State of Tennessee v. Rosemary L. Decosimo

No. E2017-00696-SC-R11-CD

Attorney Contributor: Mark Fulks

Criminal Law Journal Member: Chase Misenheimer

Full Article PDF: State of Tennessee v. Rosemary L. Decosimo

This case began on August 18, 2012, when the defendant, Rosemary L. Decosimo, was arrested for driving under the influence (“DUI”) with a blood alcohol content above 0.08% which constitutes DUI per se.  The defendant consensually provided a blood sample upon her arrest, and the sample was submitted for analysis to the Forensic Services Division of the Tennessee Bureau of Investigation, (the “TBI”).  The defendant challenged the constitutionality of the $250 “blood alcohol or drug concentration test (“BADT”) fee” on every person convicted of statutorily specified offenses, including DUI, if the offender “has taken a breath alcohol test on an evidential breath testing unit provided, maintained, and administered by a law enforcement agency for the purpose of determining the breath alcohol content” or the offender “has submitted to a chemical test to determine the alcohol or drug content of the blood or urine.”

The BADT fees are collected by clerks and forwarded to the state treasurer for deposit

into the TBI’s toxicology unit’s Intoxicant Testing Fund, (the “ITF”).  The monies deposited into the ITF do not revert to the State’s general fund, but instead remain available for appropriation to the TBI, as determined by the General Assembly.  The money is used “to fund a forensic scientist position in each of the three (3) [TBI] crime laboratories, to employ forensic scientists to fill these positions, and to purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the [TBI] to operate in a more efficient and expeditious manner.”  Any additional available funds “shall be used to employ personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or for any other purpose so as to allow the bureau to operate in a more efficient and expeditious manner.”

On January 31, 2014, the defendant filed a motion to dismiss, or in the alternative, to suppress the TBI’s blood alcohol test results.  The defendant contended the constitutionality of the BADT fee by arguing that conditioning the BADT fee upon conviction and allocating the monies collected to the ITF instead of to the State’s general fund incentivizes the TBI’s forensic scientists to develop test results that produce convictions.  The defendant argued that this system invokes an appearance of impropriety and potential for abuse that violated her fundamental right to a fair trial as guaranteed by both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution.

At trial, the defendant’s defense motions for suppression and dismissal were denied.  The defendant entered a nolo contendere plea to DUI per se and reserved the following certified question of law for appeal:

Whether the trial court erred in not dismissing this case, or alternatively, suppressing the blood alcohol evidence without which the State could not proceed against the defendant on this DUI per se conviction, where T.C.A. § 55-10-413(f) is unconstitutional in violation of due process and rights to a fair trial under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and under article I, sections 8 and 9 of the Tennessee Constitution based on the fact that the [TBI] receives a $250 BADT/BAT fee in every case in which a conviction is obtained for driving under the influence or other listed offense, wherein a TBI blood test or TBI-calibrated breath test result is used, thereby creating a “contingent-fee-dependent system” susceptible to bias because the TBI’s testing and interpretation of these tests play the determinative role in the prosecution of the charge, and a jury instruction regarding this statutory incentive in favor of conviction is insufficient to cure the magnitude of the constitutional violation.

 

The Court of Criminal Appeals resolved the question and held that the BADT fee violates “due process principles” by creating in the TBI a “direct pecuniary interest in securing convictions.”

The Appeals Court reversed the trial court, granted the motion to suppress the results of the TBI blood alcohol testing, and dismissed the DUI per se charge.

The Tennessee Supreme Court granted the State’s application for permission to appeal. Upon de novo review, the Court held that under both the federal and state constitutions, the standards of neutrality apply only to persons exercising either judicial or quasi-judicial authority and do not apply to TBI forensic scientists which lack such authority.  Additionally, even if the standards applied to TBI forensic scientists, the constitutional claim fails because the scientists have “no direct, personal, substantial pecuniary interests in fees imposed pursuant to the [BADT] statute, and any institutional financial interest the scientists may have . . . is too remote to give rise to an appearance of impropriety.”  Furthermore, the Court also disagreed with the Court of Criminal Appeals that the statute violates substantive due process, and thus, the Court of Criminal Appeals was reversed, and the trial court’s judgment was reinstated.

The most striking thing about the Supreme Court’s opinion—and the Court of Criminal Appeals’ opinion that preceded it—is that the appellate courts did not have jurisdiction to hear the certified question because it is not dispositive of the case.  Neither appellate court addressed the jurisdictional prerequisites.^,  The rules of criminal procedure permit a criminal defendant to appeal a certified question of law following plea of guilty or nolo contendere only if:

(A) the defendant entered into a plea agreement under Rule 11(c) but explicitly reserved–with the consent of the state and of the court–the right to appeal a certified question of law that is dispositive of the case, and the following requirements are met:

 

(i) the judgment of conviction or order reserving the certified question that is filed before the notice of appeal is filed contains a statement of the certified question of law that the defendant reserved for appellate review;

 

(ii) the question of law as stated in the judgment or order reserving the certified question identifies clearly the scope and limits of the legal issue reserved;

 

(iii) the judgment or order reserving the certified question reflects that the certified question was expressly reserved with the consent of the state and the trial court; and

 

(iv) the judgment or order reserving the certified question reflects that the defendant, the state, and the trial court are of the opinion that the certified question is dispositive of the case.

 

The Tennessee Supreme Court has held that a certified question “is dispositive when the appellate court must either affirm the judgment of conviction or reverse and dismiss the charges.”  Moreover, the appellate courts are “not bound by the determination and agreement of the trial court, a defendant, and the State that a certified question of law is dispositive of the case.”  Instead, the appellate courts are required to “make an independent determination that the certified question is dispositive.”  Furthermore, and most importantly, the appellate courts do not have jurisdiction to decide certified questions that are not dispositive.  Thus, when a defendant reserves a certified question challenging some but not all of the state’s evidence, the question is not dispositive because the State has other evidence to sustain the defendant’s prosecution.  “When the record contains incriminating evidence apart from that challenged through the certified question, the appellate court must dismiss the appeal because the certified question is not dispositive.” F

 

Here, the Supreme Court’s opinion makes it clear that the certified question was not dispositive.  Decosimo challenged to the constitutionality of the BADT statute on due process grounds and sought to exclude the testimony of the TBI’s forensic scientist who tested her blood sample on the ground that both the scientist individually and the TBI as an institution had a financial incentive to generate test results that support convictions, which, in turn, lead to the imposition of the BADT fee.  Yet Decosimo did not seek suppression of the blood sample itself, which she provided voluntarily, and which incriminated her in the crime of DUI per se independently of the TBI agent’s testimony.

The remedy for a successful facial challenge to the constitutionality of a statute is  invalidation of the statute.  The remedy for conflicts of interest is disqualification in the context of expert witnesses, prosecuting attorneys,  and defense counsel.  Dismissal is only a remedy when the conflict disqualifies the prosecuting attorney and strikes at the heart of the prosecuting attorney’s charging decision.  Thus, the courts could remedy the constitutional challenge to the BADT fee statute by invalidating the statute and precluding the State from collecting the fee upon the defendant’s conviction.  And, although no court has ever excluded the testimony of a law enforcement officer on the ground that a conflict of interest created an appearance of impropriety, the courts could remedy the defendant’s claim that the TBI forensic scientist, who may be viewed as an expert witness, by disqualifying the witness and precluding the witness from testifying.  Under these circumstances, dismissal is not an option.

But that is not the only reason the certified question is not dispositive of the case.  Even if the courts declared the statute void and disqualified the forensic scientist, individually, or the TBI, collectively, the prosecution would still be entitled to use the defendant’s blood sample to prove her guilt.  In the absence of the TBI forensic scientist, the prosecution would remain free to submit the blood sample for analysis by an independent laboratory.  This point finds emphasis in the court’s discussion of the discharged forensic scientist: “The TBI fired the forensic scientist and sent all samples he had tested to an outside laboratory for retesting.”  In that instance, the TBI procured retesting of 2,827 blood samples.  The TBI, or the District Attorney General, could more easily obtain retesting of the defendant’s blood sample and those of the twenty-two other defendants who challenged the BADT fee statute.  In the end, the results of the independent laboratory testing would be available to the prosecution for use at trial against Decosimo.

It is no answer to claim that the appellate courts obtained subject matter jurisdiction through the defendant’s citation of Tumey v. Ohio, 273 U.S. 510 (1927), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Connally v. Georgia, 429 U.S. 245 (1977), and her claim that dismissal is the appropriate remedy.  For one thing, the claim falls hard upon the Supreme Court’s conclusion that those cases apply only to judicial and quasi-judicial officers and not to TBI forensic scientists.  For another, if Rule 37(b) is to retain any meaning, the appellate courts cannot leave the existence of subject matter jurisdiction to a defendant’s outlandish claim to an unavailable remedy and citation to inapposite authority.  To do so would reduce the jurisdictional analysis to the mere incantation of talismanic buzzwords devoid of substance.

Beyond the jurisdictional issue attendant to the lack of dispositivity, the Supreme Court’s opinion is straightforward and flows directly from the factual distinctions between the defendant’s case and the cases that she cites.  The United States Supreme Court limited Tumey and its progeny to cases in which the neutrality of judicial or quasi-judicial actors was at issue.  Moreover, the Supreme Court held in Marshall that Tumey strict neutrality did not apply to administrative prosecutors.  The defendant attacked the conduct of law enforcement forensic scientists who the Tennessee Supreme Court rightly concluded resided one-step removed from the prosecutors.  Simply stated, the TBI’s forensic scientists are not deciders in the adjudicatory process; they do not decide to file charges, nor do they decide whether the defendant is guilty.  Instead, the forensic scientists merely analyze the evidence submitted to the crime laboratory.  Accordingly, the defendant’s appeal was destined to fail under the cited authority.

Nevertheless, the Court held that forensic scientists’ conduct may be subject to the constraints of due process.  And, after stating that it would not determine the boundaries imposed by due process, the court proceeded, by negative implication, to do precisely that.  The Court appears to suggest that due process will be offended when a forensic scientist has “a direct, personal, substantial pecuniary interest in producing a particular test result.”  Likewise, the Court appears to suggest that due process will be offended when the facts demonstrate “a realistic possibility” that a forensic scientists judgment will be distorted by the prospect of institutional gain.  These two points are analogous to the circumstances that have caused some courts concern over the governments outrageous and egregious conduct in criminal investigations.

State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks

No. M2016-02134-SC-R11-CD

Attorney: Mark J. Fishburn, Criminal Court Judge

Criminal Law Journal Member: Erin Hagerty

Full Article PDF: State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks

The facts in State of Tennessee v. Charlotte Lynn Frazier and Andrea Parks are straightforward and uncontested.  Various law enforcement agencies within the 19^th and 23^rd Judicial Districts were engaged in a joint ongoing wiretap investigation looking into the distribution of methamphetamine in Middle Tennessee. The investigation extended from July – October of 2015.  The supervising judge of the wiretap investigation was an elected circuit court judge in the 23^rd Judicial District, who in late October 2015 issued search warrants upon the homes of the defendant, both of whom resided in the 19^th judicial district.  Law enforcement obtained the warrants from the supervising judge because of that judge’s familiarity with the investigation and the suspects involved in the larger conspiracy. A significant amount of drugs, money and several guns were seized from both Frazier’s home and Park’s home during the execution of the search warrants.

