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IN THEC:OURrI' 01:CRIMINAL.APPEA1,S OF TENNESSEE A?' 'KNOXVILLE
STATE OF TENNESSEE I. LETALVIS COBBTNS, 1,EMARTCUS DAVIDSON, and GEORGE THOMAS
Criminal Court for IOlox County 30s.86216A, 86216B. & 86216C
NO. E2012-OO448-CC.4-KIO-DD
ORDER
The State of Tennessee. through [he 0fIic.e of tlie Attorney Gcncral, has filed an application for an extraordinary appeal. see Term. R. App. P. 10, seeking review of thc trial court's order granting the Defendants ncw trials on grounds that: (I) fo~merJudge Richard Baumgartner, who presided over each of the Defendants' trials, committed "nunierons cgcgious actions" in violation of both the criminal law and the Code of Judicial Conduct while presiding over the cases resulting in structural en-or that denied these Defendants their rights to fair trials; and (2) former Judge Baumgartner did not discharge his duty as the thirteciith juror in these cases before leaving thc bench and the successorjudge on these cases "is unable Lo serve as thirteentlijuror" given "the nu~nerous issues concellling the credibility of both cei-lain tcstifyiiig witnesscs and the trial judge."
In our rcview of this matter, we first will set out the chronology. The Defendants were found guilty by three separate ju~ics of the first degree murders of Channon Chtistian and Christopher Newsom as well as varioi~s other non-capital offenses arising oul of the same criminal episode that resulted in the inurders; including, but not limited to, especially aggravated kidnapping. aggravated rape, and especially aggravated robbery.
The Defcndants were tried separately on the following dates:
Dcfcndant Cobbiiis:  .August 17 lhrough August 26,2009  
Defendant Davidson:  October 10 through October 30, 2009  
Defcndan t Thomas:  December 1 through December 10,2009  

