State v. Myers

581 S.W.3d 173

No. M2015-01855-SC-R11-CD

Attorney Contributor: Dustin Faeder

Journal Member: Brett Windrow

PDF: State v. Myers

This case started on March 13, 2014, from an inspection initiated due to repeated complaints based on an alleged illegal automobile repair shop in Goodlettsville, Tennessee.[1] This was the second occasion that the inspector, Ms. Sandra Custode, had visited the premises, and this time she intended to collect photographs of the house for evidence.[2]Ms. Custode never entered the property, but the owner/defendant, Leroy Myers, Jr., saw the inspector and angrily screamed at her with clenched fists before he ultimately returned to his garage.[3] Custode left the property when Myers entered the garage, but almost immediately upon driving away she heard “several” shots and turned around to see Myers lowering a gun as one of the people with him laughed.[4] Upon reaching a safe distance, Ms. Custode called the Metro Nashville Police Department, who then arrested Myers and found a shotgun at the residence.[5]

 

The State charged Myers with the Class C felony of aggravated assault, with no reference to reckless endangerment.[6] The defense’s primary argument was that Myers did shoot the gun, but that he was merely scaring a hawk away from his chickens rather than threatening Ms. Custode.[7] At closing of the bench trial, the defense argued that because several Tennessee cases[8] have held that actions similar to Mr. Myers’s did not meet the standard of reckless endangerment, a Class E felony, Mr. Myers’s actions could not meet the standard of the Class C aggravated assault charge at issue here.[9] The Trial Court concluded that, by making this argument, the defense counsel had essentially allowed the charge of reckless endangerment to be added to the indictment, under which the Court found Mr. Myers guilty.[10] The Tennessee Court of Criminal Appeals subsequently affirmed the trial court’s ruling, remanded, and affirmed the ruling upon its second appeal, at which point Mr. Myers appealed to the Tennessee Supreme Court.[11]

The Tennessee Supreme Court presented this issue of first impression as “whether and under what circumstances an ‘effective amendment’ to an indictment in a bench trial by other than affirmative means” can be valid.[12] The Court noted that “effective amendment” has generally been used in the context of a defendant “actively requesting an instruction on an otherwise improper lesser offense.[13]” The Court used State v. Stokes,[14] where the Court reversed a finding by the trial court that the failure to object to an improperly included lesser charge did not constitute effective amendment, to support the proposition that something more than mere passivity is required.[15]

From there, the Court dealt with the issue of whether the defendant here did, in fact, affirmatively amend the indictment.[16] The State argued that the defense did so argue on two bases: one, the closing argument statements, and two, off-the-record conversations.[17] For the former, the Court concluded that a mere trial strategy, such as saying the actions at bar would not even satisfy a similar element in a lesser charge, is not so affirmative as to create an effective amendment.[18] For the off-the-record conversations, the Court essentially said that, if the conversation affected the outcome, it should have been part of the record.[19] After quickly disposing of the idea that the defendant waived his ability to appeal, the Court reversed and remanded the case.[20]

While the Tennessee Supreme Court here was right to limit the reach of the Doctrine of Effective Amendment, the Court had an opportunity to set down a clear rule implicit in the case itself and failed to do so, implicating more appeals and the potential for violation of constitutional rights in the future. While there is a point at which a defendant should be made to face the consequences of their request for or acquiescence in an amendment, there must be clear evidence they did so, and the Court here said as much. In being faced with a judge finding amendment based on a strained reading of a closing argument and a supposed off-the-record waiver, the Court had a chance to lay down that a waiver requires a waiver on the record (a classification which would encompass a charge conference), i.e., something “clear from the record.” That the Court did not do so implies either a willingness to allow amendment based on questionable evidence of acquiescence or an unwillingness to come out and state what their decisions are leading to.

The Tennessee Supreme Court last spoke on the doctrine in 2007 in Demonbreun v. Bell,[21] where they held that an amendment to add a charge that the defendant mistakenly thought was a lesser included charge is an effective amendment.[22] Tennessee appellate courts, by contrast, have heard cases involving the “effective amendment” issue ten times,[23] all of which involved juries rather than bench trials (besides, of course, the prior Myers appeals).[24] This is likely because, as State v. Myers hints at in a footnote,[25] the jury instruction system implemented in jury trials provides a convenient means of determining consent or lack thereof. All this is to say that this is a case of first impression of grafting the rules of Effective Amendment from jury to bench trial, and thus an opportunity to lay a firm groundwork for bench trials going forward.

