source: Caselaw Access Project

author: Chief Justice ANDERSON

license: Public Domain

text:
    STATE of Tennessee v. Roy E. KEOUGH.
    Supreme Court of Tennessee, at Jackson.
    April 10, 2000.

      Joseph S. Ozment and James V. Ball, Memphis, Tennessee, for the appellant, Roy E. Keough
    Michael E. Moore, Solicitor General, and Tonya Miner, Assistant Attorney General, Nashville, Tennessee (On Appeal), and John W. Pierotti, District Attorney General, and Robert Carter and Rosemary Andrews, Assistant District Attorneys General, Memphis, Tennessee (At Trial), for the appellee, State of Tennessee.
   OPINION

Chief Justice ANDERSON

delivered the opinion of the Court.

The defendant, Roy E. Keough, was convicted of one count of premeditated first degree murder and one count of attempted first degree murder. The jury imposed a death sentence after finding that evidence of an aggravating circumstance, i.e., that the defendant was previously convicted of one or more felonies whose statutory elements involve the use of violence to the person, outweighed evidence of mitigating circumstances beyond a reasonable doubt. The trial judge found the defendant to be a Range II, multiple offender and imposed a sentence of forty years for the attempted first degree murder conviction, to run consecutively to the death sentence.

On direct appeal, the Court of Criminal Appeals affirmed the convictions and the sentences imposed. After the case was docketed in this Court, we reviewed the Court of Criminal Appeals’ decision, the record, and the applicable authority, and entered an order specifying three issues for argument: First, whether the evidence was sufficient to support the conviction for premeditated first degree murder; second, whether the trial court erred in refusing to allow the defendant to cross-examine Detective Nichols with a statement the defendant made to other officers; and last, whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.

We have concluded that the evidence was sufficient to support the verdict for premeditated first degree murder and that the trial court did not abuse its discretion in refusing to allow the defendant to cross-examine Detective Nichols with a statement the defendant made to other officers. We further conclude that the evidence supports the jury’s findings as to aggravating and mitigating circumstances, and the sentence of death is not arbitrary or disproportionate to the sentence imposed in similar cases considering the nature of the crime and the defendant. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

Background Guilt Phase

The defendant, Roy Keough, and his estranged wife, Betty Keough, were separated following a stormy marriage of two years that was beset with problems and arguments. After the separation, the defendant and his girlfriend rented a room at the home of his girlfriend’s brother, Bobby Holly. In December of 1995, the defendant moved out of the residence, and Kevin Berry, a friend of Holly’s, moved in.

On December 24, 1995, the victim, Betty Keough, visited the Holly residence several times looking for the defendant. At around 11:30 a.m., the victim told Holly that she had a gun in her car; she threatened to Mil the defendant and his girlfriend if she found them. She returned around 3:00 p.m.; she appeared to have been drinking, but she did not make any threats during this visit. Sometime after the victim left, the defendant stopped by the Holly residence. Kevin Berry told the defendant that the victim was looking for him. The defendant left.

The victim returned to the Holly residence for the third time around 8:30 p.m. She asked Kevin Berry to join her for a drink at a neighborhood bar. Although the two had not met before that day, Berry accepted the offer. The two drove to Irene’s Grill in the victim’s car. Shortly after they departed, the defendant stopped by the Holly residence to see if the victim had returned. Holly told the defendant that the victim and Berry had gone to Irene’s Grill. The defendant seemed calm and did not appear to have been drinking. Holly testified that the defendant appeared to have parked his car where it could not be seen.

The victim and Berry were seated at a table drinking beer when the defendant arrived at Irene’s Grill. According to witnesses, the defendant and the victim began “talking loud” and appeared to have an argument. Berry testified that the defendant got “louder and louder” and wanted to know what the victim was doing there. The owner of the bar did not hear the victim and the defendant arguing, but she nonetheless asked them to leave the bar. She testified that the defendant did not appear to be drunk, but she refused to serve him a beer. The defendant, the victim, and Berry walked through a hallway toward the back door. According to one witness, the victim appeared to push either the defendant or Berry.

Berry testified that the defendant and the victim continued to argue as the three walked to the victim’s car in the parking lot. The defendant asked Berry to drive his car back to the Holly residence; Berry, who had been drinking a beer, declined. Berry testified that the defendant then “pushed [the victim] with both hands” with “some force behind it.” When Berry stepped forward to intervene, the defendant stabbed him in the chest with a knife. Berry tried to run but was pursued by the defendant and stabbed in the thigh. Berry pushed the defendant away and ran toward the bar; the defendant again caught him and stabbed him in the back. Berry somehow managed to escape into the bar where individuals tended to his wounds and called police.

Officer James Currin arrived at the scene at approximately 10:00 p.m. After checking on Berry’s condition and talking to individuals in the bar, he went outside to the parking lot and found the victim in her car slumped over the steering wheel. She was not moving. There was blood on her face and on the seat of the car. The car doors were locked. Currin broke out the rear window of the car so paramedics could examine the victim and confirm that she was dead.

Martha Stephenson, the defendant’s girlfriend, testified that she had lived with the defendant off and on for about twenty years. The defendant called her at her daughter’s home around 9:30 p.m. and asked for money for gasoline. She borrowed ten dollars from her daughter and went to the Holly residence but was unable to find the defendant. She returned to her daughter’s home, where she found the defendant in the driveway. The defendant told her that “he had just stabbed his wife and her boyfriend” and that he had thrown the knife away. When she told the defendant that she did not have any money, he said he would just wait on the police.

Stephenson’s daughter, Mary Stokes, testified that the defendant showed up at her home and asked to borrow money. She told the defendant she did not have any money. The defendant said that he and the victim had a fight. The defendant asked for a drink and went outside to “wait for the police.” He drank half a fifth of vodka and also some rum. The defendant asked to use the phone to call his attorney. Stokes testified that she heard the defendant say that he had “stabbed his wife” and that “she was probably dead.” An officer later arrived and arrested the defendant. The arresting officer testified that the defendant asked him, “which one did I get ?”

The defendant gave a statement to Detective James Nichols the next day. Nichols testified that he read the defendant his Miranda rights and that attorney Leslie Ballin was present for the interview. According to Nichols, the defendant said he had been looking for his wife when he found her in the bar with another man. They became involved in a verbal dispute and were asked to leave by the management of the bar. Nichols testified that the defendant told him that the argument with the victim escalated once they went outside and that he stabbed the victim with a rifle knife. The defendant also told Nichols that he also stabbed the man who was with his wife at the time. The defendant further said, however, that “[h]e was angry or ... his emotions were so high he couldn’t remember how many times or where he had stabbed his wife or where he had stabbed the man that was with his wife.”

A forensic pathologist testified that the victim, age forty-two, sustained a large stab wound at the top of her breastbone, which penetrated almost six inches into her chest cavity. The wound inflicted upon her probably did not immediately render her unconscious; death probably occurred within two to five minutes. The wound was consistent with that caused by a bayonet used with a moderate amount of force. There were no other wounds on the victim of a defensive nature.

Several witnesses, including three who were present at Irene’s Grill, testified during the defendant’s proof. Joanne Waine testified that she did not see any argument or pushing between the defendant and the victim. Lisse Moore testified that she believed the victim may have pushed the defendant as they walked out of the bar. Virginia Walden testified that she saw the victim slap the defendant while still inside the bar. Bobby Holly testified that the victim had been looking for the defendant on the day in question. She told Holly that she would kill the defendant and his girlfriend if she found them. Holly contacted the defendant and told him about the threat.

After deliberating on the charges, the jury convicted the defendant of premeditated first degree murder and attempted first degree murder.

Sentencing Phase

Joyce Smart, the victim’s sister, testified that the victim’s first husband died after he and the victim had been married for twenty-three years. The victim met the defendant several months later, and they eventually married. The victim was a grandmother and a very friendly woman. Ms. Smart concluded that “our Christmases will never be the same.”

The prosecution introduced court records indicating that the defendant was convicted of assault to commit voluntary manslaughter in Tennessee in 1974 and of manslaughter in Mississippi in 1989.