Ultimately, a presentment issued from Dickson County against the defendants and nearly 100 other people charging them with conspiracy to distribute 300 grams or more of methamphetamine. The Defendants challenged the validity of the search warrants of their residences located in the 19^th Judicial District based on the lack of jurisdiction of the issuing judge from the 23^rd Judicial District pursuant to Tenn. R. Crim. Proc. 41(a). Specifically, the defendants challenged the authority of the supervising wiretap judge, admittedly a magistrate for purposes of search warrants, to issue search warrants on property not located in counties within his judicial district. The Circuit Court judge presiding over the proceedings arising from the presentment, granted the motion to suppress and excluded the seized property.

The State sought and was granted an interlocutory appeal under Tenn. R. App. Proc. 9 on this issue and on the non-litigated issue of whether the good-faith exception to the exclusionary rule applies to the instant case. On appeal, the State cited Tenn. Code Ann. 40-1-106 to support its position that the circuit court judge had statewide jurisdiction. In the alternative, the State argued for the first time that even if the judge exceeded his jurisdictional authority, this was a technical violation of Rule 41(a) and the evidence was subject to the good faith exception of the exclusionary rule. The Court of Criminal Appeals affirmed the trial court’s ruling on the limited jurisdictional authority of a circuit court judge to issue search warrants. Further, the Court of Criminal Appeals ruled that the good-faith exception to the exclusionary rule was inapplicable because the violation was a constitutional violation, not a technical one, and therefore, the court upheld the suppression of the evidence. The Tennessee Supreme Court accepted the State’s Rule 11 application for permission to appeal on both issues raised and decided before the Tennessee Court of Criminal Appeals.

The Tennessee Supreme Court, affirming the decisions of the lower courts, held that the Circuit Court judge of the 23^rd Judicial District lacked authority to issue a search warrant for property located outside of that judge’s statutorily designated judicial district “in the absence of interchange, designation, appointment, or some other lawful means of obtaining expanded geographical jurisdiction.” Although the Court agreed with the State that the language of Tenn. Code Ann. 40-1-106 was unambiguous, contrary to the holding of the Court of Criminal Appeals, the Tennessee Supreme Court disagreed with the State’s contention that the statute gave statewide authority to a Circuit Court judge to perform the duties statutorily bestowed upon magistrates, including, inter alia, the authority to issue search warrants.

Additionally, the Tennessee Supreme Court, relying on the exercise of its general supervisory authority, addressed the issue raised by the State for the first time on appeal that the good-faith exception to the exclusionary rule should apply to the trial judge’s action as argued before the Court of Criminal Appeals. The Supreme Court “decline[d] to extend the good-faith exception to the circumstances of this case.” In doing so, the Court noted “the delay in raising the issue, the absence of a specific request for extension of the good-faith exception from the State, and the limited scope of review in interlocutory appeals.”

At first glance, the Frazier decision seems to be one of those mundane decisions that garner little attention in the legal community because of its limited applicability and the unlikelihood that it will be an issue in any future litigation. In practice, there are few situations that lend itself to law enforcement seeking a search warrant for property not within its judicial jurisdiction. And, unlike many opinions that create as many new questions as old ones are answered, the Court’s opinion on the jurisdictional powers of circuit court judges as magistrates is clear i.e. a circuit court judge, unless specifically provided in accordance with any statute, cannot issue a search warrant on property outside the statutorily defined judicial district for that judge.

The issue before the Court required it to apply the well-established rules of statutory construction to certain statutes and rules of criminal procedure to ascertain “the geographical jurisdiction of a circuit court judge who is acting as a magistrate.” After establishing that circuit court judges are magistrates for purposes of issuing search warrants, the legal authority for the General Assembly to define the geographical makeup of each of the thirty-one (31) judicial districts, and the authority of magistrates to issue search warrants the court undertook a review of relevant statutes which, when read together, lead to the conclusion that a circuit court judge’s authority is limited to the geographical jurisdiction to which that judge is elected when serving as a magistrate.

Notably the State never contested the meaning or effect of these laws. Instead, the State argued that circuit court judges were granted statewide authority to perform the duties of magistrates to issue search warrants pursuant to Tenn. Code Ann. 40-1-106 relying on the phrase “throughout the state” for this expanded jurisdictional authority. Although the Court agreed with the State that the statute was unambiguous, contrary to the finding of the Court of Criminal Appeals, it disagreed with the State’s contention that the language cited operates to expand the jurisdictional authority of circuit court judges statewide when acting in the capacity of a magistrate. The Court rejected this argument relying again on well-established rules of statutory construction.

If the Supreme Court had limited its opinion to the sole issue raised at the trial court, then the story would have ended and Frazier likely would have faded off into obscurity seldom, if ever, to be cited as authority in future litigation. However, the Court, in accepting review of this interlocutory appeal and pursuant its inherent exercise of supervisory authority, also agreed to review the issue of the applicability of the good-faith exception to the exclusionary rule which was first raised by the State before the Court of Criminal Appeals. It is the decision by the Court to address the applicability of the good-faith exception that makes Frazier potentially intriguing and possibly serves as a precursor for future litigation.

The good-faith exception to the exclusion of unlawfully seized evidence was first adopted by the Tennessee Supreme Court to allow the introduction of blood evidence improperly seized without a warrant where it was determined that the police conducted the seizure in an objectively reasonable reliance on binding appellate precedent. Later that same year, the Tennessee Supreme Court extended the good-faith exception to evidence seized pursuant to a search warrant reasonably and in good-faith executed by law enforcement believed to be valid, but later determined to be invalid because of a good-faith failure of the parties to comply with affidavit statutory and procedural requirements. The good-faith exception was next invoked to deny suppression of evidence seized pursuant to a constitutionally issued warrant that was defective under Rule 41 due to an inconsequential clerical error which resulted in a variation in the three copies of the search warrant. That same day, the Court found the good-faith exception to apply to evidence seized pursuant a validly issued search warrant, but the police failed to comply with the technical requirement of Rule 41 to leave a copy of the warrant with the defendant.

It is against this backdrop that the State again sought application of the good-faith exception to the exclusionary rule when a circuit court judge exceeds his or her jurisdictional authority as a magistrate to issue a search warrant. First, the State urged the Court to apply the good faith exception because the defect in the warrant was an inadvertent, clerical or technical error to the requirements of Rule 41, similar to the facts in Davidson, Lowe, and Daniel. In rejecting this argument, the Court determined that Frazier did not “involve an inadvertent, clerical or technical error.” Instead the warrant in question in Frazier went beyond the constitutional and statutory jurisdictional authority granted him, and therefore, was void ab initio. The State also argued that the good-faith exception should apply because the police acted in an objectively reasonable good-faith reliance on binding appellate precedent under authority approving searches under facts similar to those in this case.  However, the Court rejected this argument, stating that the cases cited by the State were not binding on it, but were instead only persuasive authority which it declined to follow.

The Frazier opinion marks the first time the Tennessee Supreme Court has refused to extend the good-faith exception to a case before it since its adoption in Reynolds. That makes Frazier unique, at least momentarily. What makes it interesting and intriguing is why the Court felt the obligation to exercise its supervisory authority to consider the good-faith issue based on the facts before it in the first instance. Frequently, this is done to avoid needless litigation or particularly to eliminate confusion with respect to common law doctrines and procedures. However, as pointed out by the Court in its opinion and as referenced above, the act of the circuit judge in signing the search warrant for property outside his jurisdiction was a nullity from the start. Clearly there was no relevant common law to the original issue before the court. And if the warrant was void from the start, is there any circumstance that would permit the good-faith or any other exception to somehow breathe life into a non-existent order that needed to be addressed to avoid needless litigation? As farfetched as that question may seem, the Court only relied upon the warrant being void to reject the State’s argument that the good-faith exception under Davidson, Lowe, and Daniel applied. It did not extend this reasoning to its denial under Reynolds, instead stating that the State failed to present binding rather than persuasive authority for its argument to apply the good-faith of the exception to this case. Ultimately, the Court observed that under the circumstances of this case “the delay in raising the issue, the absence of a specific request for extension of the good-faith exception from the State, and the limited scope of review in interlocutory appeals, we decline to extend the good-faith exception.”

The Court’s reasoning not to apply the good-faith exception, while correctly decided, is not reassuring to the finality of its ruling on the jurisdictional authority of the circuit courts to issue search warrants. If one of the reasons for denial was “the delay in raising the issue,” then why exercise its judicial authority to agree to consider it? The same question may be asked of the court’s reasoning for considering the issue despite the lack of a specific request to extend the good-faith exception and based on the limited scope of review of interlocutory appeals. The court was fully aware of all of these circumstances when it chose to consider the issue. So, what was the point of addressing the good-faith exception?

If there is anything that we can learn from Frazier it is that the good faith exception to the exclusionary rule is alive and vibrant. It is unprecedented for the Supreme Court to grant permission to review the same exception to the exclusionary rule five times in a span of two years, but that is the reality of what has occurred with the good-faith exception.  Clearly the law laying out this recently created exception is evolving and will continue to evolve. In the case of Frazier, the Court seemed to send out a standing invitation to “come visit again” when a party is timely in raising and specific in seeking application of the good-faith exception that is presented to them in a Tenn. R. App. Proc. 3 appeal of right. Oh and by the way, it wouldn’t hurt to bring a little federal appellate authority to the table to support the position that the good-faith exception can overcome a void act. We may find that “under the unique circumstances of that case” even an act that is void ab initio or a nullity might yet have legs to prevent the exclusion of evidence.

 

 

 

 

 

Tommy Nunley v. State of Tennessee

No. W2016-01487-SC-R11-ECN

Attorney: Kimiya Sarayloo

Criminal Law Journal Member: Philip Butler

Full Article PDF: Tommy Nunley v. State of Tennessee

The Tennessee Supreme Court’s unanimous decision in Nunley v. State restricts the ability of pro se criminal defendants to obtain coram nobis relief.  Nunley held that a pro se coram nobis petition is subject to being summarily dismissed if the face of the petition does not show that it was timely filed or that the defendant is entitled to equitable tolling of the statute of limitations.

Tommy Nunley was convicted of aggravated rape in 1998. On July 25, 2000, he filed a petition for post-conviction relief, claiming that his “trial counsel was ineffective for failing to move for state-funded expert assistance for DNA testing of various items collected during the investigation of the case.” After an evidentiary hearing, the post-conviction court entered a sua sponte order, directing the TBI to conduct DNA comparison testing between biological samples taken from the Defendant and those in the victim’s sexual assault kit. However, the State reported that the sexual assault kit had been either lost or destroyed and was no longer available for testing. On July 11, 2003, the post-conviction court granted the Defendant’s petition for post-conviction relief, finding that the failure to test the evidence at the time of trial resulted in a violation of the Defendant’s constitutional right to a fair trial. The State appealed, and the Court of Criminal Appeals reversed the post-conviction court, holding that the proof did not support a finding that trial counsel’s request for DNA testing would have affected the outcome of the Defendant’s trial.

In May 2014, the Defendant filed a petition for relief under the Post-Conviction DNA Analysis Act, requesting DNA testing on all evidence in the State’s possession. The trial court denied the Defendant’s petition based on the post-conviction court’s prior finding that any evidence which would have been tested no longer existed, and the Criminal Court of Appeals affirmed.