Unfortunately, while the case’s top line conclusion is undoubtedly the best outcome from a Due Process perspective, Myers leaves much to be desired as far as actual guidance is concerned. Obviously, the facts relied on here, off-the-record conversations and bare reference to legal concepts, are not sufficient to amend an indictment. What is less clear is what else is and is not sufficient. The Court attempts to create a rule, stating that an amendment must be “affirmative,[26]” that the amendment be “clear from the record,”[27] and a strong suggestion in a footnote that trial judges start performing “charge conferences.”[28] Yet, in this very appeal, the appellate court seemed to implicitly think that this appeal met those standards.

On that note, the appeals that resulted from this case demonstrate exactly why guidance on this issue is necessary. To reiterate, this is a case where the State argued that an analogy from a closing argument and an off-record conversation were enough to effectively amend a criminal indictment.[29] Yet, despite these facts and explicit reference to the idea that a court should not “presume consent merely from the accused’s silence,” the appellate court twice ruled this enough to amend the indictment.[30] The appellate court believed that an analogy in a closing argument was “affirmative”[31] and that such an analogy plus reference to an off-the-record conversation is “clear from the record.”[32] This is to say, despite fairly clear judicial language, there has been a tendency for lower courts to construe it more broadly than is justifiable under the case law.

The question, then, is what is the rule that is necessary or, indeed, what rule does the Tennessee Supreme Court seem to be leaning towards? The Court’s clear preference seems to be making charge conferences the norm in bench trials, as this is the only direct procedural suggestion anywhere in the entire opinion. The issue is that this statement clearly is not phrased as a direct command (for one thing, it is relegated to a footnote), and trial judges may be resistant to voluntarily doing so for reasons of judicial economy and preferring the flexibility of establishing charges without resort to scheduling a formal conference. Thus, absent such a clear command, the issue becomes defining what qualities the Court finds beneficial about such conferences that those would be the Court’s only firm suggestion. In the case at bar, the Court finds such a practice beneficial because it makes clear “whether a defendant has actively pursued an instruction on an offense.”[33] The question, then, is what evidence “clear from the record” outside of a record from a charges conference would achieve this?

The type of evidence that would reach this same level of clarity seems to be an on-the-record waiver of any argument against the charge they are convicted under. Such a writing or statement would simultaneously leave a similar kind of “paper trail” the results of a conference would while allowing much of the same flexibility trial courts currently have in establishing charges, short of requiring the scheduling of a formal conference. Furthermore, having a defense attorney describe exactly what the defendant is consenting to or signing would provide a direct explanation of a defendant’s Due Process rights absent under the current ad hoc scheme. Finally, connecting this method to the case at hand, this rule would prevent trial judges from interpreting ambiguous statements or situations as a defendant’s waiver of their right to be informed of the charges against them.

Furthermore, the Tennessee Supreme Court has shown itself able to produce such cases in the past. One of the best cases to analogize to Myers is Momon v. State,[34] which established the fundamental state constitutional right for a criminal defendant to testify in their own defense.[35] In expounding this fundamental right, the Court spent about nine reporter pages[36] describing the exact parameters of the right, including, analogous to Myers, a discussion as to what specifically constitutes a waiver of the right.[37] For the Effective Amendment issue, it is at least conceivable that the Court could have gone into a similar level of detail, especially considering the issue here is more narrowly focused on the waiver issue than Momon’s establishment of a constitutional right. Furthermore, the rule the Court there laid down is nearly completely analogous to this situation. Under Momon, a waiver of the right to testify must be performed by the defendant either in writing or orally on the record. There is no obvious reason why the Court is unable to establish a near-identical rule here.

In this Due Process case stemming from, of all places, an unauthorized pastoral car repair shop, the Tennessee Supreme Court clearly came to the right determination of the defendant’s rights. However, the Court’s broader guidance for future cases is flawed. Besides a suggestion in a footnote that trial courts are completely free to ignore, the Court, to a significant degree, restates the exact same law that resulted in the erroneous determination in the first place. As a result, while legally correct, the Court missed an opportunity to settle the issue presented once and for all by requiring a waiver on the record, and has thus set itself up for these issues to continue into the future.

[1] State v. Myers, 581 S.W.3d 173, 175-76 (Tenn. 2019).