Several witnesses testified on behalf of the defendant. The defendant, fifty-three years old, was one of eight children. Two of the defendant’s sisters asked the jury to spare his life. Although the defendant was generally cordial and nice, he and the victim had a “stormy” relationship. William Powers testified that he worked with the defendant at a body shop for six or seven years. On one occasion, the victim showed up at work, argued with the defendant, and tried to hit the defendant with an air ratchet.

The jury found that the prosecution had proven one aggravating circumstance that the defendant was previously convicted of one or more felonies whose statutory elements involve the use of violence to the person. Tenn.Code Ann. § 39 — 13—204(i)(2) (1997 & Supp.1999). The jury also found that the evidence of this aggravating circumstance outweighed evidence of any mitigating circumstances beyond a reasonable doubt and therefore imposed a sentence of death. In a separate sentencing proceeding, the trial court imposed a forty year sentence as a Range II offender for the attempted first degree murder, to run consecutively. The Court of Criminal Appeals thereafter affirmed the convictions and the sentences.

Sufficiency of Evidence

The defendant argues that there was insufficient evidence of premeditation to establish the first degree murder of Betty Keough. The State maintains that the evidence was sufficient to support the jury’s verdict.

When evaluating the sufficiency of the evidence, we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We are required to afford the prosecution the strongest legitimate view of the evidence in the record as well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997). Questions regarding the credibility of witnesses, the weight to be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact. Id.; State v. Cazes, 875 S.W.2d 253, 259 (Tenn.1994).

First degree murder includes a “premeditated and intentional killing of another.” Tenn.Code Ann. § 39-13-202(a)(l) (1997 & Supp.1999). By statute, the element of premeditation is defined as follows:

“[P]remeditation” is an act done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.

Tenn.Code Ann. § 39-13-202(d) (1997 & Supp.1999). In Bland, we identified several circumstances which may warrant the trier of fact to find or infer premeditation: the use of a deadly weapon upon an unarmed victim; the particular cruelty of a killing; any threats or declarations of intent to kill made by the defendant; the procurement of a weapon; any preparations to conceal the crime which are undertaken before the crime is committed; and calmness immediately following a killing. Bland, 958 S.W.2d at 660.

In our view, the evidence of premeditation, although far from overwhelming, was legally sufficient to support the jury’s verdict. When viewed in a light most favorable to the prosecution, the evidence revealed: that the defendant was looking for the victim on the night in question; that the defendant was in possession of a rifle knife or bayonet; that the defendant found the victim at a bar drinking with another man; that an argument ensued between the defendant and the victim; that once outside the bar, the defendant stabbed the unarmed victim forcibly in the chest with the bayonet; that the defendant disposed of the murder weapon; and, that the defendant sought money to flee. This evidence, when viewed as a whole under the appropriate standards of appellate review, was legally sufficient to support a finding that the defendant acted with premeditation.

Cross-Examination of Detective Nichols

The defendant contends that the trial court erred in refusing to allow the defendant to cross-examine Detective Nichols with a statement the defendant later made to other officers. The underlying circumstances are as follows:

On the day after the killing, the defendant, having waived his Miranda rights, gave an oral statement to Detective James Nichols. The defendant admitted that he had been looking for the victim when he 'found her in a bar in the company of another man, and that, following an argument, he stabbed both the victim and the man. The record indicates that Nichols took notes of the interview, but the statement was not transcribed or recorded. When Nichols was then called away on another case, the defendant, after receiving his Miranda rights a second time, gave a statement to Detectives Sullivan and Stewart. This statement was placed in writing; it was similar to what the defendant had told Nichols, but contained the defendant’s assertion that the victim carried a gun and had shot at him on an earlier occasion.

At trial, Nichols testified as to the defendant’s oral statement. Nichols’ notes from the interview were not introduced. The defense then sought to cross-examine Nichols by introducing the portion of the defendant’s written statement in which he told Sullivan and Stewart that the victim carried a gun and had once shot at him. The trial court refused to allow the cross-examination on the basis that Nichols did not have personal knowledge of what the defendant may have told the other officers. The State maintains that this ruling was proper.

In support of his position, the defendant relies primarily on the following language found in Espitia v. State, 199 Tenn. 696, 288 S.W.2d 731, 733 (1956), and later cases:

When a confession is admissible, the whole of what the accused said upon the subject at the time of making the confession is admissible and should be taken together; and if the prosecution fails to prove the whole statement, the accused is entitled to put in evidence all that was said to and by him at the time which bears upon the subject of controversy including any exculpatory or self-serving declarations connected therewith.

Id. (quoting 20 Am.Jur. Evidence § 488 (1939)). At least one treatise contains similar language, 23 C.J.S. Criminal Law § 885 (1989 & Supp.1999).

In a later case, Sambolin v. State, 215 Tenn. 569, 387 S.W.2d 817, 819 (1965), citing language similar to that found in Espitia, the Supreme Court held that the trial court erred in allowing an officer to testify as to the defendant’s statement when the State had failed to furnish a copy of the summary found in the police report to the defendant. Likewise, in State v. Robinson, 622 S.W.2d 62, 69-70 (Tenn.Crim.App.1980), the Court of Criminal Appeals indicated that the defendant should have been permitted to introduce his statement, including an exculpatory portion, following the State’s introduction of a version that had been redacted to comply with the Bruton rule.

These Tennessee decisions relied on by the defendant are, however, factually distinguishable from the present case and, in any event, predate the enactment of the Tennessee Rules of Evidence. We therefore turn to the analogous provision found in Tenn. R. Evid. 106, which states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Id. As one commentator has said, this so-called “rule of completeness” allows the trier of fact to “assess related information at the same time rather than piecemeal.” Neil P. Cohen et al., Tennessee Law of Evidence § 106.1, at 33 (3d ed.1995).

In our view, Rule 106 reflects the concern for fairness found in cases such as Espitia — that the trier of fact be permitted to assess related information without being misled by hearing only certain portions of evidence. Cohen, § 106.1, at 33. Accordingly, it appears that where the prosecution introduces a statement made by the defendant, the trial court may in the interest of fairness order that the remainder of the statement be admitted as well under Rule 106. Indeed, it would not be consistent with fundamental fairness to allow the prosecution to introduce only the most incriminating portions of a defendant’s statement without regard to the overall context or relevant exculpatory portions found in the same statement. As Espitia indicates, the jury is to determine which statements to accredit.

In any event, we conclude that Rule 106 is not applicable and that the defendant is not entitled to relief in this case. In short, we cannot conclude that the trial court abused its discretion in finding that the defendant, in essence, gave two statements: an oral statement to Detective Nichols followed by a written statement to Detectives Sullivan and Stewart. The statements were given to different officers, and the defendant was read his Miranda rights before giving each statement.

Moreover, it appears that Detective Nichols did not have personal knowledge of what the defendant later told Sullivan and Stewart. The State did not call Sullivan or Stewart as witnesses, nor did it attempt to introduce the written statement. Likewise, the defendant did not call these witnesses. Finally, we observe that the defendant is not entitled to relief on this issue because there was other evidence in the record that the victim had threatened to kill the defendant on the day in question. Under these circumstances, our narrow holding is that the trial court did not abuse its discretion in refusing to allow the defendant to cross-examine Nichols with a statement made by the defendant to two other officers.

Proportionality

Where a defendant has been sentenced to death, we must undertake a comparative proportionality review pursuant to Tenn.Code Ann. § 39-13-206(c)(l) (1997). The analysis is designed to identify aberrant, arbitrary or capricious sentencing by determining whether the death penalty in a given case is “disproportionate to the punishment imposed on others convicted of the same crime.” Bland, 958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984)). If a case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed,” then the sentence is disproportionate. Id. at 668; see also State v. Burns, 979 S.W.2d 276, 283 (Tenn.1998).

This Court has consistently employed the precedent-seeking method of comparative proportionality review, which compares a case with cases involving similar defendants and similar crimes. Bland, 958 S.W.2d at 667. We consider numerous factors regarding the offense: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim’s age, physical and psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effect on nondecedent victims. We also consider multiple factors about the defendant: (1) prior criminal record; (2) age, race and gender; (3) mental, emotional and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation. Id. at 667. Since no two defendants and no two crimes are precisely alike, our review is not mechanical or based on a rigid formula. Id. at 668.