In May 2016, the Defendant filed a pro se petition for writ of error coram nobis, claiming that the State’s July 7, 2014 response to his petition for post-conviction DNA analysis included four exculpatory exhibits of which he had not previously been aware. The first exhibit to the Defendant’s coram nobis petition included two reports from a forensics laboratory. The second exhibit consisted of two letters from the Assistant District Attorney to the TBI Crime Lab, asking for DNA testing of the evidence in the Defendant’s case, or at least blood typing. The third exhibit was an “Official Serology Report” from the TBI Crime Lab, and the fourth exhibit was a “memo” to the prosecution’s case file from Assistant District Attorney. A type-written statement on the memo read, “I spoke to Steve Wiechman at the TBI lab. His lab’s policy is not to re-do tests already done by another certified lab. The local lab . . . determined that there was no match between the defendant and the [victim]. He will not re-do any tests.” The Defendant claimed that these four exhibits demonstrated that the State withheld exculpatory evidence that would have exonerated him, in violation of his Constitutional right to due process.

The trial court dismissed the Defendant’s petition on its face as time barred.  On appeal, the Court of Criminal Appeals first declined to address whether the Defendant’s petition was timely because the State did not plead the statute of limitations as an affirmative defense. Next, the appellate court went on to address whether the Defendant should be entitled to coram nobis relief. In affirming the trial court’s denial of coram nobis relief, the appellate court noted that, “regardless of what the memo suggests, testing performed by Cellular and Molecular Forensics Laboratory did not, in fact, determine[ ] that there was no match between the defendant and the victim.”  The appellate court concluded that, when “examined within the context of the record as a whole, the information contained in the memo does not qualify as newly discovered evidence.”

The Defendant filed a petition for writ of certiorari, contending that he was entitled to coram nobis relief because Exhibit D to his petition showed that the State withheld exculpatory evidence at his trial in violation of his constitutional right of due process under Brady v. Maryland.  It was not until after the Court granted permission to appeal that the Defendant was appointed counsel.

Ultimately, the Court held that the statute of limitations set forth in Tenn. Code Ann. § 27-7-103 is not an affirmative defense that must be specifically raised by the State in error coram nobis cases. Instead, the coram nobis petition must show on its face that it is timely filed, or in the alternative, that the petitioner is entitled to equitable tolling of the statute of limitations.

The writ of error coram nobis is codified in Tenn. Code Ann. § 40-26-105 and provides a form of relief available to a convicted criminal defendants. The Tennessee Supreme Court has described it as “an extraordinary remedy known more for its denial than its approval.” The decision to grant or deny a petition for writ of error coram nobis is within the trial court’s discretion. The one-year coram nobis statute of limitations begins to run, thirty days after entry of the judgment in the trial court if no post-trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion. And as a result, in most instances, to be timely, a petition for writ of error coram nobis generally will be filed during the pendency of an appeal as of right. Nevertheless, the statute of limitations may be tolled on due process grounds if a petition seeks relief based upon newly discovered evidence of actual innocence.  The Tennessee Supreme Court has stated that “[i]n determining whether tolling of the statute is proper, the court is required to balance the petitioner’s interest in having a hearing with the interest of the State in preventing a claim that is stale and groundless.”

Because the Sixth Amendment right to counsel ends at the first appeal of right, writ of corm nobis petitioners seeking to argue that the statute of limitation should be tolled on due process grounds will either have to hire their own counsel to draft such arguments, or if they cannot afford counsel, attempt to draft such arguments without counsel.  To afford indigent petitioners with a fair opportunity to obtain coram nobis relief, Tenn. Code Ann. § 40-14-204 provides that “[i]n all proceedings for the writ of habeas corpus or the writ of error coram nobis, the court having jurisdiction of those matters shall determine the question of indigency and appoint counsel, if necessary, in the manner set out . . . ” Nevertheless, the defendant in Nunley was not appointed counsel until after the Court granted certiorari.

The Court’s decision in Nunley ultimately makes it more difficult for indigent criminal defendants to obtain relief upon filing a petition for coram nobis because it places the burden on the petitioner to show that he or she is entitled to equitable tolling of the statute of limitations. Without access to counsel and without any legal training, indigent defendants face a significant hurdle in obtaining coram nobis relief once the one-year statute of limitations has passed.

 

 

State of Tennessee v. Angela Faye Daniel ­­

No. M2015-01073-SC-R11-CD

Attorney Contributor: Erin Coleman

Criminal Law Journal Member: Madaleine Gray

Full Article PDF: State of Tennessee v. Angela Faye Daniel

This case began on June 6, 2014 when Officer Megan Valentine, of the Franklin Police Department, stopped Ms. Angela Daniel, the defendant for suspected driving under the influence. At the time of the incident, the Defendant refused to participate in any field sobriety tests and blood alcohol testing. Consequently, Officer Valentine obtained a search warrant for a blood draw. That same day, Defendant was transported to the Williamson County Medical Center, where she had her blood drawn.  At no point during the blood draw did Officer Valentine leave a copy of the search warrant with the Defendant.

The Defendant filed a motion to suppress the blood draw evidence due to Officer Valentine’s failure to abide by Tennessee Criminal Procedure Rule 41(g)(6). Rule 41 states:

A person aggrieved by an unlawful or invalid search or seizure may move the court pursuant to Rule 12(b) suppress any evidence obtained in the unlawful search and seizure.  If property was unlawfully seized, the aggrieved person may move for the return of the property.  The motion shall be granted– except as to the return of contraband- if the evidence in support of the motion shows that …

(6) the serving officer- where possible- did not leave a copy of the warrant with the person or persons on whom the search warrant was served.

At the suppression hearing, Officer Valentine testified it was her normal protocol to leave search warrants with defendants. However, she was unable to recall whether she left one with the Defendant on June 6, 2014. The Defendant was adamant throughout her testimony that she never received a copy of the search warrant on that day.

After the hearing, the General Sessions Judge granted the motion to suppress finding that Officer Valentine’s failure to give the Defendant a copy of the search warrant was not a clerical error as defined by the Exclusionary Rule Reform Act (ERRA). Thus, no exception applied to Rule 41 and the evidence had to be suppressed under the rule.  This decision was upheld by the Tennessee Court of Criminal Appeals. The State appealed to the Supreme Court of Tennessee to ask the specific question as to whether “Rule 41 requires suppression of the evidence at issue under the facts and circumstances presented and, if so, whether the ERRA applies to countermand Rule 41’s exclusionary rule.”

The Supreme Court of Tennessee reversed the Tennessee Court of Criminal Appeals judgment and remanded the case to the trial court. The Court’s holding was dependent on the recent creation of narrow good-faith exceptions to Rule 41’s exclusionary rule–particularly the Court’s decision in State v. Reynolds–where the deviations from the Rule’s requirements are inadvertent, inconsequential, and clearly resulted in no prejudice to the defendant.

The Tennessee Supreme Court’s holding in State v. Daniel misconstrues Tennessee’s exclusionary rule’s purpose and, as a result, promotes a vague and exploitable two-prong test, contradicts the language of Rule 41 of the Tennessee Rules of Criminal Procedure, and slights previous case law interpreting the Rule.

The Daniel Court devised its reasoning in reliance with the analysis articulated in State v. Lowe. The Lowes Court discussed State v. Reynolds­ and its anomalous ruling. In Reynolds, the Tennessee Supreme Court assessed the good-faith exceptions accepted by the United States Supreme Court, beginning with United States v. Leon, because Tennessee’s relevant constitutional provision echoes the text of the Fourth Amendment. After scrutinizing the ensuing applications of the good-faith exception, the Reynolds Court permitted the introduction of evidence obtained when law enforcement officers acted in an objectively reasonable good-faith reliance on “binding appellate precedent that specifically authorized a particular police practice” and stipulated that Rule 41 does not supersede applicable substantive law on the exclusionary rule and its exceptions.

The Court in Daniel also relied on State v. Davidson, which stated that a search warrant must comply with provisions of the United States Constitution, the Tennessee Constitution, and Tennessee’s statutory requirements. The Davidson Court discussed issuance of a warrant by a “neutral and detached magistrate” and held that the issuing judge’s failure to notice an unsigned affidavit does not indicate that a departure from the role of “neutral and detached” magistrate. Davidson’s “neutral and detached” language pertains to the necessity–and allure–of “severance and disengagement” from law enforcement activities to ensure fairness and preserve judicial veracity. This notion is noteworthy in analyzing the holding in Daniel, which shifts the burden to the State to establish, by a preponderance of evidence, that: (1) the technical noncompliance was the result of a good-faith error; and (2) the error did not result in any prejudice to the defendant.

Daniel erroneously relied on Davidson for comparative purposes when, in actuality, the two cases’ distinctions are significantly more probative. While the Davidson Court held that a good-faith error by a judge does not hinder his ability to function as a disinterested party to law enforcement objectives, Daniel deals with the procedural inconsistencies of a law enforcement officer with an interest in obtaining evidence in a suspected driving under the influence case. Unlike disinterested judges, law enforcement officers are interested parties and cannot be severed from their employment objectives. The “prejudice” language in Daniel is vague and unfeasible given the immersive nature of law enforcement positions. While Courts consider the exclusionary rule “a judicially-created remedy” and support the good-faith exception on the belief that “the criminal is not to go free because the magistrate has blundered,” inconsistencies within the discretion of law enforcement officers could severely disrupt fairness and promote negligence. Exposing defendants to procedural inconsistencies creates another variable–or barrier–that may have a large impact on the overall course of proceedings for defendants. Additionally, the good-faith exception impedes judicial integrity by epitomizing a nearly farcical overstatement of deference to law enforcement officers in evidentiary proceedings.

Further, the Court in Davidson refrained from condemning a judge who failed to rectify an error within an excess of documents requiring attention. The task of sufficiently preparing, signing, and delivering an affidavit is within the job responsibilities of police officers and should be afforded the officer’s full attention during preparation. The Daniel test snubs the public’s belief that government entities follow routine procedural standards to promote uniformity. The holding goes further to drastically reduce the responsibility of observing the procedural requirements articulated in Rule 41, diminishing the Rule’s efficacy. Standardized practices in criminal proceedings should be respected; procedures that establish routine and equality embody the principles of Due Process and Equal Protection. The holding in Daniel not only substantiates, but sanctions imprudent practices by law enforcement officers by curtailing the application of remedial provisions that penalize negligent errors.

The Davidson Court substantiates its Rule 41 holding with policy reasoning that rationalizes circumventing the compulsory suppression because “societal interests are not advanced when the exclusionary rule applies to exclude evidence obtained from execution of the warrant.” Conversely, Tennessee residents have an interest in maintaining the heightened protections afforded by the strict compliance requirements and suppression remedy codified in Rule 41. Societal interests are arguably more vulnerable if the good-faith exception becomes an unconstrained instrument for manipulation and abuse by law enforcement officials who seek to use the irremediable grant of police power as a scapegoat to achieve their ulterior motives–attainable with an unfettered means to encroach on individual privacy rights and resulting in citizen distrust of law enforcement.

The precedent examined in both Lowes and Reynolds, which the Court in Daniel relies on, depicts an expansion of the good-faith exception and an unsolicited and daunting deviation from long withstanding case law. With the existence of several commonly recognized exceptions to the warrant requirement–such as the plain view doctrine, consent, and the existence of exigent circumstances–the importance of shielding citizen’s privacy rights considerably outweighs the trivial successes of law enforcement allowed by a good-faith exception–correcting errors that were only created through employee negligence. In Daniel, the Court should have looked to the exigent circumstances exception before haphazardly expanding the good-faith exception.