[2] Id. at 176.

[3] Id..

[4] Id..

[5] Myers at 176.

[6] Id. at 175.

[7] Id. at 178.

[8] Specifically, State v. Payne, 7 S.W.3d 25 (Tenn. 1999), State v. Terrence Shaw, 2011 Tenn. Crim. App. LEXIS 390.

[9] Myers at 178.

[10] Id. at 178-79.

[11] Id. at 179. For the two appellate level rulings, see State v. Myers, 2016 Tenn. Crim. App. LEXIS 826 (“Myers Appeal I”); State v. Myers, 2018 Tenn. Crim. App. LEXIS 286 (“Myers Appeal II”).

[12] Id. at 182.

[13] Id. at 183 (citing State v. Williams, 558 S.W.3d 633, 637 & n.1 (Tenn. 2018))(emphasis in original).

[14] 24 S.W.3d 303 (Tenn. 2000).

[15] Myers at 183-84.

[16] Id. at 184.

[17] Id..

[18] Id. at 184-85.

[19] Id. at 185.

[20] Id. at 186-88.

[21] 226 S.W.3d 321 (Tenn. 2007). One other reported Supreme Court case, State v. Williams, 558 S.W.3d 663 (Tenn. 2018), referenced the Doctrine, but only as an aside in a footnote. Id. at 537, n.1.

[22] Demonbreun v. Belle, 226 S.W.3d 321, 326-27 (Tenn. 2007).

[23] Including two appeals of the current case.

[24] These include the two aforementioned Myers appeals, State v. Chapman, 2013 Tenn. Crim. App. LEXIS 228, Chapman v. Shepard, 2013 Tenn. Crim. App. LEXIS 606, State v. Spraggins, 2010 Tenn. Crim. App. LEXIS 365, State v. Grey, 2007 Tenn. Crim. App. LEXIS 990, State v. Campbell, 2015 Tenn. Crim. App. LEXIS 860, State v. Austin, 2015 Tenn. Crim. App. LEXIS 343, State v. Collins, 2017 Tenn. Crim. App. LEXIS 981, State v. Ortega, 2015 Tenn. Crim. App. LEXIS 295.

[25] Myers at 187, n.5.

[26] Id. at 184.

[27] Id. at 186 (emphasis in the original).

[28] Id. at 187, n.5.

[29] Id. at 183.

[30] Myers Appeal I at *13, Myers Appeal II at *12-*13.

[31] Myers Appeal II at *12-*13.

[32] Id.

[33] Myers at 187, n.5.

[34] 18 S.W.3d 152 (Tenn. 1999).

[35] Id. at 161.

[36] Id. at 157-69.

[37] Id. at 161-63.

State of Tennessee v. Christopher Minor

546 S.W.3d 59

Attorney Contributor: Taylor D. Payne

Criminal Law Journal Member: Joseph North

PDF Copy: State of TN v. Christopher Minor

In State of Tennessee v. Christopher Minor, the Tennessee Supreme Court thoroughly detailed the plain error doctrine and held that that “new rules apply retroactively to cases pending on direct review but do so subject to other jurisprudential concepts, such as appellate review preservation requirements and the plain error doctrine.”[1] The Court’s holding correctly applied long held doctrines of Tennessee law and reversed the decision by the Court of Criminal Appeals that did not address the retroactive application of new rules.[2] The facts of this case are straightforward.

Christopher Minor was acting at the behest of the leader of the Black P-Stone Nation – the criminal gang to which Mr. Minor also owed his allegiance – when Rico Swift was murdered, and Julie Frye was injured during a robbery perpetrated by Mr. Minor and fellow members of the gang.[3] Ms. Frye positively identified, through a photo array, Mr. Minor as the person who attacked Mr. Swift and then pistol-whipped her into unconsciousness.[4] Mr. Minor vehemently denied Ms. Frye’s accusations, insisting instead that he was merely a scout who had only accepted his portion of the proceeds from the robbery under penalty of gang discipline.[5]

Mr. Minor was subsequently indicted on sixteen counts, including two felony murder counts and seven counts for violating Tennessee Code Annotated §40-35-121(b), the Criminal Gang Statute, the violation of which qualified Mr. Minor for sentencing one classification higher than the charged offenses.[6] The trial judge bifurcated the proceedings: one trial determined guilt as to felony murder, aggravated robbery, aggravated burglary, aggravated assault, and employing a firearm in the commission of a dangerous felony while the other trial determined guilt as to the seven counts for violating the Criminal Gang Statute.[7]