In this case, evidence in the record shows that the defendant and the victim were separated following a troubled marital relationship. The day of the offense, the defendant learned the victim was looking for him and had threatened to kill him, so he in turn decided to try to find her. He was told that she was at Irene’s Grill with another man. He went to the Grill and found her having a drink with another man. An argument ensued which eventually escalated into the parking lot. The defendant stabbed the victim with a bayonet with sufficient force to produce a wound nearly six inches deep into the chest cavity. Although there was evidence of an argument, there is no proof whatsoever that the victim was armed or that the defendant was in anyway provoked into the killing or in anyway justified. Moreover, the defendant also pursued and repeatedly stabbed the other man who was at the scene — indeed, Kevin Berry was not killed only because he was able to escape from the defendant, despite three separate stab wounds, and summon help.

The defendant, a white male, was fifty-three years of age at the time of sentencing. He had twice been convicted for felonies involving violence — in 1974 he was convicted of assault with intent to commit voluntary manslaughter, and in 1989 he pled guilty to the offense of manslaughter. These convictions certainly established the single aggravating circumstance in this case. There was no evidence regarding the defendant’s mental, physical or psychological condition. The record does reveal that the defendant’s marriage to the victim had been a troubled one. The defendant ultimately waited for police to arrive to make the arrest, but not before disposing of the murder weapon and trying to obtain money for gasoline to flee. Although the defendant told several individuals that he had stabbed the victim and another individual, there is no proof that he exhibited any remorse for his actions. Finally, there was little evidence regarding the defendant’s potential for rehabilitation.

We have reviewed and upheld the death sentence in numerous cases bearing similarity to the present case. For example, in the following cases, the sentence of death was imposed and upheld where the defendant had killed an estranged wife or girlfriend in a domestic violence context. State v. Hall, 958 S.W.2d 679 (Tenn.1997); State v. Johnson, 743 S.W.2d 154 (Tenn.1987); State v. Cooper, 718 S.W.2d 256 (Tenn.1986). Similarly, we have often upheld the sentence where the sole aggravating circumstance was the defendant’s prior convictions for felonies involving violence or whose statutory elements involve violence. State v. Smith, 993 S.W.2d 6 (Tenn.1999); State v. Cribbs, 967 S.W.2d 773 (Tenn.1998); State v. Adkins, 725 S.W.2d 660 (Tenn.1987); State v. Goad, 707 S.W.2d 846 (Tenn.1986). We have also upheld the death sentence in cases where the means and manner of death involved a stabbing. See, e.g., State v. Mann, 959 S.W.2d 503 (Tenn.1997); State v. Thompson, 768 S.W.2d 239 (Tenn.1989). Finally,, we have upheld death sentences imposed on defendants who were of similar age to the defendant. State v. Wilcoxson, 772 S.W.2d 33 (Tenn.1989); State v. Barnes, 703 S.W.2d 611 (Tenn.1985).

The defendant argues that the evidence of premeditation was insufficient and that the defendant committed the killing in a state of passion provoked by the victim. Our review indicates that some defendants have received lesser sentences for similar crimes against estranged wives or girlfriends. See, e.g., State v. Dick, 872 S.W.2d 938 (Tenn.Crim.App.1993). We also observe that this case involves a single stab wound in contrast to those death penalty cases involving multiple stab wounds. See State v. Pike, 978 S.W.2d 904 (Tenn.1998); State v. Bush, 942 S.W.2d 489 (Tenn.1997).

Our function, however, is not to invalidate a death sentence merely because the circumstances may be similar to those in which a defendant received a less severe sentence. Burns, 979 S.W.2d at 285. Instead, our review requires a determination of whether a case plainly lacks circumstances found in similar cases where the death penalty has been imposed. Id. Here, the similarity of the circumstances to cases in which the death penalty has been upheld and, in particular, the strength of the aggravating circumstance — the defendant’s two prior convictions for violent felonies — reveals that the penalty is not arbitrary or disproportionate as applied in this case.

Conclusion

In accordance with Tenn.Code Ann. § 39-13-206(c) and the principles adopted in prior decisions, we have considered the entire record and conclude that the sentence of death has not been imposed arbitrarily, that the evidence supports the jury’s finding of the statutory aggravating circumstance, that the evidence supports the jury’s finding that the aggravating circumstance outweighs evidence of mitigating circumstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate.

We have reviewed all of the issues raised by the defendant and conclude that they do not warrant relief. With respect to issues not addressed in this opinion, we affirm the decision of the Court of Criminal Appeals authored by Judge David Welles and joined in by Judge Joe Riley. The relevant portions of that opinion are attached as an appendix to this opinion. The defendant’s sentence of death is affirmed and shall be carried out on the 10th day of July, 2000, unless otherwise ordered by this Court or proper authority.

It appearing that the defendant Roy Keough is indigent, costs of appeal are taxed to the State.

APPENDIX “A”

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1998

STATE OF TENNESSEE, Appellee, vs. ROY E. KEOUGH, Appellant.

C.C.A. NO. 02C01-9708-CR-00317

SHELBY COUNTY HON. L.T. LAF-FERTY JUDGE (First Degree Murder; Attempted Murder; Death Penalty)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: James V. Ball, Joseph S. Ozment, 217 Exchange Avenue Memphis, TN 38105

FOR THE APPELLEE: John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, 425 Fifth Avenue North Nashville, TN 37243-0493, John W. Pierotti, District Attorney General, Robert Carter, Rosemary Andrews, Assistant District Attorneys, 201 Poplar Avenue Memphis, TN 38013

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

III. CONSTITUTIONALITY OF THE DEATH PENALTY

Relying upon arguments from his pretrial motions, Defendant also challenges the constitutionality of Tennessee’s death penalty statute. This issue is without merit. See State v. Smith, 893 S.W.2d 908 (Tenn.1994); State v. Brimmer, 876 S.W.2d 75 (Tenn.1994); State v. Cazes, 875 S.W.2d 253 (Tenn.1994); State v. Smith, 857 S.W.2d 1 (Tenn.1993); State v. Black, 815 S.W.2d 166 (Tenn.1991); State v. Boyd, 797 S.W.2d 589 (Tenn.1990); State v. Teel, 793 S.W.2d 236 (Tenn.1990); State v. Thompson, 768 S.W.2d 239 (Tenn.1989).

PAUL G. SUMMERS, J., not participating.

JOE G. RILEY, J., concurs.

      . Tenn.Code Ann. § 39-13-204(0(2) (1997 & Supp.1999).

      . Oral argument was heard in this case on November 17, 1999, in Memphis, Shelby County, Tennessee, as part of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

      . "The affirmance of the conviction and the sentence of death shall be automatically reviewed by the Tennessee supreme court.” Tenn.Code Ann. § 39-13-206(a)(l) (1997). "Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument... Tenn. R. Sup.Ct. 12.2.

      . Defense counsel objected and moved for a mistrial on the basis that the prosecution did not disclose this statement as required under Tenn. R.Crim. P. 16(a)(1)(A). The prosecution’s only explanation was that it did not know what discovery had been obtained by the defense and that it had learned of the statement only prior to calling the arresting officer to testify. The trial court overruled the motion for a mistrial. The defendant did not raise the issue on appeal.

      . In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court held that admission of a codefendant’s confession implicating the defendant in a joint trial violates the defendant's constitutional right of confrontation.

      . The statement was apparently introduced fer identification purposes only.

      . The defendant also makes a general challenge to the Bland analysis, notwithstanding the fact that we have consistently employed this analysis in our review. See, e.g., Burns, 979 S.W.2d at 283-84.


author: DROWOTA, J.,

text:
    STATE of Tennessee, et al. v. BROWN & WILLIAMSON TOBACCO CORPORATION, et al. v. Gregory Bennett Perry and Steve Lloyd Champion, et al.
    Supreme Court of Tennessee, at Nashville.
    April 19, 2000.