The holding articulated in State v. Daniel unnecessarily expands the good-faith exception and circumvents the purpose and language of Rule 41 of the Tennessee Rules of Criminal Procedure. The ambiguous language of the holding creates an instrument for inconsistency and potential abuse and goes further to eradicate law enforcement’s recordkeeping responsibilities. The Court in Daniels concludes that societal interests are not furthered by suppressing evidence that was obtained lawfully notwithstanding a law enforcement officers “good-faith error.” However, the Court fails to give sufficient weight to societal interests in the greater protections that are available to Tennessee citizens under the unique mandatory suppression provision in Rule 41 of the Tennessee Rules of Criminal Procedure. The Court in Daniel relied on erratic precedent that departed from almost a century of practice. Given the rapid expansion of exceptions to the exclusionary rule evidenced in the analysis in Reynolds, it is in the best interest of citizens’ rights to avoid additional and unnecessary expansion of the good-faith exception. The holding in Daniel further expands the application of good-faith exception, which inevitably will result in the erosion of the individual liberties afforded by the Tennessee Constitution and the Fourth Amendment of the Constitution.

State of Tennessee v. Janet M. Stanfield, et al.

No. W2015-02503-SC-R11-CD

Attorney: Jessica Jackson

Criminal Law Journal Member:  Marabeth Kennedy

Full Article PDF: State of Tennessee v. Janet Michelle Stanfield, et al.

The Tennessee Supreme Court recently examined the nuances of the Fourth Amendment with respect to the expectations of privacy of a parolee, a probationer, and a private citizen in the same household during a parole search. The case revolved around defendant Tony Winsett, who lived in a house with defendant Janet Stanfield and her adult son, defendant Justin Stanfield. At the time, defendant Winsett was on parole and defendant Janet Stanfield was on Community Corrections, a form of probation. Justin Stanfield was not subject to any form of supervised release. Acting on a tip from a confidential informant, law enforcement officers went to the residence to conduct a warrantless parole search at the residence. When officers arrived, they saw a burn pile outside the residence containing what they suspected was marijuana residue. No one answered when officers knocked on the door. Officers observed security cameras outside the residence and heard a “running noise” coming from inside the residence. The noise sounded like someone was inside the residence destroying evidence.

Officers entered the residence with a pocketknife. Once inside, they were greeted by a large dog and the odor of marijuana. No people were present. The doors were open to all three of the bedrooms inside the residence. Officers determined that one of the rooms was uninhabitable, one was shared by defendants Winsett and Janet Stanfield, and one belonged to defendant Justin Stanfield. Officers seized a gun, ammunition, clear plastic bags, a set of digital scales, a marijuana pipe, and methamphetamine from the room belonging to defendants Winsett and Janet Stanfield. In defendant Justin Stanfield’s room, officers found marijuana, a handgun, and ammunition. Officers saw defendant Justin Stanfield’s car drive past the residence on the security camera footage that was displayed on the television monitor in one of the bedrooms. A traffic stop was initiated. Defendant Justin Stanfield was read his Miranda rights and placed in custody. He consented to a search of his phone. He also admitted to officers that he sold marijuana, that he received a text during the stop about the purchase of marijuana, and that he would complete the sale.

Shortly thereafter, defendants Winsett and Janet Stanfield were located in a vehicle and stopped by one of the officers. They were placed in custody and read their Miranda rights. During a search of their vehicle, officers seized more than $200 and four alprazolam pills from defendant Janet Stanfield’s purse. Prior to trial, the trial court granted a motion to suppress, dismissing the indictments as to all three defendants. The Court of Criminal Appeals affirmed. The Tennessee Supreme Court granted permission to appeal.

The Tennessee Supreme Court, partially reversing the Court of Criminal Appeals held that: (1) a warrantless search of a parolee’s residence is constitutionally reasonable as long as the totality of the circumstances indicate a valid law enforcement concern for the search; (2) the doctrine of common authority extends the scope of parole searches to areas of a residence over which a parolee has common authority; and (3) doctrine of common authority limits the scope of a parole search of an area within a residence held exclusively by an individual with no conditional release status. As a result, the Tennessee Supreme Court reversed the grant of the motion to suppress with respect to defendants Winsett and Janet Stanfield and affirmed the grant of the motion to suppress and resulting dismissal of the indictment with respect to defendant Justin Stanfield.

In its analysis, the court briefly reviewed the law with respect to Fourth Amendment protection against unreasonable search and seizure before turning to the resolution of the individual issues on appeal with respect to the validity of the warrantless searches.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches and seizures. Tennessee’s constitutional protections regarding searches and seizures are identical in intent and purpose to those in the federal constitution. In evaluating the constitutionality of warrantless searches, the court “evaluate[s] the search or seizure under traditional standards of reasonableness” by balancing an individual’s privacy interests against legitimate governmental interests. Of course, “a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement. The burden is place on the State to show by a preponderance of the evidence, that a warrantless search passes constitutional muster.

In Stanfield, the court examined the validity of the warrantless search of defendant Winsett, the parolee, because it served as the basis for the police presence at the residence.  As a starting point in the analysis, the court noted the parties’ reliance on Turner and Samson. In particular, the State asked the court to provide guidance as to what constituted a legitimate law enforcement concern in the context of a warrantless search of a parolee.  Defendants argued that the search was constitutionally unreasonable, and that the totality of the circumstances did not give rise to reasonable suspicion to support the search.

In Turner, the Tennessee Supreme Court formally determined that a parolee could be “searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers.” The decision in Turner was based in part on the State’s “interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”

With that backdrop in mind, the court reviewed the Parole Certificate signed by defendant Winsett. The document indicated defendant Winsett’s agreement to “a search, without a warrant, of [his] person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time without reasonable suspicion.” Applying Turner to the facts in Stanfield, the court determined that the warrantless search was “constitutionally reasonable” based merely on defendant Winsett’s status as a parolee. In other words, the State did not have to prove reasonable suspicion or probable cause to justify the search. Despite the determination that the warrantless search in defendant Winsett’s case was constitutionally reasonable based merely on defendant Winsett’s release status, the court noted that a warrantless search could be deemed unreasonable if “conducted for reasons other than valid law enforcement concerns.” In order to protect against unreasonable searches, the court examined the totality of the circumstances as an additional “safeguard.” The court, while refusing to place parameters on the definition of a “legitimate law enforcement concern” for a search, noted that the drug activity suspected in defendant Winsett’s case was a valid law enforcement concern.  The court also pointed out that the search did not seek to cause harm, was not predicated on personal animosity, and was not part of a pattern of repetitive searches conducted while the parolee was at work or asleep.

Next, the court reviewed the warrantless search of defendant Janet Stanfield’s possessions located in a bedroom shared with a parolee. The court recognized that defendant Janet Stanfield was on a form of probation, specifically Community Corrections, but based the efficacy of the search of her possessions on the application of the doctrine of common authority rather than a determination of whether the conditions of Community Corrections would have supported a suspicionless, warrantless search of her residence and/or bedroom. Common authority can be shown by “mutual use of the property by persons generally having joint access or control” where the relationship of the people make it such that any one of them “has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” For the first time in Tennessee, the doctrine of common authority was applied “to parole searches of areas of a residence over which a parolee has common authority.” The court found it was the State’s burden to prove the doctrine of common authority applied to the factual scenario, concluding that the proof showed there was no “question” to the officers that defendants Winsett and Janet Stanfield shared a bedroom, thus “law enforcement officers did not err in searching and seizing all items of contraband found in the shared bedroom.” As a result, the court reversed the grant of the motion to suppress with respect to defendant Janet Stanfield, both as to items found in the search of the bedroom and the subsequent search of defendant Janet Stanfield’s person during the automobile stop.

Lastly, the court determined, as a matter of first impression, that the doctrine of common authority did not extend to validate a search of the bedroom of an “individual who is unencumbered by a conditional release status but who resides with an individual subject to such restrictions.” In other words, the court limited the doctrine of common authority.

In this case, the door to defendant Justin Stanfield’s the room was open. There was no evidence that any possessions belonging to defendants Winsett or Janet Stanfield were found in the room. While the police were aware that defendant Justin Stanfield lived at the house, there was no evidence that he was aware of the search conditions related to the parole or probationary status of defendants Winsett and Janet Stanfield or that he was aware that their status or those conditions could impact his constitutional protections. The court, balancing the individual privacy rights against the government interests, recognized that an individual cannot be expected to completely give up privacy expectations in their own bedroom as a result of living with a parolee or probationer, thus limiting common authority.  In other words, the court determined that common authority did not extend to areas under the nonparolee’s exclusive control simply because of proximity to a parolee who has relinquished certain rights as a result of their conditional release status. The court acknowledged and suggested that officers could have and likely should have secured a warrant based on probable cause after smelling marijuana when they entered the house. Because there was no warrant and common authority did not validate the search of defendant Justin Stanfield’s bedroom, the court determined that the evidence was properly suppressed as to defendant Justin Stanfield.

Justice Sharon G. Lee, dissenting in part and concurring in part, expressed disagreement with the majority’s determination that parolee status subjected both defendants Winsett and Janet Stanfield to a warrantless and suspicionless search. In her view, the Tennessee Constitution requires the police to establish reasonable suspicion prior to searching a parolee without a warrant and the facts of the case did not support a finding a reasonable suspicion. The dissent specifically noted the importance of the fact that defendant Winsett did not “voluntarily” agree to give up his constitutional rights but that he was required to sign the parole agreement as a condition of parole. While her opinion is understandable and, certainly arguable, it misses the mark. Defendant Winsett, a convicted felon, was granted parole−something that the court has pointed out is a privilege, not a right. The distinction between a privilege and a right is important, and helps to shape the parameters of government control over an individual on parole status. Justice Lee concluded that because reasonable suspicion had to exist prior to the forcible entry into the home, and the confidential informant’s information about illegal activity at the home was not corroborated prior to the search of the curtilage of the home, the search was illegal. Thus, Justice Lee agreed with the court’s conclusion as to defendant Justin Stanfield, albeit for different reasons.

While at first glance the factual scenario built around a parolee, a probationer, and a regular citizen living together in a residence sounds like the beginning of a well-crafted joke or an idyllic bar exam question, it actually provides the backdrop for the state’s most recent case on the seemingly ever-evolving law of warrantless searches under the Fourth Amendment. While the majority of those citizens most likely lack an unwavering familiarity with all of the amendments encapsulated within the Bill of Rights, the Fourth Amendment is commonly referenced in every day parlance. Even though the Tennessee Supreme Court’s ultimate conclusion is not necessarily a surprising one, it should be noted that the opinion blatantly leaves several hypothetical scenarios unanswered. For example, the Court noted that the outcome of the case could have been different if someone had been home at the time of the search. Additionally, the court refused to consider whether a parole search is “akin” to a consent search or whether the conditions of Community Corrections (the specific type of probationary sentencing applicable to defendant Janet Stanfield) would support a suspicionless, warrantless search of a residence. Perhaps the court is anticipating a case by case approach to this area of search and seizure or, more likely, the court is anticipating that a case or cases more on point with one of those factual scenarios will be presented to the court. To that end, it should be noted that less than a week prior to the release of Stanfield, the Court granted permission to appeal in a case involving a “probation search” of a residence shared by a probationer and a regular citizen. In that case State v. Angela Carrie Payton Hamm and David Lee Hamm, the Court of Criminal Appeals determined that the initial search was not supported by reasonable suspicion and, as a result, declined to address whether the probationer consented to a search of her home as condition of her probation and/or the resulting effect of the application of the doctrine common authority to the validity of the search.  Perhaps some of those unanswered questions in Stanfield will be addressed by the Court in this appeal−stay tuned−this area of the law will certainly continue to develop in the near future.