At sentencing, the trial court merged several of the defendant’s convictions and imposed a total effective sentence of life plus twenty years with at least ten years of the defendant’s effective sentence resulting from enhancement under the criminal gang offense statute.[8] Additionally, the trial court recorded the defendant’s convictions of aggravated robbery, aggravated burglary, aggravated assault, and felon in possession of a handgun as one classification higher than the classifications established by the statutes creating the offenses, as authorized by the criminal gang offense statute.[9]

Following the defendant’s trial and sentencing but during the pendency of his appeal, the Court of Criminal Appeals handed down State v. Bonds, declaring the “Criminal Gang Statute” unconstitutional on grounds that Tennessee Code Annotated §40-35-121(b) violated the Due Process Clause of the Fourteenth Amendment for lack of a nexus requirement between the underlying offenses and the gang affiliation.[10]

Mr. Minor relied on Bonds in his own appeal to the Court of Criminal Appeals, but the Court held that that the defendant had waived his constitutional challenge to the statute by failing to raise the issue in the trial court and that the defendant was not entitled to relief on his constitutional claim via the plain error doctrine.[11]

The Court of Criminal Appeals noted that the gang enhancement statute was not found unconstitutional until after the defendant’s trial beginning and the imposition of his sentence.[12] That Court further noted that “[e]very act of the General Assembly is presumptively constitutional until condemned by judicial pronouncement.”[13] Because the Criminal Gang Statute was still in effect at the time of sentencing, a clear and unequivocal rule of law was not breached. Therefore, the trial court had not made plain error.[14] The Tennessee Supreme Court accepted certiorari “to clarify the interplay among appellate review preservation requirements, the plain error doctrine, and the retroactive application of new rules.”[15]

As to the retroactive application of new rules, the Supreme Court noted that, generally, “appellate courts apply new constitutional rules retroactively to all cases pending on direct review when the new rule was announced.”[16]However, this application is not unconstrained.[17] When determining whether to apply new rules retroactively to cases pending on direct review, such cases are subject to appellate review preservation requirements and the plain error doctrine.[18]

The Supreme Court noted that the “obligation to preserve issues for appellate review applies to constitutional issues and issues of ‘any other sort.’”[19] Appellate review is generally limited to issues that a party properly preserves for review by raising the issues in the trial court and on appeal.[20] However, the “plain error doctrine has long been recognized as a necessary exception to [those] requirements, which affords appellate courts discretion to review unpreserved errors and grant relief when fairness and justice demand.”[21] Because Mr. Minor failed to preserve the issue of the constitutionality of the Criminal Gang Statute, the issue could only be considered under the plain error doctrine.[22]

To find plain error, an appellate court must find:

(1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the issue was not waived for tactical reasons; and (5) consideration of the error is necessary to do substantial justice.[23]

Though the appellate courts are empowered to find plain error, such authority must be “sparingly exercised.”[24]

Because the Defendant did not preserve for appeal the issue of the constitutionality of the Criminal Gang Statute, Defendant could only seek review under the plain error doctrine. The primary issue on appeal was whether “a clear and unequivocal rule of law was breached” because that was the ground on which the Court of Criminal Appeals rejected the plain error doctrine.[25] The Tennessee Supreme Court analyzed the Olano, Jonhson, and Henderson trifecta, as decided by the Supreme Court of the United States.

In Olano, the United States Supreme Court held “that an error is not ‘plain’ for purposes of the plain error doctrine unless the error is clear under current law.[26] In Johnson, the Court held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal . . . it is enough that an error be ‘plain’ at the time of appellate consideration.”[27] In Henderson, the Court held that an appellate court must “apply the law in effect at the time it renders its decision.'”[28] That rule, harkens back to the earliest days of jurisprudence in the United States when Chief Justice Marshall wrote that “if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed.”[29]

The Tennessee Supreme Court held that Henderson did not need to be adopted or addressed, finding that “the circumstances of this case lie somewhere between Johnson and Henderson but resemble slightly more closely those of Johnson,” and on those grounds Johnson was found to control.[30] The Court held that the “law at the time of the defendant’s trial concerning the constitutionality of the criminal gang offense statute cannot be characterized as unsettled,” but rather “the issue was simply undecided because no court had addressed it.”[31]

Pursuant to Johnson¸ the Criminal Gang Statute was still in effect at the time of Mr. Minor’s trial, but the Criminal Gang Statute was no longer in effect at the time of direct appeal, rendering the extant law on appeal clearly contrary to the law at the time of trial. The Court held that “the defendant’s convictions and enhanced sentencing under the unconstitutional criminal gang offense statute violate a clear and unequivocal rule of law.”

