.3d 196, 208 (Tenn.
2000) (citations omitted). Thus, while I question the validity of an indictment and a
verdict under which six jurors may base their finding of guilt upon the provisions of DUI
through impairment in Tennessee Code Annotated section 55-10-401(1), while the other
six jurors base their finding of guilt upon the provisions of DUI per se in section
55-10-401(2), I am bound by the authority of the United States Supreme Court and the
Tennessee Supreme Court holding such verdicts constitutionally permissible.
While both the United States Supreme Court and the Tennessee Supreme Court
have upheld the use of general verdicts, both courts have discouraged their use. In Schad,
the United State Supreme Court stated that it did not “suggest that jury instructions
requiring increased verdict specificity are not desirable” and that the Supreme Court of
Arizona had recognized the usefulness of separate verdict forms in cases submitted to the
jury on alternative theory of premeditated and felony murder. Schad, 501 U.S. at 645(citing State v. Smith, 774 P.2d 811, 817 (Ariz. 1989)). The Tennessee Supreme Court has
stated that “[e]ven though it is not constitutionally or legislatively required, specificity in
the verdict is desirable and conductive to accurate sentencing determinations and effective
appellate review.” Carter v. State, 958 S.W.2d 620, 624 n.6 (Tenn. 1997).
The use of general verdicts that allow the jury to consider alternative means of
committing a criminal offense in returning a single verdict creates several issues for this
court, as well as both parties, on appeal. Such cases may give rise to difficulties in
evaluating the sufficiency of the evidence supporting the conviction, the impact of an
improperly denied motion to suppress, or the impact of evidence that was otherwise
erroneously admitted. Given the complications that may result, I question why the State
would charge a defendant with alternative means of committing a criminal offense in the
same count of an indictment and why the trial court would allow the jury to return a general
verdict without specifying the means of committing the offense upon which their verdict is
based. After reviewing the caselaw, I agree with the majority but conclude the better
practice would be to charge separate offenses and require separate verdicts, which would
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increase public confidence in the validity of the convictions.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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