 

State of Tennessee v. Lajuan Harbison

No. E2015-00700-SC-R11-CD

Attorney: Russell Thomas

Criminal Law Journal Member:  Nickolas Schulenberg

Full Article PDF: State of Tennessee v. Lajuan Harbison

LaJuan Harbison, the defendant, was indicted by a Knox County grand jury on four counts of attempted first-degree murder and four counts of employing a firearm during the commission of a dangerous felony. These charges arose out of a shooting incident near the Austin-East high school in Knoxville.  In the same indictment, the grand jury charged Arterious North with four counts of attempted first-degree murder and four counts of employing a firearm during the commission of a dangerous felony, and Laquinton Brown and Carlos Campbell with three counts of attempted first-degree murder, three counts of employing a firearm during the commission of a dangerous felony, two counts of attempted especially aggravated robbery, and two counts of attempted aggravated robbery.   On Sept. 7, 2012, around 4:30 p.m., the Defendant was driving toward Austin-East high school when he noticed another car had pulled over and its occupants were accosting a group of students standing on the side walk.  Campbell was driving the car, Brown was a front-seat passenger, with two others in the back seat of the car.  Brown stepped out of the car to approach the students and asked which one of them “had thrown up a gang sign (using a hand gesture).” With the butt of his hand gun showing, Brown ordered the students to empty their pockets.

Witnesses, including an Austin-East high school teacher driving a car, her daughter riding as a passenger, and a Knoxville Area Transit bus driver, testified that they thought the occupants of the Campbell car were robbing the students, who raised their hands and emptied their pockets.  The Defendant stopped his car, and he and North fired hand guns at the Campbell car.  Brown pulled out a gun from Campbell’s car, and along with passengers in that car, returned fire.  After a brief exchange of gun fire, the occupants reentered their respective cars and sped away.  During the altercation, a gun fired by a passenger in the Defendant’s car seriously wounded one of the by-stander students.

The trial court granted Campbell’s and Brown’s motions for acquittal on one charge of attempted especially aggravated robbery of minor L.P. (by violence) and one charge of attempted aggravated robbery of minor Q.T. (by violence). The trial court partially granted Campbell’s and Brown’s motions for acquittal on one charge of attempted especially aggravated robbery of L.P. (by putting in fear) and one charge of attempted aggravated robbery of Q.T. (by violence) and reduced the charges to two counts of aggravated assault. The basis for the trial court’s action was the lack of proof that Brown intended to take anything from L.P. or Q.T.

A jury convicted the Defendant of four counts of attempted voluntary manslaughter and four counts of employing a firearm during the commission of a dangerous felony.  The Court of Criminal Appeals reversed the convictions and remanded for a new trial, holding that the trial court erred in denying the Defendant’s request for a separate trial, stating that his multiple convictions for employing a firearm during the commission of a dangerous felony violated the prohibition against double jeopardy, and that the evidence was insufficient to support one of the counts of attempted voluntary manslaughter and employment of a firearm during the commission of a dangerous felony.

The Tennessee Supreme Court granted the State’s application for permission to appeal to determine (1) whether the trial court properly exercised its discretion by denying the Defendant’s motion for severance; (2) whether the Defendant waived the double jeopardy issue; and if not, (3) whether the Defendant’s convictions for employing a firearm during the commission of a dangerous felony violate the prohibition against double jeopardy when he used one firearm but was convicted of multiple dangerous felonies against different victims.

The Defendant, who was only aged 18 at the time of the offense, previously attended Austin-East high school and personally knew minors Q.T. and L.P.  Just before the shooting started, the Defendant stopped his vehicle near Austin-East High School after seeing an approaching school bus in the opposite lane extend its stop sign. When the Defendant saw L.P. and Q.T. hold up their hands, the Defendant believed Brown was robbing them. As Brown stepped back towards Campbell’s vehicle, the Defendant saw Brown draw a handgun and fire a shot. The Defendant pulled his gun and fired it twice into the air. The Defendant claimed he fired his gun only to protect L.P. and Q.T. and to prevent Brown from robbing them. He said he did not intend to harm anyone. After the Defendant fired into the air, he heard “shots coming up out of – from everywhere.” The Defendant, North, and other passengers began firing their weapons. As the Defendant drove away, he continued to hear gunfire coming from behind him.

The Defendant argued that the trial court should have granted a severance because of the overt hostility between him and two of his co-defendants and courtroom spectators, the mutually antagonistic defenses, and his inability to present his defense.  Second, the Defendant argued that the trial court’s denial of a severance resulted in the admission of “lurid testimony and videos about guns, unindicted bad actors, and other crimes unrelated to the Defendant and irrelevant to his charges.” Further, the Defendant argued that a severance was necessary to avoid prejudice from evidence that would not have been admitted had the Defendant’s trial been severed from his co-defendants.

The Tennessee Supreme Court held that the trial court did not abuse its discretion in denying the Defendant’s request for a separate trial.  In Tennessee, two or more defendants may be charged in a single indictment when conspiracy is not charged and all of the defendants are not charged in each count, if the offenses charged were part of a common scheme or plan or were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others. A defendant may seek a severance under Tenn. R. Crim. P. 14(c)(2), which requires a trial court to grant the request if severance is found to be appropriate to promote a fair determination of guilt or innocence of one or more defendants.

When two or more defendants are charged in the same indictment, evidence that is not necessarily applicable to another defendant may be admissible against one or more defendants. A defendant is not entitled to a separate trial merely because damaging proof is introduced against another defendant.  Hostility between defendants, attempt to cast blame on each other, finger-pointing, and tattling do not necessarily require a severance. Potential hostility among codefendants exists when an indictment charges each co-defendant as a perpetrator of offenses against other codefendants. Mutually antagonistic defenses among codefendants may be the basis for granting a severance in some circumstances but are not per se prejudicial.  A severance should not be granted simply because there is a disparity in the evidence against the defendants, or a speculative risk of a spill-over effect from a codefendant’s prior bad acts.

The court also addressed whether the Defendant preserved a challenge based on double jeopardy to his multiple convictions for employing a firearm during the commission of a dangerous felony by raising the issue in the trial court and the Court of Criminal Appeals. The State argued that the Defendant waived any challenge by not raising the issue in his motion for new trial and appellate brief.

In deciding whether a party has waived an issue on appeal, an appellate court should carefully review the record to determine whether a party is raising an issue for the first time on appeal.  A party does not waive an issue by phrasing it differently in the trial court than on appeal.  The phrase, unit of prosecution, is uniquely associated with claims of error based on double jeopardy.  Tennessee recognizes two types of single prosecution, multiple punishment claims: multiple description claims and unit-of-prosecution claims. A multiple description claim is one in which a defendant convicted of multiple criminal offenses under different statutes alleges that the convictions result in double jeopardy because the statutes punish the same offense. A unit-of-prosecution claim arises when a defendant convicted of multiple violations of the same statute asserts that the multiple convictions are for the same offense.

At trial, the Defendant filed a motion for a new trial and two amended motions.  The Supreme Court interpreted the Defendant’s argument to mean that the Defendant was claiming that he was overcharged and convicted of multiple violations of Tenn. Code Ann. § 39-17-1324 based on a single act of employing one firearm.  Although not well-stated, the disputed issue was whether the proper unit of prosecution was the act of employing the firearm or the act of committing the underlying dangerous felony. The Defendant focused on his use of a single weapon, while the State emphasized the multiple underlying dangerous felonies. Whether the Defendant waived the issue of double jeopardy was a close question given his failure to use the phrase “double jeopardy” or “unit of prosecution” in the trial court.  The Court held the Defendant had not waived the issue of double jeopardy on appeal.

Tenn. Code Ann. § 39-17-1324(b) makes it a criminal offense to employ a firearm during the: (1) commission of a dangerous felony; or (2) attempt to commit a dangerous felony.  A “dangerous felony” is defined to include numerous offenses, including attempt to commit first-degree murder and attempt to commit voluntary manslaughter.  A violation of § 39-17-1324(b) is a specific and separate offense, which shall be pleaded in a separate count of an indictment or presentment and tried before the same jury and at the same time as the dangerous felony. Any sentence imposed for violation of § 39-17-1324(b) must be served consecutive to any other sentence imposed for the conviction of the underlying dangerous felony.

The Tennessee Legislature intended the unit of prosecution for Tenn. Code Ann. § 39-17-1324 to be each act of employing a firearm during the commission of or attempt to commit a dangerous felony.  The Tennessee Supreme Court held that the Defendant’s multiple convictions for employment of a firearm during the commission of a dangerous felony do not violate the prohibition against double jeopardy.  The Supreme Court reversed the judgment of the Court of Criminal Appeals, reinstated the Defendant’s three convictions for attempted voluntary manslaughter and three convictions for employment of a firearm during the commission of a dangerous felony, and remanded the case back to the trial court for resentencing and corrected judgments.

The Court’s decision will make it more difficult for defendants to obtain separate trials even when evidence of one defendant’s crimes may be irrelevant to the charges against another defendant.  The Court also clarified that double jeopardy does not bar Tenn. Code Ann. § 39-17-1324 from applying to using a firearm in each instance of a dangerous felony, which in this case was four attempted voluntary manslaughters.

State of Tennessee v. Lindsey Brooke Lowe

No. M2014-00472-SC-R11-CD

Attorney: Jennifer Hartsell Stockdale

Criminal Law Journal Member:  Lovin Middleton-Dunn

Full Article PDF: State of Tennessee v. Lindsey Brooke Lowe

On September 12, 2011, the Defendant, Lindsey Lowe, gave birth to twin boys. She had concealed her pregnancy from her family and fiancé and gave birth to the twins, unassisted, in her bathroom. After the births, she placed her hand over each infant’s mouth to stifle his cries and smothered each infant to death. She hid both bodies in her laundry basket. Lowe called in sick to work on the following day but reported to work as usual on September 14. After the Defendant left for work, her mother discovered one of the bodies in the laundry basket. Lowe’s father contacted police, who came to the residence and determined that the infant was dead.

After Mr. Lowe reportedly consented to police searching the house, Detective David Harrell was instructed to obtain a search warrant. He prepared the necessary paperwork, including three copies of the proposed warrant, and went before Judge C.J. Rogers at the Circuit Court in Sumner County. Judge Rogers signed and issued three copies of the search warrant at 11:35 AM. Two copies of the search warrant stated that the date and time at which the warrant was delivered was “11:35 o’clock AM, on this 14 day of Sept, 2011,” but the third copy stated that the time of delivery was “11:35 o’clock PM, on this 13 day Sept, 2011.” At 12:34 PM, after obtaining the warrant, police began searching the Lowe residence. They collected a laundry basket and its contents, bloody linens and clothing, a thumb drive from the Defendant’s bedroom, and several computers and computer components. They also took photographs and conducted testing for the presence of blood in the Defendant’s bedroom and bathroom. Once the search was complete, Detective Harrell left one of the copies of the warrant marked “AM” on the kitchen counter. The copy containing the “PM” notation was returned and filed with the trial court on September 21, 2011.