The Court briefly discussed the other elements of the plain error doctrine before reversing and remanding for “resentencing in accordance with the sentencing classification ranges established by the specific statutes creating the offenses, without any classification or sentence enhancement pursuant to the criminal gang offense statute.”[32]

The Tennessee Supreme Court’s decision was both prudent and correct, though the concurring opinion disagrees. The concurring opinion argues for the adoption of Henderson to hold that “an appellate court, when determining whether a defendant is entitled to plain error relief, should apply the law in effect at the time of its review.”[33] The adoption of Henderson was not necessary, and the Court correctly declined to address it.

The Court applied Johnson, which the Court had adopted in 2005.[34] The Court addressed only the issues before it by Mr. Minor and was able to resolve those issues within existing legal precedent. Tennessee has long applied the doctrine of stare decisis.[35] The Tennessee Supreme Court held over one-hundred and fifty years ago that it is “more important to adhere to precedent, and uniformity of decision, than to change that which is settled.”[36]

Stare decisis “only arises in respect of decisions directly upon the points in issue.”[37] In Minor, Johnson was the law governing at the time of the appeals, and Johnson was applicable to the issues on appeal. It may behoove the Court to adopt Henderson at some later date, but Johnson’s holding was sufficient to address these issues, and Henderson did not need to be addressed.

The concurring opinion states that Henderson would simplify “appellate practice by sparing lawyers and judges the ‘temporal ping-pong’ that results from focusing on the law at the time of trial—law that changes after trial and may be obsolete by the time of appeal.”[38] Johnson does not require “temporal ping-pong;” for relief under Johnson, settled law applied at trial must be essentially cast aside and a contrary position adopted at the time of appeal. The law at the time of appeal must be clearly contrary for Johnson to apply, and that determination is relatively straightforward. In Minor, law in effect at the time of trial was no longer in effect at the time of appeal: a simple yes or no determination for appellate courts. Applying Johnson is far more akin to Chinese checkers than ping-pong.  The Court properly declined to adopt Henderson.

Because of this scheme, a legal practitioner must keep abreast of new developments in the law. An attorney must remain informed of any and all changes in the law to effectively represent clients. An attorney must take the time to scour the advance sheets and slip opinions, published daily by the appellate courts, to remain informed of new legal developments and changes in the law. An attorney must update research and Shepardize citations every time a form motion is to be used. An attorney must know the law, not merely concepts and theories and history, but the very statutes and precedent that effect matters pending in all courts.

Further, as Minor notes, an attorney must preserve a record on appeal and cannot rely on the doctrines such as plain error to provide relief for clients. Without properly preserved objections, a record on appeal will be deficient and non-reviewable. Plain error applies only in the narrowest of circumstances and cannot be relied on as the primary grounds for appellate relief.

---

1 State v. Minor, 546 S.W.3d 59, 75 (Tenn. 2018).

2 See State v. Minor, No. W2016-00348-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 102, at *26-27 (Crim. App. Feb. 16, 2017).

3Minor, 546 S.W.3d 59, 62 (Tenn. 2018).

4 Id. at 63.

5 Id.

6 Id.

7 Id.

8 Id. at 64.

9 Id.

[10] See State v. Bonds, 502 S.W.3d 118, 167 (Tenn. Crim. App. 2016).

[11] State v. Minor, 546 S.W.3d 59, 64 (Tenn. 2018)(citing State v. Minor, No. W2016-00348-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 102, at *27 (Crim. App. Feb. 16, 2017).

[12] State v. Minor at *27 (Crim. App.)(citing State v. Jermaine Stripling, No. 2015-01554-CCA-R3-CD, 2016 Tenn. Crim. App. LEXIS 443, 2016 WL 3462134 at *8 (Tenn. Crim. App. June 16, 2016).

[13] State v. Minor at *27 (Crim. App.) (citing Taylor v. State, 995 S.W.2d 78, 85 n7 (Tenn. 1999).