Ilcfendant Lemaricus Davidson was sentenced to death by his jury for the murders of both Christian and Newsoin. Defendant George Tl~omas was sentenced to life without the possibility of parole for the murders of both Christian and Newsoln by his jury. Defendant Letalvis C:obhins was sentenced by his jury to life without the possibility of parole for the murder of Christian. Defendant Vanessa Coleman, who is not a party to this motion, received an effective sentence of fifty-three years for faditation of the first degree murder of Christjan, as well as for her other convictions. Her trial was held from May 3 through May IO,20t 0.
At thc sentencing heal-ings on the Defendants' non-capital convictions, former Judge Baumgartner co~nmented at length on his lienJ of the evidence presented during each of the trials in the caul-se of his discussion of the appropriateness of applying certain statutory aggravating and mitigating circurnstanccs to the non-capital sentencing decisions. Subsequently, on March 10, 201 1, he pled guilty to one count of official misconduct and resigned fsonAl the bench that same day. At that point, the Defendants' motions for new trial had not yet been heard. Subsequently, Senior Judge Jon Ke11-y Blackwood was designated by the suprclne court to hear the Defendants' motions for new trial and perform all other duties required of a trial judge on thcsc cases.
On June 9,201 1 , a hearing was held 011 the motion for new trial filed by counscl for Defendant Cobbins. At that hearing, Senior Judgc Blackwood stated that he believed he could "procced with the inotion for a new trial."
Senior Judge Blackwood then proceeded to discuss, based upon his review of the record in this case, the extent he believed that witness credibility had been a factor. Hc then conc;luded that while witness credibility "play[edl a part in every crimii~al trial," there was "ample other physical evidence in the record" and "ample other testimony in the record" such that he could discharge his responsibility as thirteenth juror in the case. Senior Judge Blackwood then announced that he "accept[cdl and approve[d] the verdict of the jury as the 13"' juror." However, he announced that he would not enter an order denying Defcndant Cobbins' motion for new trial until defense counsel in that case and the other cases had an opportunity to amend their motions for new trial and present argument at a hearing on the structural error issue that had been raised by counsel for Defendant Cobbins in an amendment to his nlotion for new trial filed on the morning of the June 9, 201 1 hearing.
Counsel for the Defendants subsequently filed amended rnotio~ls for new trials, asserting both the structural error and thisteenth juror arguments. At the conclusion of the hearing on the amended motions, Senior Judgc Blackwood granted all four Defendants new trials based both upon his stl-uctural error finding and his collclusion that he could not act as thirteenth juror in this case. In his findings of facts and conclusions of law, entered following the hearing, Senior Judge Rlackwood concluded that former Judgc Baumgartner had not acted as thirteenth juror as to thc trials and that they "were beset by significant credibility concerns segarding both cci-tain witnesses and the trial judge." The order stated that while tlie court "had previously determined that it was able to serve as thirteenth juror
in Mr. Cobbins' case, .. .any order denying Mr. Cobbins' motion for new tiial relative to the thirteenth juror issue [was] hereby withdrawn."
Defendant Coleman is not a party to this motion. The State did not seek to appcal the granting of a new trial as to Coleman. In its Rule 10 application, the State asserts that cc[b]ccause the thirteenth-juror rule was already satisfied prior to [Senior] Judge Blackwood's designation to hear these cases, Judge Blackwood exceeded his authority to vacate the juries' verdicts under the thirteenth-juror rule." Finally, citing to State v. McKim, 215 S.W.3d 781, 792 (Tenn. 2007), the State argues that without an extraordinary appeal in these cases, it will "lose a right or interest that may never be recaptured," because if the Defendants are retried, the challenge by the State to the order granting the new trials will have become moot. We will consider these claims.
Ii~itially,we note that our decision in this order pertaining to the State's Rule 10 application can neither affirm nor reverse the trial court's grounds for granting new trials. Furthermore, if the State's application to appeal were granted, only two possible results could occur in each case following briefing and oral arguments. Either the trial judge's order granting a new trial would be affirmed on at least one of the grounds (affirmance of the order would not require agreement with the trial court on both grounds) and new trials for each Defendant would be held, probably many months after they are currently scheduled; or,this court would reverse the trial court's order granting new trials, and then the trial court would have to rulc on the remaining grounds for new trial asserted by Defendaiits Cobbins, Davidson, and Thomas. The results of the hearings on the remaining grounds for new tiial could result in the trial court again granting a new trial to one or more of the three nan~ed Defendants, or if all the motions for new trial were denied, then the Defendants would be entitled to appeal their convictions and sentences a second round of appeals. Meanwhile Defendant Colen~an's new trial would have been held, and, if she is convicted again, her appeal from those convictions could be well on the way toward final disposition. We mention this sceiiaiio not to state what we feel should or would occur, but only to point out some of the considerations made when contemplating judicial efficiency. Wc next will review the circumstances under which the Statc's Rule 10 application inay be granted.
First, we notc the court rulcs which arc applicable to our considcration.
Rule 33(d) of the Tennessee Rules of Criminal Procedure provides that "[tlhe trial court may grant a ncw trial following a verdict of guilty if it disagrees with the jury about the weight of the cvidence." In State v. Carter, 896 S.W.2d 1 19, 122 (Tenn. 1995), the supreme court interpreted this rule as "impos[ing] upon a trial court judge the mandatory duty to serve as the thirteenth juror in every criminal case," explaining that "approval by the trial judge of the jury's verdict as the thirteenth juror is a necessary prerequisite to imposition of a valid judgment." Id.When the same judge who presided over the trial overrules a dcfci~sc motion for a new trial without comment, "an appellate court may presume that the trial judge I~as served as the thirteenth juror and approve the july's verdict." Id.Such statements by the trial judge must be "clear and unequivocal." State i7.
Moats, 906 S.W.2d 43 1,435 (Tenn. 1995).
Rule 25(b)(l) of the Rules of Criminal Procedure states: "After a verdict of guilty, anyjudge regularly presiding in or who is assigned to a court may complete the court's duties if the judge before whom the trial began cannot proceed because of absence, death, sickness, or other disability." Rule 25(b)(2) provides that "[tjhe successorjudge may grant a new trial when that judge concludes that he or she cannot perform those duties because of the failure to preside at the trial or for any other reason." This court has held that a s~iccessor judge's consideration, pursuant to Rule 25(b), of whether the duties of the o~igii~al
judge with regard to a motion for new trial can be met in a pai-ticular case "must ii~clude an assessmel~t of his or her ability to act as a thirteenth juror, i~lcluding witness credibility." State v. Nail, 963 S.W.2d 761,765 (Tenn. Crim. App. 1997): see also State v. Biggs, 218 S.W.3d 643,653-54 (Tenn. Crirn. App. 2006); State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000). This assessment in tuin requires the successor judge to deternine "the extent to which witness credibility was a factor in thc case and the extent to which he [or she] I~ad sufficient knowledge or records before him [or her] in order to decide whether the credible evidence, as vizwed by the judge, adequately supported the verdict." Nail, 963 S.W.2d at 766; see also Biags, 2 18S.W.3d at 654; Brown, 53 S.W.3d at 275. Ifthese detenninations cannot be made by the successor judge, then the verdict cannot be approved and a new trial must be granted. see Big;=, 21 8 S.W.3d at 654; Brown, 53 S.W.3d at 275; m,963 S.W.2d at 766.
This court has held that the State niay attempt to appeal, when the trial court grants a new trial to a convicted defendant, by utilizing Taincssee Rule of Appellate Procedure 10. State v. Pew, 740 S.W.2d 723, 724 (Tenn. Crim. App. 1987). However, it is obvious that the situation must comport with the requirements of Rnle 10. As per its specific provisions, that rule is applicable only in two situations:
1.
If the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or