While Detective Harrell obtained a warrant to search the Defendant’s home, Detective Malach traveled to the Defendant’s place of employment. He testified that the Defendant was in a good mood when he first arrived and stated she did not know why he was there. After telling her that police found the laundry basket, her mood became more serious. He explained that he wanted her cooperation in ascertaining what happened and for her to come to the police station with him, but it was her choice whether to do so. He “went over” her Miranda rights at this time and stated that, if she chose to go with him, he would formally provide her Miranda rights at the station. The Defendant agreed to accompany Detective Malach to the station. During the ride, she was not handcuffed and rode in the front passenger seat of his patrol car. They talked about “normal” things during the drive, not discussing any matters related to the dead infant. When they arrived at the station, Detective Malach asked the Defendant to wait on a bench in the hallway. She remained on the bench for thirty minutes, unrestrained and unaccompanied, with her purse and cell phone. Detective Malach videotaped his ensuing interview of the Defendant. He read the Defendant her Miranda rights, which she orally waived. She asked if she should have an attorney and, after being told that it was not mandatory, she agreed to proceed with the interview without an attorney present. The Defendant confessed to smothering the two infants, placing their bodies in a laundry basket, and cleaning up the bathroom before her sister used it.

Prior to trial, the Defendant moved to suppress the evidence obtained pursuant to the search warrant as well as her statement to Detective Malach. After holding evidentiary hearings, the trial court denied both motions. The jury subsequently convicted the Defendant on all counts, and the trial court sentenced her to two terms of life imprisonment and two terms of twenty-five years. The Tennessee Court of Criminal Appeals affirmed the trial court’s judgment.

The Tennessee Supreme Court granted the Defendant’s application for permission to appeal to address the following issues: 1) whether the Exclusionary Rule Reform Act (the “ERRA”) violates the Tennessee Constitution; 2) whether the trial court erred by relying on the ERRA to deny the Defendant’s motion to suppress the evidence gathered at her house; 3) whether the trial court erred by ruling inadmissible certain expert testimony proffered by the Defense during the evidentiary hearings; 4) whether the trial court erred by denying the Defendant’s motion to suppress her statement; and 5) whether the trial court erred by prohibiting the Defendant’s expert witness from testifying at trial about the reliability of her responses to the Detective’s questions. Additionally, the Court directed the parties to address whether the good-faith exception to the exclusionary rule should be expanded to include clerical errors made by the issuing magistrate when the search at issue is otherwise constitutional.

The Court first considered whether the ERRA unconstitutionally violated the Tennessee Constitution’s Separation of Powers Clause. The Court found that the ERRA was not, as the State had urged, an attempt to “supplement” Tennessee Rule of Criminal Procedure 41; rather, the ERRA represented an “impermissible encroachment” by the legislature upon the Court’s authority and responsibility to adopt exceptions to the exclusionary rule. Because the ERRA specifically conflicted with the Court’s exclusionary rule holdings, as well as with the express language of Rule 41 promulgated by the Court, the Court held that the ERRA violated the Tennessee Constitution’s Separation of Powers Clause. The Court therefore concluded that the trial court erred when it denied the Defendant’s motion to suppress in reliance on the ERRA.

The Court next considered whether Tennessee courts should apply the exclusionary rule to suppress evidence gathered at the Lowe residence under a search warrant with technical defects not conforming to the requirements of Rule 41. After noting that the Court recently had adopted a good-faith exception to the exclusionary rule in a case where the law enforcement officer executed a warrant in good faith but the warrant later was determined to be invalid by a technical defect, the Court expanded the good-faith exception to the exclusionary rule to include clerical errors made by a magistrate issuing a search warrant when the search in question is otherwise constitutional. In applying the expanded good-faith exception, the Court held that evidence gathered at the Lowe residence pursuant to the search warrant should not have been suppressed pursuant to the exclusionary rule, despite technical defects in the search warrant; the defects were the result of a magistrate’s good faith error incorrectly indicating on one of three copies of the warrant that it was issued at 11:35 PM rather than 11:35 AM, and the search was otherwise constitutional.  The Court therefore affirmed, but on different grounds, the trial court’s denial of the Defendant’s motion to suppress the evidence gathered from the Lowe residence.

Regarding the other issues brought on appeal, the Court held that, although the trial court should have permitted defense counsel to proffer the testimony in a question and answer format, the court did not err when it ruled inadmissible the defense expert’s testimony at the hearing on the Defendant’s motion to suppress because the record contained “a sufficient summation of Dr. Auble’s expected testimony” that the Court could determine whether the ruling was appropriate. The Court also agreed with the lower courts that the Defendant was not in custody at the time she made her statement to Detective Malach so any alleged defects in the administration of her Miranda rights were moot, and the trial court did not commit reversible error in finding certain proffered expert testimony by a defense witness inadmissible on grounds that the foundation of the witness’s testimony turned on his unsubstantiated opinion about what Detective Malach was thinking during his interview of the Defendant.

 

A valid search warrant must comply with the United States Constitution, the Tennessee Constitution, and Tennessee statutory requirements. Under both the Tennessee and federal constitutions, when a search is declared to be illegal, the evidence obtained as a result of the search cannot be used by the State pursuant to the exclusionary rule. Tennessee Rule of Criminal Procedure 41, adopted in 1978, sets forth precise requirements for issuing a search warrant, including a requirement that the magistrate “shall endorse on the search warrant the hour, date, and name of the officer to whom the warrant was delivered for execution.” If a magistrate does not comply, Rule 41—as it existed at the time the search warrant was issued in Lowe’s case—directed a court to grant an aggrieved party’s motion to suppress the evidence seized as a result of the noncompliant warrant.

In United States v. Leon, the United States Supreme Court created a good-faith exception to the exclusionary rule. This exception permits the State to use evidence if it was seized in reasonable, good-faith reliance upon a search warrant subsequently found to be defective. Under the federal good-faith exception, judges have broad discretion to decide if police intentionally violated a suspect’s rights or acted in objective good faith believing they had taken all steps required for a valid warrant and acted within its scope.

For years, Tennessee courts refused to adopt the good-faith exception created by the United States Supreme Court in Leon, maintaining that Tennessee’s constitution affords its citizens greater search and seizure protection than does the United States Constitution. For example, in 2010, in State v. Hayes, the Tennessee Court of Criminal Appeals invalidated a search warrant that incorrectly indicated it was issued at 10:35 PM rather than at 10:35 AM, finding that the warrant failed to strictly comply with the search warrant requirement that the endorsed date and time of issuance be correct. The court’s decision was consistent with the court’s prior strict interpretation of Rule 41.

In 2011, the Tennessee legislature created a statutory good-faith exception that applied only in cases involving “clerical errors” or “clerical omissions.” Effective July 1, 2011, under the ERRA, evidence obtained by a search warrant would not be suppressed if the court determined the violation was a result of a good-faith mistake or a technical violation of the law made by a law enforcement officer, court official, or the issuing magistrate. The ERRA significantly weakened the protections afforded by the exclusionary rule in Tennessee.

In applying the ERRA in State v. Pruitt, Tennessee’s highest court allowed the introduction of evidence in a defendant’s murder trial that had been obtained based on search warrant containing two different dates in violation of Tennessee Rule of Criminal Procedure 41. The executing officer testified that the warrant was not executed until magistrate was finished issuing it, testimony the trial court found credible. The Tennessee Supreme Court agreed, describing the error as “a textbook example of unintentional clerical error made during the preparation of a search warrant.”

Five years later, the Tennessee Supreme Court signaled its willingness to consider a common law good-faith exception to the exclusionary rule in State v. Reynolds, where police took a warrantless blood draw without the defendant’s consent following an accident that resulted in two fatalities and injuries to defendant and the other passenger. While agreeing with the lower courts that the warrantless blood draw violated the Fourth Amendment and Tennessee Constitution’s prohibition against unreasonable search and seizure, the Supreme Court adopted a narrow good-faith exception to the exclusionary rule, preventing exclusion of evidence obtained in violation of a suspect’s constitutional rights when law enforcement officers act “in objectively reasonable good-faith reliance” on binding appellate precedent that specifically authorizes a particular police practice which is later overruled. Applying this newly adopted good-faith exception, the Court held that the Reynolds draw came within the exception because the deputy reasonably relied on binding precedent in effect at time of accident. Notable was the dissenting opinion of Justice Sharon G. Lee, writing that the adoption of the good-faith exception to the exclusionary rule “erodes our citizens’ rights to be free from unreasonable searches and seizures as guaranteed by the United States and Tennessee Constitutions.” Justice Lee further wrote: “Although the United States Supreme Court has adopted a good-faith exception, we have the authority to provide the citizens of our state with greater protections, and I submit we should do so in this case.”

Just over a month after Reynolds came the highly-publicized case of State v. Davidson, in which Davidson was sentenced to death for the brutal murders of Channon Christian and Christopher Newson in Knoxville, Tennessee. In Davidson, the lead investigator accidentally cut off his signature when faxing a search warrant affidavit for Davidson’s residence, and the magistrate did not notice the missing signature.  After the investigator took an oath and swore to the contents of the affidavit before the magistrate, the magistrate signed the warrant, which law enforcement officers then used to search Davidson’s house. There they discovered Christian’s body inside a trash can in Davidson’s kitchen.

Noting that neither the Fourth Amendment of the United States Constitution nor Article I, Section 7 of the Tennessee Constitution requires an affidavit, the Tennessee Supreme Court found that the warrant was valid under both the state and federal constitutions. The Court acknowledged, however, that the warrant violated the affidavit requirements of Tennessee Code Annotated §§ 40-6-103 and 40-6-104 and Tennessee Rule of Criminal Procedure 41(c)(1), which require an affidavit containing the signature of the affiant. Adopting and applying a common law good-faith exception to the exclusionary rule in cases where “an officer has complied with constitutional requirements to obtain a warrant, but in good faith failed to comply with the state statutory and rule affidavit requirements,[,]”  the Court, in an opinion authored by Justice Sharon G. Lee, found that the trial court had not erred in denying Davidson’s motion to suppress the evidence obtained from the search of his house. In a footnote, the Court noted that Justice Lee had dissented in Reynolds “on the basis that a good-faith exception was not appropriate to excuse a constitutional violation but agrees that Rule 41(g) cannot be read to divest this Court of its power to develop and adapt common law principles and their application.”

After Reynolds and Davidson, and with the composition of the Court shifting from a panel of predominantly Democratic appointees to one with a majority of Republican appointees, the Court seemed poised then, in Lowe, to embrace a wholesale good-faith exception. After determining in Lowe that the ERRA violated the Tennessee Constitution’s Separation of Powers clause, the Tennessee Supreme Court created a good-faith exception to the exclusionary rule where “a good-faith clerical error” of an issuing magistrate resulted in technical defects in the search warrant when the search is otherwise constitutional.  In applying that exception, the Court declined to suppress the evidence found at Lowe’s residence due to “an inconsequential variation between three copies of a search warrant required pursuant to Rule 41.” On the same day, the Court decided the Williamson County case of Angela Faye Daniel, who was not given a copy of the search warrant authorizing her blood to be drawn. Noting the Court’s “recent willingness to create narrow good-faith exceptions to Rule 41’s exclusionary rule where the deviations from that Rule’s stringent requirements are inadvertent, inconsequential, and clearly resulted in no prejudice to the defendant,” the Tennessee Supreme Court reversed the trial court’s decision to exclude evidence obtained from the blood sample, finding that a good-faith exception to the exclusionary rule applied, even though the defendant was not given a copy of the warrant as required by Rule 41. The Court noted that the officer’s failure to give the defendant a copy of the search warrant was due to an inadvertent oversight and the technical noncompliance did not prejudice Daniels.