[14] State v. Minor at *27 (Crim. App.)

[15] State v. Minor, 546 S.W.3d 59, 62 (Tenn. 2018).

[16] Id. at 68 (citing Griffith v. Kentucky, 479 U.S. 314, 326-28 (1987); State v. Gomez 163 S.W.3d 632, 643 (2005)).

[17] Id.

[18] Id.

[19] Id. at 65 (citing United States v. Olano, 507 U.S. 725, 731 (1993)).

[20] Id.

[21] Id. (citing Olano, 507 U.S.732).

[22] See State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007); Tennessee Rules of Appellate Procedure Rule 36.

[23] Minor, 546 S.W.3d at 67 (citing Tenn. R. App. P. 36(b); State v. Martin, 505 S.W.3d 492, 504).

[24] Minor, 546 S.W.3d at 67.

[25] Id. at 64.

[26] Id. at 71 (citing United States v. Olano  507 U.S., 266, 275 (1993)).

[27] Id. (citing U.S. v. Johnson 520 U.S. 461, 466 (1997).

[28] Minor, 546 S.W.3d at 72 (citing U.S. v. Henderson Id. at 271 (quoting Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281(1969))).

[29] Minor, 546 S.W.3d at 72 (citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L. Ed. 49 (1801).

[30] Minor, 546 S.W.3d at 74.

[31] Id.

[32] Minor, 546 S.W.3d 75.

[33] Minor, 546 S.W.3d 76.

[34] See State v. Gomez, 163 S.W.3d 632, 636 (Tenn. 2005)(vacated on other grounds)

[35] Memphis v. Overton, 216 Tenn. 293, 297, 392 S.W.2d 98, 100 (1965) (citing Sherfy v. Argenbright, 48 Tenn. 128 (1870); Foster v. Roberts, 142 Tenn. 350, 219 S.W. 729 (1919); Staten v. State, 191 Tenn. 157, 232 S.W.2d 18 (1950).

[36] Sullivan v. Ivey, 34 Tenn. 487, 488 (1855).

[37] Memphis v. Overton, 216 Tenn. 298, 392 S.W.2d 98 at 101 (citing State ex rel. v. Nashville Baseball Club,127 Tenn. at 307, 154 S.W. at 1155 (1912).

[38] Minor, 546 S.W.3d at 76.

State of Tennessee v. Jerome Antonio McElrath

569 S.W.3d 565 (Tenn. 2019)

No. M2015-01794-SC-R11-CD and No. M2015-01958-SC-R11-CD

Attorney Contributor: Roger E. Nell

Criminal Law Journal Member: Cooper Byers

PDF: State of TN v. McElrath

 

Rather than keeping just one document listing all those currently barred from housing authority property, the Union City Police Department kept two.[1] One document, the “barred” list, listed people currently barred from housing authority property.[2] Another document, the “reinstated” list, listed people who were no longer barred from such property.[3] In April of 2015, both the barred list and the reinstated list included Jerome McElrath’s name.[4]

When Union City Police Officer Chris Cummings called dispatch on April 8, 2015 asking if Mr. McElrath was barred, dispatch looked at the barred list, and upon finding McElrath’s name, told the officer McElrath was in fact barred from housing authority property.[5] However, dispatch failed to also check the reinstated list which  would have revealed that Mr. McElrath was no longer barred.[6] In fact, McElrath had been reinstated and his name placed on the reinstated list, however his name was not removed from the barred list for nearly five years.[7]

Because dispatch told Officer Cummings that McElrath was still barred, Officer Cummings arrested McElrath, twice, for criminal trespassing.[8] Incident to arrest, both times, the officer searched him.[9] Both times the officer found contraband on him.[10]  McElrath was twice charged with possession of marijuana.[11] McElrath moved to suppress the evidence.[12]  The trial court granted McElrath’s motion to suppress and the Court of Criminal Appeals affirmed because, as the trial judge put it, Tennessee had no good faith exception “to get around the exclusionary rule.”[13]

The Tennessee Supreme Court extended the good faith exception of Herring v. United States[14] to Tennessee.[15]“[W]hen police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence [by suppressing the evidence] does not ‘pay its’ way.”[16] Nonetheless, the Court upheld the suppression of evidence in this case because the five-year long error was the result of a systemic or reckless disregard for constitutional requirements.[17]

The Tennessee Supreme Court holding in this case further signaled to trial courts that courts are not bound to apply a good-faith exception exclusively to those circumstances under which the Court itself has specifically applied it.[18] The Tennessee Supreme Court was clear in earlier applications and extensions of a good-faith exception that such was limited to the situation at hand.[19] Trial courts were not free to find a good-faith exception under other circumstances.