2.
If iiecessaiy for completc determination of the actjoil on appeal as otherwise provided in these rules.


Tent]. R. App. P. 10(a).
As to the first situation, our supreme court in State v. Willourhby, 594 S.W.2d 388 (Tenn. 1980), listed six conditions that would niake a Rule 10 extraordinary appeal appropriate. These conditions, along with our conclusion as to their applicability to the Rule 10 applicatiot~ before us, are set forth as follows:
1 & 2. Where the rulirlg of the court below represents a fundamental
illegality or where theucriolz ofthe trial Judge was without legal authority.
Wc conclude that the trial court's granting of the motions for new trial on the basis of (a) inability to act as thirteenth juror as the successor judge and (b) fundamental structural error cannot bc said to be a fundamental illegality or be without legal authority. In other words, the trial judge has the authority and legal ability to grant a new trial on either ground.

3 & 4. Where the ruling constitutes a failure to proceed according to the
essential requirements of the law or where the action of the trial judge
constituted apluiri andpnlpuble abase of discretion.
Likewise, we cannot conclude that the trial court acted with a "plain and palpable" abuse of ils discretion. The record itself bears out this conclusion. Further, the record in this Rule I0 application does not reflect that the trial court failed to "proceed according to the essential requircnlents of the law." Thc Statc was allowed to be heard on all arguments raised by the Defendants. We do note that, in the motion for new trial hearing, the Statc never argued that former Judge Baumgartner satisfied the requirement to act as thirteenth juror during the sentencing hearings of the Defendants, a principal argument before this Court in its Rule 10 application. While we decline to conclude that this specific argument is waived because of a failure to present it at the appropriate time in the trial court, it is significant in consideration of whether these two conditions, and the final two conditions listed below, apply in this case.