      J.D. Lee, David C. Lee, Knoxville, for intervenors-appellants, Steven Lloyd Champion, et al.
    Gordon Ball, Knoxville, for intervenors-appellants, Gregory Bennett Perry, et al.
    John A. Lucas, Knoxville, Robert G. McDowell, James A. Delanis, Nashville, for appellees, Brown & Williamson Tobacco Corporation, et al.
    John A. McReynolds, Jr., Knoxville, for appellee Liggett Group Inc,

      Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Russell T. Perkins, Special Deputy for Litigation, Carolyn Underwood Smith, Assistant Attorney General, Nashville, for appellee, State of Tennessee.
   OPINION

DROWOTA, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., BIRCH, HOLDER, and BARKER, JJ., joined.

In this case the State of Tennessee filed suit against several tobacco product manufacturers seeking monetary, declaratory, injunctive, and other relief in connection with the marketing and sale of tobacco products in Tennessee. Upon approval by the trial court of a settlement between the State and the tobacco defendants, the State’s complaint was dismissed. A group of individuals seeking damages from tobacco companies for increased medical insurance premiums (collectively referred to as the “Perry intervenors”) filed a declaratory judgment action and a motion to intervene in the State’s suit. The declaratory judgment action was dismissed and the motion to intervene was denied. A separate group of individuals consisting of tobacco users seeking damages from tobacco companies and their lawyers seeking attorney’s fees (collectively referred to as the “Beckom intervenors”) also filed a motion to intervene in the State’s suit. Their motion to intervene was likewise denied. Both groups of proposed interve-nors appealed to the Court of Appeals, which consolidated the cases. The State subsequently moved this Court to assume jurisdiction of this matter pursuant to Tenn.Code Ann. § 16-3-201(d) on the grounds that the case is of compelling public importance in that it involves a substantial amount of State revenue. We agreed and assumed jurisdiction over the case.

After carefully examining the record before us and considering the relevant authorities, we conclude that the trial court correctly dismissed the declaratory judgment action filed by the Perry intervenors, as well as their motion to intervene in the settlement action. Moreover, we conclude that the trial court correctly denied the motion to intervene filed by the Beckom intervenors. Accordingly, for the reasons explained hereafter, the trial courts are affirmed.

BACKGROUND

On December 21, 1998, the State of Tennessee filed suit in the Chancery Court of Davidson County against Brown & Williams Tobacco Corporation, along with several other tobacco manufacturers and trade associations. The State’s complaint included claims for relief under the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101, et seq., the Tennessee Trade Practices Act, Tenn.Code Ann. § 47-25-101, et seq., and a claim for unjust enrichment. The State’s claims were based on the alleged misconduct of the tobacco defendants in manufacturing, distributing, and marketing of tobacco products in Tennessee. Among other things, the State alleged that the tobacco defendants made unfair, deceptive, and misleading claims about the addictive nature of nicotine, targeted young people in their advertising, misrepresented the health consequences of using tobacco products, and imposed a significant financial burden on taxpayers who have supported the medical costs of individuals dependent on financial assistance from the State because of their addiction to cigarettes and smokeless tobacco products. The State sought declaratory and injunctive relief, as well as money damages resulting from the State’s payment of medical expenses for tobacco related diseases caused by the marketing, sale, and use of the defendants’ products. The State’s complaint stated that the suit was brought by the State in its capacity as sovereign, not as a class action on behalf of Tennessee residents. Thus, the State was not seeking relief on behalf of any individual or party other than itself.

On the same day that the State filed suit, the State and the tobacco defendants submitted a Master Settlement Agreement (“MSA”) to Chancellor Irvin Kilcrease for approval. Pursuant to the MSA, the State is projected to receive approximately 4.8 billion dollars through the year 2025, and annual payments in perpetuity thereafter in amounts expected to exceed 100 million dollars per year. In addition to the cash settlement, the MSA grants various forms of injunctive relief, such as enjoining the tobacco defendants from targeting youth or using cartoons in their advertising. The agreement also bans outdoor advertisements and limits tobacco advertising in sporting events, concerts, and similar activities. In exchange for the money and injunctive relief, the MSA provides for the release of claims against the tobacco defendants. The State cannot begin receiving any money under the MSA until the State achieves “state specific finality,” which means that all litigation pertaining to the MSA in the State must be resolved. Tennessee is one of a small number of states that has yet to achieve this status. Chancellor Kilcrease approved the settlement and dismissed the State’s complaint against the tobacco defendants on the same day it was filed, December 21,1998.

On December 18, 1998, the Perry inter-venors filed a declaratory judgment action in the Chancery Court of Davidson County before Chancellor Carol McCoy, seeking to have their rights under the MSA determined. Specifically, the Perry intervenors sought a declaration that the MSA did not impair their ability to maintain a pending action against the tobacco defendants. Chancellor McCoy dismissed the declaratory judgment action on the basis of sovereign immunity, res judicata, and her determination that the Perry intervenors were seeking an advisory opinion regarding the impact of the MSA on their Coffee County litigation.

In addition to fifing a declaratory judgment action before Chancellor McCoy, the Perry intervenors filed with Chancellor Kilcrease a motion to intervene in the State’s lawsuit. The Perry intervenors sought to challenge the fairness of the settlement and have the order approving it set aside. They also sought declaratory relief regarding the impact of the MSA on their Coffee County suit. Chancellor Kil-crease denied the motion to intervene because the Perry intervenors did not have a protectable legal interest in the State’s suit. Therefore, the intervenors were seeking an advisory opinion that would require the court to “indulge in speculation.”

The other group of proposed interve-nors, the Beckom group, likewise filed a motion with Chancellor Kilcrease to intervene in the State’s lawsuit against the tobacco companies. Like the Perry inter-venors, the Beckom intervenors sought to challenge the fairness of the MSA. However, unlike the Perry intervenors, the Beck-om intervenors sought to have liens imposed on the settlement for attorney’s fees incurred in other litigation against tobacco companies. Chancellor Kilcrease denied the motion to intervene based on lack of standing, sovereign immunity, and because the underlying suit filed by the Beckom group on behalf of taxpayers was moot since the State had filed and settled its own suit against the tobacco manufacturers. The trial court also found that a lien for attorney’s fees was not proper because the lawyers seeking the fees were not counsel in the State’s suit.

After their efforts to intervene failed in the trial courts, the Perry and Beckom intervenors appealed to the Court of Appeals, which consolidated the cases. Thereafter, this Court assumed jurisdiction of the case pursuant to Tenn.Code Ann. § 16-3-201(d) because the case is of compelling public importance which involves a substantial amount of State revenue.

ANALYSIS

I.

We first address the trial court’s denial of intervenor status to the Perry and Beckom groups. We begin by observing that “a lawsuit often is not merely a private fight and will have implications on those not named as parties.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.1997). Believing that the State’s settlement with the tobacco industry implicated their interests, the Perry and Beckom groups contend that they are entitled to intervene in the State’s lawsuit under Tenn. R. Civ. P. 24, which provides for two types of intervention — intervention as of right and permissive intervention. The applicable rules provide as follows:

24.01. Intervention as of Right. — Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties; or (3) by stipulation of all the parties. (Emphasis added).
24.02. Permissive Intervention. — Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising discretion the court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (Emphasis added).

A party seeking to intervene as of right under Rule 24.01 must establish that (1) the application for intervention was timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the pending litigation; (3) the proposed intervenor’s ability to protect that interest is impaired; and (4) the parties to the underlying suit cannot adequately represent the intervenor’s interests. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989). The intervenor has the burden of establishing all four of these elements or else the motion to intervene will be denied. Id. In the case of permissive intervention, the party seeking to intervene must show that there is a common question of law or fact between the inter-venor’s claim and the main action. Tenn. R. Civ. P. 24.02. Permissive intervention is generally not proper when the interve-nor seeks to raise new claims or issues against the existing parties. See Arizona v. California, 460 U.S. 605, 614, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983).

The standard of review on appeal for the denial of intervention as of right is de novo, except for the timeliness of the application which is reviewed under an abuse of discretion standard. Michigan State AFL-CIO, 103 F.3d at 1245. The standard of review for the denial of permissive intervention is abuse of discretion. Chaille v. Warren, 635 S.W.2d 700, 703 (Tenn.App.1982). An abuse of discretion exists when the reviewing court is firmly convinced that the lower court has made a mistake in that it affirmatively appears that the lower court’s decision has no basis in law or in fact and is therefore arbitrary, illogical, or unconscionable. See Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.1996); State v. Carter, 890 S.W.2d 449, 454 (Tenn.Crim.App.1994).