Now, trial courts “have discretion to consider variations of the good-faith exception described herein.”[20] In other words, trial courts are at liberty to look for and find good-faith exceptions under circumstances other than what the Tennessee Supreme Court has specifically considered. In that regard, the dam appears to have been broken. Yet, the Tennessee Supreme Court noted a doctrine that may be helpful in diverting the deluge: collective knowledge.[21]

To those on the law enforcement side of things, this case is a boon.  Indeed, it was set up as such.[22] On its face, this case further erodes State constitutional protections[23] and continues the trend of reducing State constitutional protections to the floor level of the Federal Constitution.[24] In the end, the Tennessee Supreme Court’s broad adoption of the good-faith exception ostensibly excuses police negligence with regard to constitutional protections.[25]

The majority’s position is that the exclusionary rule will do little to nothing to prevent or correct law enforcement’s “mere negligence.” Justice Lee fairly counters that position. She notes that the majority conclusion “goes against the long-standing tort principle that individuals and entities have an incentive to act with due care when there is liability for negligence.”[26] If holding a person financially liable for injuries is sufficient to correct or prevent negligent behavior by the average citizen, why would the loss of admissible evidence be insufficient to correct or prevent constitutionally negligent behavior by law enforcement?

Interestingly, the majority relied in part on the “collective knowledge” doctrine in upholding the suppression of the evidence.[27] In sum and with some overstatement, that doctrine holds that what one cop knows, they all know.[28]Courts have used the “collective knowledge” doctrine to uphold warrantless searches and seizures when the arresting or searching officer did not personally have sufficient knowledge to support probable cause but other law enforcement, at least those marginally involved in the situation, did.[29] The majority in McElrath, relying in part on Ramirez[30]  – a California case, held that probable-cause-defeating information, too, must be imputed to the officer on the ground.[31]Sauce for the goose is sauce for the gander.

Justice Kirby took umbrage with this notion. She argued that Ramirez may not have survived Herring and should be disregarded.[32] However, Justice Kirby’s argument fails for two reasons.

First, the majority did not exclusively rely on Ramirez. The majority also relied on Leon,[33] which established the exclusionary rule at the federal level in the first instance. The Herring court also relied upon Leon. Specifically, as the majority quoted Herring, “Leon admonished that we must consider the actions of all the police officers involved.”[34]

Second, Ramirez was decided by the California Supreme Court. When Ramirez is read closely, this case appears to have been resolved as a matter of State constitutional law and is thus free to provide more protection to people than the federal constitution.[35] Similarly, McElrath is a Tennessee case decided under Tennessee’s Constitution. The Tennessee Supreme Court is free to create its own remedies and rules for State constitutional issues and they should.

On the surface McElrath seems to wash away any errors in receipt and transmission of information to the law enforcement officer on the street at the scene. The focus of that argument will be that whatever happened was “simple, isolated oversight or inadvertence.”[36] That will be the State’s position and it is still the State’s burden to prove that a search or seizure was constitutional and that a good-faith exception applies.[37]

To counter that effect, McElrath provides authority to hold law enforcement accountable for the accurate receipt and transmission of information from beginning to end. We are in an era of “swatting.”[38] Nefarious individuals call 911 falsely reporting a serious emergency, such as a bomb threat, murder, or hostage situation. That (mis)information triggers an overwhelming police response sometimes to deadly ends for wholly innocent and unsuspecting people. Ought not law enforcement bear some responsibility for vetting information before acting? Ought the courts not demand such? Otherwise, the courts will enable systemically flawed processes or inadequately maintained records, excusing constitutional violations under the guise of isolated oversight or inadvertence.

Once information is relayed to law enforcement, the law enforcement system is responsible for its accurate receipt and transmission right down the chain.[39] While it looks like McElrath’s good-faith exception provides insulation for the searching or seizing officer, such insulation should only be available if the State can establish that all of the information known and provided to the acting officer was accurate, was received accurately, and was transmitted accurately. Only then should the officer – rather, the law enforcement system – be deemed to have acted in good-faith.