5 & 6. Where the ruling is tantamount to the denial of either party of a
day in court or where either party has lost a right or interest that may

never be I-ecaptured.
As stated previously, the State was allowed to fully present any arguments it wished to provide at the hearing on the motion for new trial. The ruling by the trial cou~t does not bar the State from prosecuting any of the thee Defendants for the cases which are the subject of the Rule 10 application.
,Arguably the only "light or interest" lost by the State is the "right" to have an appellate court affirm all of the convictions rind sentences. Ilowever, as previously stated, even if this Rule 10 application is granted, this Couit would not be reviewing all of the issues regarding the convictions and sentences. The result of an extraordinary appeal could only be either (I) new trials as currently ordered, or (2) filrther appeals by the Defendants on the remaining issues (or possibly arzotlzer application by the State to appeal if the trial court granted any of tlie Defendant$ a new trial on another ground).
As to the second situation when Rule 10(a) is applicable, tlie Advisory Commission Comments to Rule 10 state in part, "The circunlstances in which review is available under [Rule 101, howcver, are very rial-rowly circutnscribed to those situations. . . as may be necessary to permit complete appellate review on a fater appeal." (emphasis added) We interpret the n~le, in light of these comments, to mean that a Rule 10 appeal is applicable under 10(a)(2) when a legal issue arises while criminal proceedings are pending prior to a judgment being entered, when there is the possibility of a later direct appeal. Therefore it would not apply to the situation, as exists here, where the trials were completed, judginents were entered, but new tiials were ordered post vcsdict.
The fact that thc Statc did not prevail in the motion for new trial, standing alone, does not authorize tlie granting of an extraordinary appcal to review tlie trial court's action. If it did, then the Tennessee Rules of Appellate Procedure would grant thc Statc an appeal as of right pursuant to Rule 3(c).
We have thoroughly seviewed the documents appended to the State's application. Defendant Coleman was granted a new trial for tlie same reasons that Defendants Cobbins, Davidson, and Thomas were granted new trials. As previously stated, the State explicitly chose not to seek appellate review as to Defendant Coleman's case. The only difference we can detect in Defendant Coleman's case and those of the other three Defendants is thedegr-ee of the problems that caused the trial court to render its ruling, not tlie existence of the problems.
For reasons which we will explain, wc thercforc conclude that the State's application for extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10 must be denied. While not all of the factual situations leading us to this conclusion are listed below, the most significant ones are as follows.
First, the State and all Defendants entered into a stipulation that statements made by various persons interviewed by Tennessee Bureau of Investigation ("TBI") agents are facts deemed true (i1.1 other words, not merely a stipulation as to what these witnesses would say if called to testify). The State reserved objcctioll to some portions of the statements as to relevancy and hearsay. As per the record available before us, the following facts in support of the trial court's ruling exist as to tlzese proceedirtgs only.
Tn this regard, we note that the poition of the TBI reports which were made public records show that former Judge Baunigai-tner, starting well before tlie trials in these matters, and continuing through them, was a heavy user of alcohol and legally and illegally obtained
narcotics and that his impairment was suspected by, among others, prosecutors, nurses, law enforcemeilt officers, and court personnel.
In addition, it is clear from the record before us that former Judgc Baumgartner expIicitlyrcserved acting as thirteenth juror 01.1 Defendant Davidson's convictions of tlie first degree murders of Christian and Newsom, and as to the resulting death sentences imposed by the jury as to each victim. During Defendant Davidson's sentencing hearing on the non- capital offenses, former Judge Raumgal-tner stated:
You are -Mr. Davidson, you are not so~nebody that sl~ould be on the street with the rest ofus. You should never, evcr, ever be on the street with the rest of us. The jury IIRS detem~ined that you're guilty beyond a reasonable doubt of the first-degree murder of thcse two young people. They've detern~inedthat the appropriate sentence is death. I think-I have a motion for a new trial to go, so I'm going lo resclvc expressing my opinion on that until we have a motion for new trial. But, in my judgment, there is no sentence great enough to punish you for thc conduct that you've been convicted of.
Jn view of the legal authorities and the reasoning which we have set out, wc conclude that this is not a case in which a Rulc 10 appeal is appropliate. By this order, we neither affirnl nor deny the tulings of the successor trial court but, instead, conclude that the Rule 10 application of thc State should bc denied. Accordingly, for all of the reasons set forth above, the application for an extl-aordinary appeal is DENIED. Costs on appeal are taxed to the State of Tennessee.
ALAN E. GLENN, JUDGE
TI-TOMAS T. WOODALL, JUDGE
Dissent by ROBERT W.WEDEMEYER,JUDGE
TN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE

STATE OF TENNESSEE V. LBTALVIS DARNELL COBBINS,
LEMAHICUS DEVALL DAVIDSON, and GEORGE GEOVONNI
THOMAS

Criminal Court for Knox Co~lnty
Nos. 86216A, 86216B & 86216C

Clerk of the Court
ROBERTW. WEDEMEYER,
.I., dissenting.
Ilpon consideration of the arguments, transcripts, and record presently before this Court, I respecthlly disagree with my col1eagues' conclusion that the State's Rule 10 application for extraordinary appeal should bc denied. In my view, the State set forth valid arguments on both the thirteenth juror issue and structural error issue to warrant this Court to exercise its disclaetion and grant extraordinary review pursuant to Rule 10 of the Rules of Appellate Procedure.
A. Thirteenth .Turor
In its Rule 10application, the State presents a compelling argument, supported by trial transcripts, that Judge Raumgartner fulfilled his thirteenth juror obligation through statements at each Defendant's respective post-trial hearings. The State contends that, because Judge Raumgartner fulfilled the thirteenth juror requirement, Judge Blackwood had ncither the legal authority nor the legal obligation to act as the thirteenth juror in any of the three cases. The State concludes that Judge Blackwood's decision to grant a new trial for each of the three Defendants, based on the thirteenth juror rule, was without legal authority and, therefore, presents a valid basis for granting the Rule 10 application for extraordinary appeal. See Stare v. McKim, 2 15 S.W.3d 78 I, 791 (Tenn. 2007) (citing State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980) ('"This Court has stated that a Rule 10 extraordinary appeal will lie whenever the prerequisites for common law certiorari exist: . . . the trial court's action is without legal authority . . . ."). TfJudge Baurngartner did indeed satis6 his thirteenth juror duty, Judge Rlackwood then would have "so far departed from the accepted and usual course ofjudicial proceedings as to require immediate review." Tenn. R. App. P.
10(a)(l). Because the State presents a valid argument, complete with supporting documents, on the issue, I believe it has satisfied the lhreshold showing to warrant filrther proceedings. Therefore, I ~vould grant the State's Rule 10 application for extraordinary review.
B. Structural Error
After thorough research on this issue, I have concluded that the appropriate legal standard for determining whether there is structural error in a trial is unclear. Further, it is unclear whether the legal reasoning and analysis Judge Blackwood applied in his decision to grant a new trial to each of the three Defendants, based on structural error, constituted the appropriate standard. If the appropriate standard requires, as the State argues, that the Defendants demonstrate a connection between Judge l3aurngartnerYs misconduct and his decisions at trial, then .Tuclge Blackwood applied an incorrect standard, and the Deferldants have failed to show that they did not receive fair trials. See Thurmond v. McKee, No. 1 :06-cv-580, 2009 WL 929001, at *18 (W.D. Mich. Apr. 2, 2009) (". . . even assuming the existence of some due-process principle at work in the present case, that principle would certainly require evidence that the judge's personal problems have had some substantial impact on the fairness of a criminal defendanl's trial."). At this point in the appeals process, none of the Defendants have demonstrated any specific instances of bias or unfairness by Judge Baumgartner in their respective trials. Therefore, I would grant the Rule 10 application for extraordinary appeal, ordering that all parties hlly brief and orally argue the issue, in order for this Court to properly determine a resolution. Tenn. R. App. P. 10(a) ("[Aln application for extraordinary appeal lies from an interlocutory order ofa lower courl . . .[i]f necessary for complete determination of the action on appeal . . . .").
Conclusion
Accordingly, for the reasons set forth above, 1 conclude that the State's Rulc 10 application for an extraordinary appeal should be GRANTED.

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