In Lowe, the error arose during the preparation of the search warrant; in Daniels, the error arose after the warrant was issued. In Lowe, the error was the inadvertent clerical error of the issuing magistrate; in Daniels, the error was the inadvertent clerical error of the executing officer. In both cases, the Court found that the search was otherwise constitutional and the defendant was not prejudiced as a result of the technically noncompliant search warrant. The Court’s adoption of these good-faith exceptions to the exclusionary rule brings state common law more in line with the federal good-faith exception created in Leon.

Although the state’s highest court did not embrace a wholesale good-faith exception in Lowe, the Reynolds, Davidson, Lowe, and Daniels decisions taken together, all carving out good-faith exceptions to the exclusionary rule without relying on the ERRA, underscore the Court’s willingness to move in that direction. Notably, effective July 1, 2018, on the eve of the Lowe and Daniels decisions, the Tennessee Supreme Court amended Rule 41 to grant trial courts the discretion to determine whether to exclude evidence gathered pursuant to a search warrant that fails to comply with Rule 41.

After Lowe and the amendment to Rule 41, the Tennessee criminal defense bar likely is taking notice, as it appears that Tennesseans can no longer boast that their state constitution and statutory law provide greater protections for citizens to be free from unreasonable searches and seizures than those protections guaranteed by the United States Constitution.

State of Tennessee v. Kevin Patterson aka John O’Keefe Varner aka John O’Keefe Kitchen

No. M2015-02375-SC-R11-CD, 538 S.W.3d 431 (Nov. 30, 2017)

Attorney:  Liz Tipping

Criminal Law Journal Member:  Tim Sweatman

Full Article PFD: State of Tennessee v. Kevin Patterson

In July 2015, a jury found defendant John O’Keefe Varner guilty of attempted second-degree murder, aggravated assault, and felon in possession of a firearm. At the sentencing hearing in September 2015, the trial court sentenced Defendant to life in prison without the possibility of parole. The sole issue before the Tennessee Supreme Court was whether the State provided sufficient notice under the “three strikes law” that it intended to seek a sentence of life without parole.

The Defendant met the victims in early February 2013. The victims, Brandi Frazier and Scott Wilfong, had intervened after Defendant dragged his girlfriend from a vehicle by her hair and hit her. When Defendant turned on Ms. Frazier, Ms. Frazier struck him on the head with a bottle. Defendant and the two victims briefly argued before their exchange was over.

Not long after this first interaction, on February 9, 2013, the victims were meeting at an acquaintance’s house. Defendant arrived and insisted that he and Mr. Wilfong had “unfinished business.” Believing Defendant intended to fight, Mr. Wilfong went outside to confront him. Defendant had a gun and shot Mr. Wilfong in the hip. Mr. Wilfong escaped before Defendant could shoot him again.

At the sound of the gunshot, Ms. Frazier ran outside. Defendant aimed his gun at Ms. Frazier, but instead of shooting her, he hit her in the face. Defendant ran to his truck, got in, and drove away. He fled to Las Vegas after the shooting and was not arrested until a year and a half later.

After Defendant was arrested, on January 1, 2015, the State filed a document with the title: “Notice of Prior Convictions,” which gave Defendant notice of the convictions that it planned to use “to impeach the defendant’s testimony, and/or to enhance the defendant’s punishment.” The notice continued: “The State of Tennessee also hereby gives notice to the defendant of its intent to seek to have him declared as a Repeat Violent Offender pursuant to T.C.A. § 40-35-120.” It then listed a number of Defendant’s convictions dating back to 1985.

At trial in July 2015, the parties stipulated that Defendant had been convicted of a felony prior to February 2013, and that this conviction prohibited him from possessing a firearm. Defendant was convicted of attempted second-degree murder, aggravated assault, and being a felon in possession of a firearm.

The trial court conducted a sentencing hearing on September 23, 2015, at which the prosecution entered certified copies of judgments showing Defendant’s convictions of second-degree murder in 1994 and facilitation of second-degree murder in 1992. The trial court confirmed with defense counsel that the defense had no objection concerning the accuracy of Defendant’s prior criminal record. The trial court then ruled that it had “no choice” but to sentence Defendant to life in prison without the possibility of parole under the three strikes law set forth in Tenn. Code Ann. § 40-35-120.

Defendant appealed (without challenging his sentences), and the Court of Criminal Appeals affirmed the convictions. However, two judges of the Court of Criminal Appeals sua sponte found that the State’s notice of intent to sentence Defendant as a Repeat Violent Offender was inadequate because it (a) failed to sufficiently describe the nature of Defendant’s prior qualifying convictions, and (b) failed to list the dates of the separate periods of incarceration. As a result, the Court of Criminal Appeals found that “the document filed by the State did not qualify as notice pursuant to the repeat violent offender statute.” The Court of Criminal Appeals set aside the sentence of life in prison without possibility of parole and remanded for resentencing.

The Supreme Court explained that Tennessee’s criminal statutes provide for enhanced sentences when a defendant is a “multiple, persistent, career [or] repeat violent offender[].” When seeking to enhance a defendant’s sentence due to any of these classifications, the State must provide notice of its intent to do so. As the language of the statutory notice requirement for a “Repeat Violent Offender” (the classification applied to Defendant) is similar to the language for these other classifications, the Court looked to cases interpreting the notice requirement for the other classifications.

Quoting its 1990 opinion in State v. Adams, 788 S.W.2d 557, the Court explained that the purpose of the statutory notice requirement for multiple, persistent, or career offenders is to “provide[] defendants with fair notice of their exposure to enhanced sentencing, order[] plea-bargaining, enable[] defendants to make informed decisions before pleading guilty, aid[] defendants in developing trial strategy and preparing for sentencing hearings, and assist[] defendants in evaluating the risks and charting a course of action before trial.” In evaluating statutory notices, the Court has recognized that embedding information inside an unrelated document is problematic and has instructed that the preferred method is to file separate documents with proper captions.

When interpreting the statutory notice requirement for multiple, persistent, or career offenders, the Court has not required strict compliance. However, the Court has held that when a notice fails to provide any of the statutorily required relevant information, the notice is ineffective and cannot support imposition of an enhanced sentence. The State must substantially comply with the notice requirement, and then if there is ambiguity in the notice, the burden shifts to the defendant to seek additional information. The Court has declared that “fair notice” is required, not “perfect notice.”

Turning to the statutory language for the Repeat Violent Offender notice requirement, the Court explained that the State is required to “file a statement with the court … [that] shall set forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.” Failure to provide any notice at all precludes the State from seeking enhanced sentencing as a Repeat Violent Offender.

The Court applied the principles it found in the cases interpreting the sufficiency of State notice for multiple, persistent, or career offenders. The Court concluded that under the Repeat Violent Offender statute, the State must provide at least some notice of intent to seek enhanced sentencing prior to trial. The “better practice” is to provide notice by a separate, properly captioned document and not to include the notice in a document addressing several subjects. However, since the statute does not prescribe a particular form, the Court declined to mandate one.

The Court stated: “The form of the notice alone will almost never be a sufficient basis for precluding the State from seeking enhanced sentencing.” The notice need not be perfect, but it must be fair. If the notice substantially complies with the statute but leaves some question, “an accused has a duty to inquire about an ambiguous or incomplete notice and must show prejudice to obtain relief.”

The Court declined to adopt Defendant’s argument that the State must strictly comply with the statutory notice requirement. It found that the State had timely provided Defendant of notice of its intent to seek enhanced sentencing as a Repeat Violent Offender. Although the notice contained errors (and even omissions), the Court concluded that the State’s notice, “albeit imperfect, was sufficient to trigger the defendant’s duty to inquire into the omitted and incorrect information.” Defendant failed to make any such inquiry. Therefore, the Court reversed the decision of the Court of Criminal Appeals and reinstated the Repeat Violent Offender enhanced sentence.

The Court’s decision in Patterson clarifies both the State’s and the defendant’s duties under the Repeat Violent Offender statute. The Court expressly stated that it did not endorse the State’s failure to comply strictly with the notice requirement. At the same time, the Court found that the State’s notice was sufficient to trigger Defendant’s duty to inquire into the errors and omissions.

While it is valuable to have this clarification, the Court’s conclusion is not surprising. As described above, the Court in Patterson followed decisions by Tennessee’s appellate courts regarding the notice requirements of enhancement statutes. Additionally, other aspects of the Repeat Violent Offender statute suggest that the Legislature did not intend that the State’s notice obligations be strictly construed. For example, if the State’s notice is untimely, the statute provides that a defendant shall be granted a continuance, rather than dismissal of the Repeat Violent Offender enhancement. And the Legislature has stated more than once that one of the principles and purposes in sentencing under Title 40, Chapter 35, is to protect society and prevent crime by “restraining defendants with a lengthy history of criminal conduct.” Furthermore, the liberal construction of the State’s obligations under Tenn. Code Ann. § 40-35-120(i) is consistent with other states’ interpretations of their own “three strikes laws.”

The “three strikes laws” operate to lengthen sentences for recidivist defendants—those who have already demonstrated that a standard period of incarceration is ineffective for their rehabilitation. In Patterson, the Supreme Court joined many courts around the country that have concluded that as long as a defendant is provided “fair notice” that he is facing a possible enhanced sentence, the purpose of the notice requirement in these statutes is met. Thanks to Patterson, we know that a defendant can expect only “fair notice,” not “perfect notice,” under the Repeat Violent Offender statute.

 

 

 

State of Tennessee v. Sedrick Clayton

No. W2015-00158-SC-DDT-DD

Attorney: Amanda Gentry

Criminal Law Journal Member: Kendahl Shoemaker

Full Article PFD: State of Tennessee v. Sedrick Clayton

On the morning of January 19, 2012, around 12:40 a.m., Defendant, Sedrick Clayton, entered the home of former girlfriend, Pashea Fisher. According to Pashea’s brother, A. Fisher, who had been sleeping on the couch of the family’s living room, he could hear loud voices coming from the end of the hallway. The voices belonged to Pashea and Clayton. Their argument led to a “tussle in the hallway.” Pashea walked down the hall toward their parents’ bedroom, entered the bedroom and locked the door behind her. A. Fisher heard yelling followed by gunshots. Based on the evidence, including a wood splinter lodged in Pashea’s pants, Lieutenant Mullins, testifying as an expert in blood stain pattern, opined that at this point in the night, Pashea was first shot in the leg when Clayton began shooting through the bedroom door.   Clayton used his shoulder to break down the bedroom door and forced his way in.  The large pool of blood on the floor evidenced that the father was shot before the mother. The blood trail from the parents’ bed to the bedroom door evinced that the mother was first shot on the bed, and then again by the door. After the shooting of the parents, the Defendant Clayton dragged Pashea from the end of the hallway to the front of the house. He threatened to shoot her in the head, which he did before leaving the premises. Before leaving, however, Clayton fired his gun in the general direction of the sofa, knowing that Fisher usually slept there.

