Tennessee Supreme Court Clarifies Scope of Appellate Courts’ Authority to Review Unpresented, Unpreserved Issues

October 7, 2022

Today, the Tennessee Supreme Court reversed a decision of the Court of Criminal Appeals that granted relief to a defendant on an unpreserved and unpresented issue.

Lynn Frank Bristol was convicted on two counts of aggravated sexual battery in Coffee County and sentenced to twenty years in prison. The Court of Criminal Appeals ruled that Bristol was not entitled to relief on any of the issues he raised on appeal. But the court ultimately reversed Bristol’s convictions based on perceived discrepancies between the written jury instructions and the trial court’s oral jury charge. Bristol had not preserved that issue in the trial court or presented it on appeal, and the Court of Criminal Appeals did not give the parties notice it was considering the issue or an opportunity to address it during briefing or oral argument.

The State filed a petition to rehear, explaining that the written jury instructions in the appellate record apparently omitted sixteen consecutive pages. The State attached to its petition a complete copy of the written jury instructions, which contained no material differences from the trial court’s oral jury charge.

The Court of Criminal Appeals directed the trial court to prepare a supplemental record containing a complete copy of the written jury instructions. The trial court clerk certified and submitted a supplemental record, which contained the same written jury instructions that were attached to the State’s rehearing petition. The Court of Criminal Appeals nevertheless denied the petition because the trial court clerk—not the trial court—had certified the supplemental record. And the trial court did not explain the discrepancy between the written jury instructions in the original and supplemental records.

The Supreme Court granted the State’s application for permission to appeal and asked the trial court to clarify which version of the written jury instructions were provided to the jury at trial. The trial court explained that the written jury instructions transmitted with the original appellate record were incorrect due to a copying error and that the instructions contained in the supplemental record accurately reflected the written instructions provided to the jury.

The Supreme Court held that the Court of Criminal Appeals abused its discretion by granting relief on an unpresented and unpreserved issue without giving the parties fair notice and an opportunity to be heard on the matter. The Court explained that, while appellate courts have limited discretionary authority to review unpresented and unpreserved issues, they must give parties fair notice and an opportunity to be heard before deciding such an issue. This requirement promotes fairness, mitigates the risk of error and prejudice, and facilitates the truthfinding process. The Court further held that Bristol was not entitled to relief under the plain-error doctrine because there were no material differences between the written jury instructions in the supplemental record and the trial court’s oral jury charge. The Court therefore reversed the judgment of the Court of Criminal Appeals and reinstated the defendant’s convictions.

To read the Court’s unanimous opinion in State of Tennessee v. Bristol, authored by Justice Sarah K. Campbell, visit the opinions section of TNCourts.gov.