In this case, both groups of would-be intervenors contend that the trial court erred in denying them the right to intervene under Rule 24.01. In support of their position, the proposed intervenors focus on the possibility that the release provisions of the MSA might be used as a defense in their respective suits against tobacco companies. They argue that they have a substantial legal interest in the State’s suit which will be impaired or impeded because the MSA might be raised as a defense in their pending suits if the tobacco defendants interpret the MSA’s release provision to encompass the intervenors’ claims. The State takes the position that the MSA does not encompass the intervenors’ private litigation and, therefore, the MSA has no impact on their ability to pursue their claims against the tobacco companies. Not surprisingly, the tobacco defendants have chosen to take a noncommital position on the issue, which “deeply concerns” the proposed intervenors that the MSA might be used to “stifle or destroy” their pending claims by leaving those claims vulnerable to dismissal. The intervenors are particularly concerned about the language in the MSA purporting to prohibit actions brought by private persons “seeking relief on behalf of or generally applicable to the general public.” The MSA, however, does not prohibit suits seeking “private or individual relief for separate and distinct injuries.”

The contention of the intervenors that they have a substantial legal interest in the State’s suit entitling them to intervene as of right is unconvincing. While the precise nature of the interest required to intervene as of right has eluded exact definition, it is clear that the right does not include a mere contingent, remote, or conjectural possibility of being affected as a result of the suit, but must involve a direct claim on the subject matter of the suit such that the intervenor will either gain or lose by direct operation of the judgment. See 3B Moore’s Federal Practice, p. 24-54 (2d ed.1995); 67A C.J.S. Parties § 75 (1978). Hence, intervention as of right -is not appropriate to adjudicate legal interests of an indefinite character, or hypothetical or speculative scenarios that may never come to pass. See Harris v. Pernsley, 820 F.2d 592, 601 (3rd Cir.1987). In this case, the question of whether the in-tervenors’ claims asserted in their private lawsuits are released by the MSA is an issue that will not arise unless and until the tobacco defendants in those cases raise the MSA as a defense, which they have yet to do. As stated by one court, “[t]he mere possibility that the MSA may some day be offered as a defense is not grounds for intervention. The language of the MSA, in anticipation of separate litigation, contemplates that it may be offered as a complete defense, not that it will be a complete defense. At this juncture it cannot be determined if such anticipated defenses may be employed or will be valid.” Missouri v. American Tobacco Co., No.76054, 2000 WL 29421 (Mo.Ct.App. Jan. 18, 2000). Attempting at this point to decide whether the proposed intervenors will be bound by the MSA, and if so in what respect, would require addressing these questions in the abstract and theoretical. Doing so would run afoul of the established riile that courts are not to render advisory opinions, see Super Flea Mkt. v. Olsen, 677 S.W.2d 449, 451 (Tenn.1984), or decide abstract legal questions, see Lewis v. State, 208 Tenn. 534, 347 S.W.2d 47, 49 (1961). The proposed inter-venors would have us render an advisory opinion, which we decline to do. We conclude that the intervenors do not have a substantial legal interest in the State’s suit entitling them to intervene as of right under Tenn. R. Civ. P. 24.01.

Even assuming for the sake of argument that the intervenors did have a substantial legal interest in the State’s suit, intervention as of right under Rule 24.01 would still not be appropriate. As stated above, one of the requirements to intervene as of right is that the would-be intervenor be “so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.” Tenn. R. Civ. P. 24.01(2). While it may be that at some point the MSA’s release provisions will be found to apply to the intervenors’ claims if raised as a defense in their cases, the validity of those release provisions and their applicability to the intervenors’ claims can be litigated in their other lawsuits. Those lawsuits provide the intervenors with a forum in which to determine whether the MSA creates a defense to their claims. Thus, it cannot be said that the State’s settlement of its suit against the tobacco companies will preclude the intervenors from protecting their interests in their private litigation. Accordingly, we find that the proposed intervenors are not entitled to intervention as of right because they do not have a substantial legal interest in the State’s suit, and even if they had such an interest, the MSA does not impair or impede their ability to protect that interest.

On the question of permissive intervention under Tenn. R. Civ. P. 24.02, we find no abuse of discretion in the trial court’s denial of intervention. As noted above, if an intervenor’s claim or defense contains a question of law or fact that is also raised by the main action, the requirement of Rule 24.02 is satisfied and the trial court is afforded discretion to permit intervention. Ballard, 924 S.W.2d at 657. In exercising that discretion, the court must consider whether the intervention will unduly delay or otherwise prejudice the rights of the original parties. Tenn. R. Civ. P. 24.02. Here, it cannot be said that the trial court’s denial of permissive intervention had no basis in law or fact or was otherwise arbitrary, illogical, or unconscionable, given that the proposed intervenors have a forum to determine the impact of the MSA on then- cases. Furthermore, asking the trial court in the State’s suit to determine the impact of the MSA on the intervenors’ cases would be speculative since the MSA has not been raised as a defense to the intervenors’ claims. Finally, the extent to which the MSA’s release provisions bind private litigants is not an issue in the State’s case. Nor is it presently an issue in the intervenors’ cases. Thus, the trial court acted properly in rejecting the intervenors’ motions for permissive intervention under Rule 24.02.

II.

In addition to filing a motion to intervene, the Perry intervenors filed a declaratory judgment action in which they sought to have their rights under the MSA determined. Specifically, the Perry intervenors sought a declaration that the MSA did not impair their ability to pursue their action against the tobacco defendants. Chancellor McCoy dismissed the declaratory judgment action on the basis of sovereign immunity, res judicata, and her determination that the intervenors were seeking an advisory opinion regarding the impact of the MSA on their private lawsuit.

A decision on whether to entertain a declaratory judgment falls squarely within a trial court’s discretion, which has been described by this Court as “very wide.” Southern Fire & Cas. Co. v. Cooper, 200 Tenn. 283, 292 S.W.2d 177, 178 (1956); Hinchman v. City Water Co., 179 Tenn. 545, 167 S.W.2d 986, 992 (1943); Newsum v. Interstate Realty Co., 152 Tenn. 302, 278 S.W. 56, 57 (1925). Thus, the issue here is whether the trial court acted arbitrarily in refusing to declare the rights of the Perry intervenors under the MSA. See Southern Fire & Cas. Co., 292 S.W.2d at 178 ( “the action of the trial court in refusing a declaration should not be disturbed by this, an appellate court, unless such refusal be arbitrary”).

The primary purpose of the Declaratory Judgment Act is “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.... ” TenmCode Ann. § 29-14-113. Athough the Act is “to be liberally construed and administered,” id., we have acknowledged that “certain limitations must be placed upon the operation of the statute.” Johnson City v. Caplan, 194 Tenn. 496, 253 S.W.2d 725, 726 (1952). For example, a declaratory judgment action cannot be used by a court to decide a theoretical question, Miller v. Miller, 149 Tenn. 463, 261 S.W. 965, 972 (1924), render an advisory opinion which may help a party in another transaction, Hodges v. Hamblen County, 152 Tenn. 395, 277 S.W. 901, 902 (1925), or “allay fears as to what may occur in the future,” Super Flea Mkt., 677 S.W.2d at 451. Thus, in order to maintain an action for a declaratory judgment a justiciable controversy must exist. Jared v. Fitzgerald, 183 Tenn. 682, 195 S.W.2d 1, 4 (1946). For a controversy to be justiciable, a real question rather than a theoretical one must be presented and a legally protectable interest must be at stake. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 915 (1949). If the controversy depends upon a future or contingent event, or involves a theoretical or hypothetical state of facts, the controversy is not justiciable. Story v. Walker, 218 Tenn. 605, 404 S.W.2d 803, 804 (1966). If the rule were otherwise, the “courts might well be projected into the limitless field of advisory opinions.” Id.