Later that morning, at approximately 7 a.m., Clayton contacted the police station to inform them that he was turning himself in and was willing to give a statement. Before the lieutenant could review the Advice of Rights with Clayton, Clayton began making a statement, beginning with an apology. The officers tried to interrupt Clayton to review the Advice of Rights, which they did completely. During his statement, Clayton never asked to stop the interview and never asked for an attorney. The jury ultimately found the defendant guilty of all counts in the indictment, which included three counts of first-degree murder and one count of attempted first-degree murder.

During the penalty phase, based on the evidence, the jury found two aggravating circumstances beyond a reasonable doubt for each of the three victims of first-degree murder: (1) Clayton “knowingly created a great risk of death to two or more persons, other than the victim murdered, and (2) Clayton committed mass murder. The jury sentenced Clayton to death for all three convictions of first-degree murder. The Tennessee Supreme Court held, affirming the Court of Criminal Appeals, that: (1) the evidence was sufficient to support the jury’s findings that Clayton acted with premeditation in commission of the offenses; (2) Clayton waived his Fourth Amendment challenge to the trial court’s denial of his motion to suppress his statements; and (3) each of the death sentences satisfies the mandatory statutory review pursuant to Tennessee Code Annotated § 39-13-206.

In the Court’s opinion, it addressed Clayton’s waiver of his Fourth Amendment claim that his statement to police during the interview should be suppressed. This Court has held that “where the record on a pretrial suppression motion . . . clearly presents an evidentiary question, and where the trial judge has clearly and definitively ruled,” trial counsel need not offer further objections to the trial court’s ruling. Here, the Court concluded that counsel’s failure to obtain a ruling with regard to Clayton’s Fourth Amendment argument after the suppression hearing and failure to renew this argument during the motion for a new trial resulted in waiving his claim of error.

The Court also addressed the mandatory review of a death sentence as administered in Tennessee under §39-13-206(a)(1). According to statute, the review of a death sentence includes analyzing whether (1) a death sentence was imposed in any arbitrary fashion; (2) the evidence supports a jury’s findings of statutory aggravating circumstances; (3) evidence supports a jury’s finding that aggravating circumstances outweighed any mitigating circumstances; and (4) a capital sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and a defendant.

In reviewing the fourth element, the standard of review in regard to the fourth element that the Court is required to review, the standard of review is set forth in a proportionality test in which the Court must determine whether it is excessive or disproportionate to a penalty imposed in similar cases; insofar as it is “disproportionate to the punishment imposed on others convicted of the same crime.” A death sentence is disproportionate if a case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.” Thus, in our proportionality review, the Court examines the facts and circumstances of a crime, a defendant’s characteristics, and any aggravating and mitigating circumstances involved. More specifically, the Court must consider: (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 condition, 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 upon non-decedent victims. In addition to those factors, the Court also considers several factors about the defendant, including his or her (1) record of prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role in a murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.

The Tennessee Supreme Court held this case was comparable to other convictions resulting in a death sentence. Moreover, Clayton’s lack of criminal history does not thwart the imposition of the death sentence. The Court similarly noted it has rejected pleas of relief based on alleged “cooperation” with law enforcement. The death sentence in this case was not disproportionate to the penalty imposed for the similar crimes under similar circumstances.

Lastly, taking the evidence in the light most favorable to the State, the rational trier of fact could have concluded that the overwhelming evidence underlying the aggravating circumstances outweighed the mitigation beyond a reasonable doubt.

All defendants charged with crimes deserve a competent and rigorous defense because of the higher stakes in a criminal matter, the loss of liberty, and none more so than in a capital punishment case where the stakes for the defendant are at the highest—the loss of life. This case and the Court’s subsequent analysis illustrates the incredible importance of compliance with all procedural requirements when mounting a defense on behalf of a defendant, as the failure to comply with certain procedural rules ultimately resulted in Clayton waiving review of his Fourth Amendment violation claim on appeal.  Despite this waiver, the Court of Criminal Appeals did conduct a review of his claim; but, because of that waiver, consideration of that claim was pursuant to the Court’s Plain Error Review, a much higher burden to meet. This case highlights the importance of ensuring compliance with all procedural requirements at every stage of the litigation process and reaffirms that, though a person has enumerated constitutional rights, in order for your constitutional rights to be exercised, a defendant must do exactly that—make a clear showing of intent to exercise your rights. This right is not guaranteed unless it exercised properly.

State of Tennessee v. Tabitha Gentry (AKA Abka Re Bay)

No. W2015-01745-SC-R11-CD

Judge Jerry Smith

Criminal Law Journal Member: Kendahl Shoemaker Luce

Full Article PDF: State of Tennessee v. Tabitha Gentry

Defendant, Tabitha Gentry, was indicted by a Shelby County Grand Jury for theft of property valued at over $250,000 and aggravated burglary.  The charges stemmed from Gentry’s week-long seizure and physical occupation of a 10,000 square foot East Memphis home. On August 26, 2011, Renasant Bank foreclosed on the home and assigned Greg Paule, who was in charge of managing the bank’s foreclosed homes, to prepare the home for sale.  By February 2013, the bank had sold the home for $2.4 million dollars and as it prepared for closing, Gentry simultaneously worked to acquire the property without purchasing it.  Gentry filed twelve pages of “difficult to decipher documents” with the Shelby County Register of Deeds, including a document titled “quitclaim deed” that purported to transfer title of the home to Gentry using her alias, Abka Re Bay.  By March 4, 2013, Gentry had entered the home without the Bank’s consent or knowledge, changed the locks, and placed a large chain and padlock on the front gate of the property.  She also posted six signs advertising “No Trespassing,” “Private Property,” and “Keep Out” on the trees around the property and placed a flag for the “Moorish National Republic” on the front gate with a sign stating, “I Abka Re Bay, seize this land for the Moorish National Trust.”

On March 4, the real estate agent for the bank discovered the signs, flag, chain, and padlock when he drove by to check on the property.  He called Paule to notify him about what was occurring at the home, and Paule then called the police.  By the time the police had spoken with both men and prepared a written report, it was nearly dark so the police decided not to approach the house at that time because of safety concerns.  The next morning, both men and the bank president met with the police and it was decided that the bank needed to give the occupants of the home twenty-four hours’ notice to vacate, so they placed a written notice to vacate on the gate. The next day, however, Paule learned from an attorney for the City of Memphis that Gentry was under FBI investigation because of threats she had made against the President of the United States.  As a result of concerns related to those threats, the Shelby County Sheriff’s Office became involved in this matter and decided to enter the house with a Special Weapons and Tactics (“SWAT”) team to arrest Gentry for the home occupation.  As SWAT prepared to enter the property, they saw a white car leave through the front gate.  A sergeant with the Sheriff’s Office followed the car, pulled it over, and arrested Gentry. After which, SWAT entered the home and discovered clothing, food, a few air mattresses, and official documents under the name of Tabitha Gentry and “Moorish sovereign documents” issued to “Abka Re Bay.”

At trial, Gentry chose not to testify, at least partly based on her belief that she was “not subject to [the] futile jurisdiction” of the trial court. The jury convicted her of theft of property valued at $250,000 or more and aggravated burglary. The aggravated burglary conviction was based on Gentry’s intent to commit the theft of the real property when she entered the same house. She was sentenced to twenty years for the theft conviction and to three years for the aggravated burglary conviction. On appeal, the Court of Criminal Appeals affirmed the convictions and sentences. Gentry then filed an application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, which the Tennessee Supreme Court granted.

The primary issues on appeal were whether Tennessee’s consolidated theft statute encompasses the offense of theft of real property, and if so, based on the facts of this case, the evidence was sufficient to sustain a theft conviction.  The Court ultimately concluded that the General Assembly intended Tennessee’s consolidated theft statute to apply to theft of real property in the same way it applies to other property, and that there was sufficient evidence to support a conviction for the theft of realty. In determining whether there was sufficient proof to support a conviction for theft of property valued at over $250,000, the Court noted that, although the facts of most “squatter” cases would not support a conviction for theft, this was not a typical case as Gentry was not a “mere squatter.”  Based on Gentry’s filing of papers with the Register of Deeds Office by which she sought to obtain record ownership of the property coupled with her physical occupation and seizure of the house, the Court held that there was sufficient evidence to support the jury’s finding that Gentry had the intent to permanently deprive the Bank of the property and had obtained and/or exercised control over the real property.

As noted in the opinion, in 1989, Tennessee adopted a consolidated theft statute which incorporated all the myriad ways at common law one might deprive another of his/her property.  The legislative intent was to relieve the burden on prosecutors to choose the precise common law offense for the situation at hand.  The hope was that no longer would an accused thief be able to escape punishment through dismissal of an indictment which charged the wrong common law offense. With these considerations in mind, thirty-six states have, as of June 1, 2017, enacted consolidated theft statutes similar to Tennessee’s.

Tennessee Code Annotated Section 39-14-103 (a) provides that:

A person commits theft of property if, with the intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.

This consolidation of various common law offenses into a single theft statute did however change the definition of some of the old common law offenses and the elements that must be proven for a conviction of the offenses.  For example, an asportation or moving of property is no longer necessary to prove a theft.  In this case, the primary issue raised was whether Tennessee’s consolidated theft statute encompasses theft of real property.  Based on the statutory language the General Assembly chose to adopt when it enacted the consolidated theft statute, the Court determined that there are no limitations in the statute that preclude its application to theft of real property generally or distinguish between real and personal property for purposes of conduct requirements for carrying out a theft. Therefore, the Court held that under Tennessee’s broad theft statute, real property, which, of course, cannot be asported or moved, might be the subject of a theft conviction.  Thus, the question in the case sub judice resolves itself into whether the evidence is sufficient to prove the defendant obtained or exercised control over the realty with the intent to deprive the owner of the real estate.

The unusual and egregious actions of the defendant in this case were found by the Court to be sufficient to sustain a theft conviction. The defendant took up residence in the realty, put up signs stating her intent to seize the property, publicly proclaimed herself the owner of the property, and even executed a fake “deed” indicating the property had been transferred to her.  Under these circumstances, the Court found the evidence sufficient to support a conviction for the theft of realty.

Notably, while holding the evidence sufficient for the conviction in the instant case, the Court took pains to explain that this conviction was upheld due to the actions of the defendant which evinced an intent to deprive the owner of the realty.  In the more typical “squatter case,” the squatter temporarily occupies the property without evincing any intent to deprive the owner of the property.

Although not stated in the opinion, reading between the lines, it appears the audacity of the defendant in her actions of attempting to remain in control of the property prompted prosecutors to charge her with theft rather than the less serious offenses of trespass or vandalism.  Practitioners should keep in mind the unusual nature of this case and watch for prosecutorial overreach in more routine squatter cases.

The Court in this case concluded that the evidence was sufficient for a trier of fact to conclude that the defendant “obtained and/or exercised control over the real property”.  Consequently, a question arises from this seeming conflation of the elements of “obtaining” and “exercising control” over the realty.  Specifically, one might ask, how does this holding affect the case of State v. Byrd in which the Supreme Court held that aggregation of the value of property in a theft prosecution depends on whether the defendant is charged with “obtaining” property, stolen from multiple owners, (usually cannot aggregate value of property taken from multiple owners) or “exercising control” (usually can aggregate value of property taken from multiple owners)?  Given the exceptional nature of the instant case, any answer as to the effect of this case on Byrd may remain unanswered for some time to come.