Appeals court hears dispute over denied private counsel, mistrial wording and autopsy testimony

An appellate panel heard argument on an appeal from Shelby County in which defense counsel contended the defendant was denied his constitutional right to counsel of his own choosing after family members retained private attorneys for post-trial proceedings.

The appellant's lawyer argued that although the defendant was found indigent, privately retained counsel had been provided and the trial court erred by refusing substitution before a hearing on a motion for a new trial. "What we've got is after the trial, after the sentencing, this defendant attempted to hire a new counsel or hired new counsel and that counsel attempted to substitute as counsel of record to handle the motion for new trial," counsel said during oral argument.

Why it matters: The lawyer told the court that many of the issues in the appellant's lengthy brief are plain-error matters that defense counsel could have raised in the trial court if substituted counsel had been allowed to prepare and preserve them for a motion for new trial. Allowing substitution, the attorney said, would have avoided requiring the defendant to argue plain error on appeal.

The state's attorney responded that the trial judge properly exercised docket-control authority and that the record showed the defendant was indigent and had long-standing appointed counsel. "He is indigent. The judge appointed him, stated he was indigent for purposes of appeal," the state's attorney said, arguing that an indigent defendant "doesn't get your choice of counsel" and that there was no filing in the record showing private payment for the representation.

Counsel also disputed whether the trial court's belated use of the word "continuance" rather than "mistrial" created a double-jeopardy barrier to retrial. Defense counsel said jeopardy attached when the first jury was sworn and that the judge should have declared a mistrial and granted a continuance with a new jury; the defense attorney characterized the court's wording as an error that the defense ultimately conceded may be harmless. The state countered that the relief requested by trial counsel was provided and that the judge's remarks and subsequent scheduling made clear the court intended to stop the first trial and set a new trial date.

The parties also sparred over admissibility and confrontation concerns tied to autopsy evidence. The defense argued that the state's witness testified about autopsy photographs and a report prepared by another doctor who did not testify, denying the defendant a meaningful opportunity to cross-examine the person who prepared the report. "It's a substantial injustice allowing these pieces of evidence to go in front of the jury from someone who did not take the photos," defense counsel said, urging that the issue fit the plain-error standard.

The state cited Tennessee precedent it said permits an expert to testify about an autopsy prepared by another doctor and argued the medical testimony at trial was not testimonial in the sense triggering the Confrontation Clause bar. The state also noted scheduling and disclosure issues the trial court addressed, including that one expert did not file a report until shortly before trial.

At several points both sides acknowledged procedural oddities in the trial record: the defense said the second trial proceeded with certain expert testimony presented out of the usual order; the state said the judge granted the relief counsel sought even if the written motion was marked internally with differing words. Both sides told the appellate panel that, even if some errors occurred, some of the disputed rulings could be harmless given the later proceedings.

The court did not issue a ruling at argument. The session concluded with the clerk and panel noting recess until the court's November session.

Ending: The appellate panel heard extended argument on substitution of counsel, the scope of double-jeopardy protections when a trial is stopped, and the admissibility and confrontation implications of autopsy-based testimony; the court's decision will determine whether the trial- court rulings merit reversal, remand for further proceedings, or affirmation.