In this case, the Perry intervenors seek a declaration as to whether the MSA’s release provisions affect their private suit pending in Coffee County. As previously pointed out, the MSA has not yet been raised as an issue in that case. The issue will arise and be justiciable, if at all, when the tobacco companies assert the affirmative defense of release in the Coffee County case. Therefore, the trial court did not act arbitrarily, in declining to render a declaratory opinion to assist the interve-nors in their other litigation or otherwise allay their fears as to what might occur in the future. The dismissal of the declaratory judgment action was entirely proper.

III.

The final issue in this case involves the claim of the Beckom intervenors to attorney’s fees. The Beckom intervenors are composed in part of lawyers who claim to have spent millions of dollars fighting the tobacco industry in other cases in Tennessee and elsewhere. These lawyers seek to have liens imposed on the MSA for attorney’s fees incurred as a result of their work against the tobacco companies, claiming that the State benefitted from their past efforts. They argue that since the tobacco companies agreed to pay the State’s attorney’s fees in its suit against them under the MSA, this entitles the intervenors to receive from the tobacco companies the attorney’s fees generated by their prior litigation. They further contend that they are owed attorney’s fees based on a theory of implied contract and other equitable theories. The trial court found that a lien for attorney’s fees was not proper because the lawyers seeking the fees were not counsel in the State’s suit. We agree.

Pursuant to the terms of the MSA, the tobacco companies agreed to pay attorney’s fees to “private outside counsel, if any, retained by” the State, and who were identified in the MSA “as having been retained by and having represented” the State. Thus, only attorneys hired by the State and identified by the State in the MSA can make a claim for attorney’s fees under the MSA. The attorneys seeking to intervene here were not hired by the State to represent it, did not in fact represent the State in its suit, and are not designated in the MSA as having done so. Thus, they clearly have no claim to attorney’s fees under the MSA. Similarly unpersuasive is the intervenors’ claim to attorney’s fees on equitable grounds, such as quantum meruit, implied contract, and other theories. If the attorney intervenors in this case were allowed to claim fees under the theories being asserted, then any lawyer who has been involved in litigation against a tobacco company could do the same by merely claiming that their efforts have benefitted the State. Obviously, such a situation cannot be sanctioned. Accordingly, we find that the intervenors’ claim to attorney’s fees is controlled by the American Rule, which is firmly established in this state. See John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn.1998). Under that rule, litigants pay their own attorneys fees absent a statute or an agreement providing otherwise. Id. It follows that the trial court properly refused to permit those individuals seeking attorney’s fees to intervene in this case.

CONCLUSION

In view of the foregoing discussion, we conclude that the trial court properly denied the motions to intervene and that the Perry intervenors’ declaratory judgment action was properly dismissed. We have carefully considered the other claims of error made by the would-be intervenors and find them to be without any merit. Accordingly, the judgments of the trial courts are affirmed. Finally, we deny the intervenors’ motions to consider post-judgment facts. Costs of this appeal shall be taxed evenly between the Perry and Beck-om intervenors.

      . This Court is authorized to assume jurisdiction over an undecided case pending in the intermediate appellate courts when a "compelling public interest” is at stake, or when the case is "of unusual public importance” and involves state taxes, the right to hold or retain public office, or constitutional issues. Tenn.Code Ann. § 16-3-201(d).

      . The tobacco defendants named in the State’s complaint included Brown & Williamson Tobacco Corporation; Liggett Group, Inc.; Lorillard Tobacco Company; Philip Morris Incorporated; R.J. Reynolds Tobacco Company; United States Tobacco Company; United States Tobacco Manufacturing Company, Inc.; and United States Tobacco Sales and Marketing Company, Inc.

      . The MSA, which is 147 pages long excluding numerous exhibits, was reached between the tobacco industry and 46 states, along with the District of Columbia, Puerto Rico, the United States Virgin Islands, American Samoa, the Northern Mariana Islands, and Guam. The four remaining states previously reached agreements with the tobacco industry. No state has rejected the MSA. See State v. Philip Morris, Inc., 179 Misc.2d 435, 686 N.Y.S.2d 564, 566 n. 3 (N.Y.Sup.Ct.1998), aff'd, 263 A.D.2d 400, 693 N.Y.S.2d 36 (1999).

      . The Perry intervenors had pending a proposed class action suit against the tobacco defendants in the Circuit Court of Coffee County. In their suit, the Perry intervenors sought to recover for the increase in medical insurance premiums they and thousands of others have purportedly paid from 1953 to the present as a result of the tobacco industry’s marketing and sale of tobacco products in Tennessee.

      . The Beckom intervenors had filed suit in Monroe County against various tobacco companies to recover money spent by the State for smoking-related injuries. The case was removed to federal district court, which dismissed it for lack of standing. The United States Court of Appeals for the Sixth Circuit affirmed the district court decision.

      . The MSA provides for the release of claims against the tobacco companies by the “Releasing Parties.” “Releasing Parties” is defined in the MSA as follows: "Releasing Parties means each Settling State and any of its past, present and future agents, officials acting in their official capacities, legal representatives, agencies, departments, commissions and divisions; and also means, to the full extent of the power of the signatories hereto to release past, present and future claims, the following: (1) any Settling State’s subdivisions ...; and (2) persons or entities acting in a parens patriae, sovereign, quasi-sovereign, private attorney general, qui tarn, taxpayer, or any other capacity, whether or not any of them participate in this settlement, (A) to the extent that any such person or entity is seeking relief on behalf of or generally applicable to the general public in such Settling State or the people of the State, as opposed solely to private or individual relief for separate and distinct injuries, or (B) to the extent that any such entity (as opposed to an individual) is seeking recovery of health care expenses (other than premium or capitation payments for the benefit of present or retired state employees) paid or reimbursed, directly or indirectly, by a Settling State.”

      . Both groups of proposed intervenors, particularly the Beckom group, attempt to make much of the fact that Chancellor Kilcrease stated at a hearing that he had not read the MSA before approving it and was therefore unfamiliar with its provisions. The proposed intervenors fail to note, however, that the Chancellor stated at a later hearing that he wanted "to correct the record right now about that,” stating that he had in fact read the MSA and that his earlier comment about not reading it was made in jest and taken out of context. We assume that counsels’ omission in this regard is the result of oversight rather than any attempt to mislead the Court.

      . The Perry intervenors filed a motion pursuant to Tenn. R.App. P. 14 asking this Court to consider a laches argument made by the State in a case pending in federal court where an individual was seeking to intervene in that case. The motion does not request that we consider a post-judgment fact, but merely a legal position taken by the State in another case, which we decline to do. Laches is not even an issue in the present case. The Beck-om intervenors likewise filed a motion to consider the purported post-judgment fact that the MSA had been amended after its approval to designate an out of state lawyer as one who provided legal services to the State and could therefore recover attorney’s fees. The motion is moot given our resolution of the case. In any event, the motion does not meet the criteria of Tenn. R.App. P. 14 for the consideration of post-judgment facts. The Beckom interve-nors have filed other motions to consider post-judgment facts which we have considered and hereby deny.


text:
    Donald E. GRIFFIN, v. SHELTER MUTUAL INSURANCE COMPANY.
    Supreme Court of Tennessee, at Nashville.
    May 1, 2000.

      Charles Patrick Flynn, Michael K. Rad-ford, Brentwood, Tennessee, for appellant, Donald E. Griffin.
    Thomas W. Hardin, Kim B. Kettering, Columbia, Tennessee, for appellee, Shelter Mutual Insurance Company.
   OPINION

DROWOTA, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., BIRCH, HOLDER, and BARKER, JJ., joined.

The appellant, Donald E. Griffin, brought suit seeking damages for injuries he sustained when his vehicle was struck from the rear in Maury County by a car driven by Richard Vaughn. After obtaining a judgment against Vaughn in the amount of $225,000, Griffin learned that Vaughn had only $50,000 of liability insurance coverage. Griffin then requested that his uninsured motorist carrier, the appellee Shelter Mutual Insurance Company (“Shelter”), pay the remainder of the judgment up to its policy limit of $100,000. When Shelter refused the claim, Griffin brought this action against Shelter in the Chancery Court for Davidson County. The Chancellor granted summary judgment to Shelter, finding that Griffin had failed to comply with the notice provisions of the insurance policy and with the service provisions of TenmCode Ann. § 56-7-1206(a). The Court of Appeals agreed that Griffin had failed to comply with the service provisions of TenmCode Ann. § 56-7-1206(a) and thus affirmed the grant of summary judgment in favor of Shelter. This Court thereafter granted Griffin’s application for permission to appeal.

This Court granted Donald E. Griffin’s application for permission to appeal to consider: (1) whether language in the uninsured motorist insurance policy waived the requirements of service under Tenn.Code Ann. § 56-7-1206(a); and (2) whether strict application of the statute to bar Griffin’s claim is contrary to the public policy of this State as expressed in Alcazar v. Hayes, 982 S.W.2d 845 (Tenn.1998) and Bolin v. Tennessee Farmer’s Mut. Ins. Co., 614 S.W.2d 566 (Tenn.1981). We conclude that the language of the insurance policy does not waive the statutory requirement of service and that strict application of the statute is not contrary to public policy. Accordingly, the judgment of the Court of Appeals upholding the Chancellor’s grant of summary judgment is affirmed.

BACKGROUND

On May 14, 1994, the appellant was involved in an automobile accident on 1-65 in Maury County in which his car was struck from the rear by a vehicle driven by Richard Vaughn. Vaughn had liability insurance coverage with Allstate Insurance Company (“Allstate”). Allstate reimbursed Griffin for the property damage to his car caused by the accident; however, Griffin eventually obtained an attorney and filed suit in Maury County Circuit Court to recover damages for personal injuries he sustained in the accident. Allstate provided counsel to defend Vaughn. Although Shelter also retained counsel for the limited purpose of protecting its subrogation claim for medical payments made to Griffin under the medical payments coverage, Griffin’s attorney agreed to protect Shelter’s subrogation interest at one hundred percent. Therefore, Shelter’s attorney did not actively participate in the Maury County lawsuit. Moreover, it is undisputed that Griffin did not serve Shelter with a copy of the process in accordance with Tenn.Code Ann. § 56-7-120Q(a) It is also undisputed that Griffin did not forward to Shelter any of the “legal papers” relating to his lawsuit against Vaughn.

Griffin’s suit against Vaughn proceeded to trial, and on May 31, 1996, the jury returned a verdict for Griffin in the amount of $225,000. After the judgment was rendered, Vaughn’s attorney informed Griffin’s attorney that Vaughn had only $50,000 of liability insurance coverage. Thereafter, in early October of 1996, Griffin’s attorney notified Shelter in writing for the first time that Griffin intended to make a claim under his uninsured motorist policy and provided Shelter with a copy of the judgment against Vaughn. After Shelter denied Griffin’s claim under the uninsured motorist policy, Griffin filed this lawsuit against Shelter in the Chancery Court for Davidson County on April 1,1997.

On August 29, 1997, Shelter filed a motion for summary judgment. Griffin responded and also moved for summary judgment. By an order entered November 3, 1997, the Chancellor granted Shelter’s motion for summary judgment and dismissed Griffin’s complaint. Griffin appealed the Chancellor’s decision, and the Court of Appeals affirmed the trial court’s finding that summary judgment was appropriate since Griffin had failed to comply with Tenn.Code Ann. § 56-7-1206(a). For the following reasons, we affirm the judgment of the Court of Appeals.

STANDARD OF REVIEW

The standards governing an appellate court’s review of a summary judgment motion are well settled. Our inquiry involves purely a question of law; therefore, we review the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to judgment as a matter of law. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn.1996); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); Tenn. R. Civ. P. 56.03.

STATUTORY REQUIREMENT

We begin our analysis of the issues in this appeal by considering Tenn.Code Ann. § 56-7-1206(a), the statutory provision requiring service of process upon the uninsured motorist carrier, and the judicial decisions which have applied and interpreted this provision. The statute provides that

[a]ny insured intending to rely on the coverage required by this part shall, if any action is instituted against the owner and operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant. Such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, that nothing in this subsection shall prevent such owner or operator from employing counsel of the owner’s own choice; and provided further; that the evidence of service upon the insurance carrier shall not be made a part of the record.

The intention of the General Assembly in enacting this statute was to provide an efficient procedure to allow persons to obtain complete relief from their uninsured motorist policy when injured by an uninsured motorist who is financially unable to respond in damages. See Brewer v. Richardson, 893 S.W.2d 935, 938 (Tenn.1995); Winters v. Estate of Jones, 932 S.W.2d 464, 466 (Tenn.Ct.App.1996) perm. app. denied (Tenn. Oct. 7,1996); Lady v. Kregger, 747 S.W.2d 342, 345 (Tenn.Ct.App.1987).

In Glover v. Tennessee Farmers Mut. Ins. Co., 225 Tenn. 306, 468 S.W.2d 727 (Tenn.1971), this Court held that, absent a specific policy provision authorizing a direct action, the uninsured motorist statute does not permit a plaintiff to bring suit directly against an uninsured motorist carrier. Our decision in Glover disallowing such direct actions was prompted by a number of considerations, including: “(1) the insurer’s right to remain anonymous; (2) the effect of direct suits on the insurer’s statutory right of subrogation; and (3) the nature of the “protection” afforded by the uninsured motorist statutes.” Brewer, 893 S.W.2d at 937. The Glover court addressed this latter consideration and summarized its holding in the following manner:

The whole intent and purpose of the uninsured motorist act is, in essence, to provide protection by making the insurance carrier stand as the insurer of the uninsured motorist, with two necessary consequences. (1) The suit has to be brought against the uninsured motorist, with the fact of insurance excluded as a possible prejudicing factor, as in any other such case; and (2) the insurance company is bound by the judgment rendered in that suit, to the extent of its policy limits, where it is afforded the statutory opportunity to defend the uninsured motorist.

Glover, 468 S.W.2d at 730 (emphasis in original).

Although we did not explicitly address in Glover the statutory service requirement at issue in this appeal, the Court of Appeals has squarely faced the issue and held that an insured must strictly comply with the statute’s requirement relating to service of process. In Eyman v. Kentucky Central Ins. Co., 870 S.W.2d 530 (Tenn.Ct.App.1993) perm. app. denied (Tenn. Jan. 31, 1994), the Eymans were involved in an automobile accident with an uninsured motorist. The Eymans sought compensation under the uninsured motorist policy issued to them by Kentucky Central Insurance Company (“Kentucky Central”). When settlement negotiations with Kentucky Central broke down, the Ey-mans filed suit against the uninsured motorist. The Eymans mailed a letter, along with a copy of the complaint and an unsigned copy of the summons to Kentucky Central. However, no summons was issued or process served on Kentucky Central pursuant to Tenn. R. Civ. P. 4.02. Accordingly, Kentucky Central did not file an answer or otherwise appear in the action. The Chancellor entered a default judgment against the uninsured motorist in the amount of $125,000, and thereafter, the Eymans filed suit seeking a declaratory judgment against Kentucky Central for $125,000. The Chancellor granted the Ey-mans’ motion for summary judgment, but the Court of Appeals reversed upon finding that the Eymans had failed to strictly comply with the statutory requirement of service.

In so holding, the Court of Appeals first stressed that the plain language of Section 1206(a) directs that the plaintiff shall “serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant.” Eyman, 870 S.W.2d at 531. Although acknowledging that Kentucky Central no doubt understood the ramifications of the letter sent by the Eymans’ attorney, the Court of Appeals found that the letter was insufficient to “constitute compliance with the statute.” Id. at 532. The Court of Appeals emphasized that “the legislature has seen fit to set up procedural rules in order to protect the rights of litigants. It is the responsibility of this court to enforce those rules.” Id.

Our review of the foregoing authorities clearly establishes that in the absence of a policy provision, a plaintiff generally may not institute a direct action against an uninsured motorist carrier, and a plaintiff intending to rely upon uninsured motorist coverage must strictly comply with the statutory requirements relating to service of process. With these general principles in mind, we proceed to the issues in this appeal.

POLICY PROVISION

In this Court, Griffin concedes that he did not serve Shelter in accordance with Tenn.Code Ann. § 56-7-1206(a), but he argues that summary judgment is inappropriate because a specific provision in his uninsured motorist policy waives the statutory requirement of service. The policy provision upon which Griffin relies contains the following language:

... No judgment on a suit against a person or firm causing bodily injury will determine whether we will have to pay, or how much, unless we have consented in writing that suit be brought.

According to Griffin, this policy provision should be construed to permit a direct action against Shelter following entry of a judgment against an uninsured motorist if Shelter consented in writing to the insured’s institution of the lawsuit against the uninsured motorist. Griffin argues that Shelter consented in writing to the institution of the action against Vaughn when the attorney Shelter retained to protect its subrogation interest made a written offer to assist Griffin’s attorney in the prosecution of the action against Vaughn.

In contrast, Shelter argues that Griffin is reading the policy provision in isolation and out of context. Shelter asserts that the policy provision upon which Griffin relies actually establishes an additional condition that must be satisfied and that the provision does not waive Griffin’s obligation to also comply with the requirements of Tenn.Code Ann. § 56-7-1206(a). Since the evidence is undisputed that Griffin did not comply with the requirements of Section 1206(a), Shelter argues that the lower courts correctly granted summary judgment.

This Court has previously recognized that “[a]n insurance policy is a contract of adhesion drafted by the insurer.” Alcazar, 982 S.W.2d at 851 (citing Bill Brown Const, v. Glens Falls Ins., 818 S.W.2d 1, 12 (Tenn.1991)). As such, insurance contracts do not contain terms which are the result of mutual negotiation and concession but instead contain terms fixed by the insurer and to which the insured must adhere if the insured desires insurance coverage. Alcazar, 982 S.W.2d at 851-52 (citing Brandt v. Mutual Ben. Health & Acc. Ass’n, 30 Tenn.App. 14, 202 S.W.2d 827 (1947)). Given these realities, we construe provisions in an insurance policy against the insurer and in favor of the insured so as to provide coverage. Id. Like any other contract, however, this Court has a duty to enforce insurance contracts “according to their plain terms. Further, the language used must be taken and understood in its plain, ordinary and popular sense. The courts, of course, are precluded from creating a new contract for the parties.” Alcazar, 982 S.W.2d at 848-49 (quoting Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.1975)).

Applying these well-settled rules, we reject Griffin’s argument that the policy provision allowed him to forego compliance with the statute. Griffin is essentially asking this Court to create a new contract for the parties. The plain language of the policy provision does not waive the statutory requirement. The statutory requirement of service is not even mentioned in the policy provision. Indeed, as Shelter argues, the policy provision appears to set out a condition, written consent, that is supplementary to the statutory requirement of service. Accordingly, we reject Griffin’s argument that the policy provision allowed him to forego the statutory requirement of service of process.

PUBLIC POLICY EXCEPTION

Griffin next argues that this Court should reverse the decision of the lower courts because applying the statute strictly to bar his claim is contrary to the public policy of this State as expressed by this Court in Alcazar v. Hayes, 982 S.W.2d 845 (Tenn.1998) and Bolin v. Tennessee Farmer’s Mut. Ins. Co., 614 S.W.2d 566 (Tenn.1981). Shelter responds that this Court should strictly apply Tenn.Code Ann. § 56-7-1206(a) because it is an expression of the public policy of this State.

In Alcazar, this Court considered whether an uninsured motorist policy is automatically forfeited when the insured does not comply with the notice provision of the insurance policy. Abandoning the traditional approach, which recognized that notice is a condition precedent to recovery under a policy and which required automatic forfeiture even without a showing of prejudice to the insurer, we adopted in Alcazar the modern trend and held that in order for forfeiture of an insurance policy to result from an insured’s breach of a notice provision, prejudice to the insurer must be shown. See Alcazar, 982 S.W.2d at 856. In so holding, we stated that “this state’s public’ policy disfavors the ability of the insurer to escape its contractual duties due to a technicality.” Id. at 852.

While Griffin is correct that we considered public policy in reaching our decision in Alcazar, Griffin fails to recognize that in Alcazar, we were considering not a' statute, but an insurance contract. Here, Griffin asks us to find that a statutory provision should not be applied because it is against public policy. As we recognized in Alcazar “the determination of public policy is primarily a function of the legislature” and the judiciary determines “public policy in the absence of any constitutional or statutory declaration.” Id. at 851 (emphasis added). The issue in this appeal is specifically governed by a statutory provision adopted by the General Assembly, the governmental branch primarily responsible for determining public policy. We are not at liberty to simply declare that the statute violates public policy and refuse to apply its plain language. As we have recognized on many occasions, it is not the duty of courts to alter or amend a statute, question the statute’s reasonableness, or “substitut[e][our] own policy judgements for those of the legislature.” BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn.Ct.App.1997). Griffin’s reliance upon Alcazar is misplaced.

Finally, Griffin contends that the lower courts erred in granting summary judgment because this case is controlled by Bolin which announced a narrow exception to the general rule that precludes an insured from bringing a direct action against an uninsured motorist carrier. We find that Bolin is distinguishable.

In Bolin, the plaintiff pursued his tort claim against an apparently insured defendant without serving his own uninsured motorist carrier. However, the plaintiffs carrier had actively participated in the lawsuit defending the plaintiff from a counter-claim. Following the trial, the plaintiff learned for the first time that the defendant was effectively uninsured because the defendant’s insurance earner had defended the action under a reservation of rights and had thereafter denied coverage to the defendant. The plaintiff then sued his uninsured motorist carrier.

Under those particular circumstances, this Court held that the plaintiff in Bolin could maintain a direct action against his uninsured motorist carrier. This Court pointed out that the uninsured carrier in Bolin had been actively involved in the litigation because the carrier had defended the plaintiff on a cross-claim and was therefore not prejudiced by the plaintiffs failure to comply with the statute. In so holding, this Court stated:

[t]he rule laid down by the Court of Appeals in the present case would be a harsh one and would require every plaintiff, suing an apparently insured defendant, also to implead his own uninsured motorist carrier or otherwise lose the benefit of his coverage in the event the tort-feasor should prove to be uninsured for some reason unknown to the plaintiff. While we adhere to the Glover decision, supra, as a general rule, we find that application of that rule under the unusual facts of this case would be unduly harsh and would deprive appellants of valid insurance which they had purchased, without fault on their part and without the insurer’s having been prejudiced.

Bolin, 614 S.W.2d at 568-69.

One key fact fully distinguishes this case from Bolin. Unlike the uninsured motorist carrier in Bolin, Shelter did not actively participate in the trial of the lawsuit against Vaughn, the uninsured motorist. Accordingly, the holding of Bolin does not apply to this case. Contrary to Griffin’s argument, by refusing to apply Bolin we are not adopting a rule which will require a plaintiff to bring suit against his or her uninsured motorist carrier in every case. In this case, Griffin asserted a large claim against Vaughn, $500,000. Vaughn’s only settlement offer was $17,500, even after Griffin offered to discuss a settlement at policy limits. We agree with the Court of Appeals that under these circumstances it is only logical for the plaintiff to follow the statutory mandate and serve the uninsured motorist carrier so that the carrier may determine how to protect its own interests. The holding in Bolin does not apply in this case to excuse Griffin’s failure to comply with the statutory provision requiring service upon the uninsured motorist carrier. Indeed, as the Court of Appeals recognized, were we to apply Bolin to this case, the exception would very shortly swallow the general rule.

CONCLUSION

Having concluded that the language of the insurance policy does not waive the statutory requirement of service and that strict application of the statute is not contrary to public policy, we affirm the judgment of the Court of Appeals upholding the Chancellor’s grant of summary judgment. Costs of this appeal are taxed to the appellant, Donald E. Griffin, for which execution may issue if necessary.

      . That statute provides as follows:
      Any insured intending to rely on the coverage required by this part shall, if any action is instituted against the owner and operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant. Such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, that nothing in this subsection shall prevent such owner or operator from employing counsel of the owner’s own choice; and provided further; that the evidence of service upon the insurance carrier shall not be made a part of the record.

      . See Town of Mount Carmel v. City of Kingsport, 217 Tenn. 298, 306, 397 S.W.2d 379, 382 (1965).