 

[1] State v. McElrath, No. W2015-01794-SC-R11-CD and W2015-01958-SC-R11-CD, slip op. at 3-4 (Tenn. Mar. 12, 2019).

[2] Id.

[3] Id.

[4] Id. at 4-5.

[5] Id. at 2.

[6] Id. at 5.

[7] Id. at 4.

[8] Id. at 3.

(MISSING FOOTNOTE)

[9] Id. at 1.

[10] Id. at 2.

[11] Id.

[12] Id. at 4.

[13] Id. at 4-5.

[14] Herring v. U.S., 555 U.S. 135 (2009).

[15] McElrath, at 21-22.

[16] Id. at 15 (quoting Herring, 555 U.S. at 147-48).

[17] Id. at 19.

[18] Id. at 16 n.3.

[19] See, State v. Reynolds, 504 S.W.3d 283, 313 (Tenn. 2016).

[20] McElrath, at 16 n.3 (emphasis added).

[21] Id. at 19.

[22] State v. McElrath, 2017 WL 2361960, *3 (Tenn. Crim. App. No. W2015-01794-CCA-R3-CD, May 31, 2017).

[23] McElrath, at 15-16.

[24] Id.  See State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016); State v. Davidson, 509 S.W.3d 156 (Tenn. 2016); State v. Lowe, 552 S.W.3d 832 (Tenn. 2018); State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017).  Justice Brennan warned: “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.  The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law – for without it, the full realization of our liberties cannot be guaranteed.” Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).

[25] McElrath, at 15; Lee’s Separate Opinion at 3.

[26] Lee’s Separate Opinion at 3.

[27] McElrath, at 19-21.

[28] Id. at 19.

[29] Id.

[30] People v. Ramirez, 668 P.2d 761 (Cal. Sup. Ct. 1983).

[31] McElrath, at 21.

[32] Kirby’s Separate Opinion at 5-6.

[33] United States v. Leon, 468 U.S. 897 (1984).

[34] McElrath, at 20 (quoting Herring, 555 U.S. at 140 in turn citing Leon, 468 U.S. at 925, n.24) (emphasis added).

[35] Ramirez, 668 P.2d at 768-69.  Chief Justice Bird’s one-paragraph concurrence would specifically state that Ramirez turned solely on independent State grounds.  State courts of last resort should remember Justice O’Connor’s suggestion in Michigan v. Long, 463 U.S. 1032 (1983).  “If a state court chooses to rely on federal precedence as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purposes of guidance, and do not themselves compel the result that the court has reached. . . .  If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.”  Id. at 1041.

[36] McElrath, at 17 (quoting State v. Lowe, 552 S.W.3d 832, 860 (Tenn. 2018)).

[37] Id.

[38] See, Swatting, available at https://en.wikipedia.org/wiki/Swatting (accessed Sept. 26, 2019); Swatting is a Dangerous Prank with Potentially Deadly Consequences, available at https://www.cnn.com/2019/03/30/us/swatting-what-is-explained/index.html (accessed Oct. 2, 2019).

[39] We used to play a game called “Telephone” in school.  The teacher whispered a word or phrase to a student.  Then that student whispered it to the next, and to the next, and it was passed through all the students.  The last student then said out loud what he had been told.  Never did the last student ever say what the teacher whispered to the first student – never.  Current technology available to and being used by law enforcement is sufficient to overcome this problem.

State of Tennessee v. Anthony Jerome Miller

575 S.W.3d 807 (Tenn. 2019)

Attorney Contributor: Ellison M. Berryhill

Criminal Law Journal Member: Colbie Taylor

Full Article PDF: State of Tennessee v. Miller

On May 22, 2019, the Tennessee Supreme Court issued an opinion in State v. Miller, which held that “Tennessee Code Annotated section 39-17-1007 does not require search warrants to be applied for by the office of the district attorney general.”[1] The issue in the case was whether the word “process” as used in T.C.A. 39-17-1007 included a search warrant. The Tennessee Supreme Court ruled that it did not. This comment will proceed in two parts. First, it will describe the history and holding of the Miller case. Second, it will argue that the Tennessee Supreme Court inappropriately ignored the rule of lenity, which required it to give deference to the defendant in resolving the meaning of an ambiguous statute.

The facts of the case as described in the Tennessee Supreme Court opinion are straightforward. The State alleged that on or about January 8, 2015, Mr. Miller committed the offense of Sexual Exploitation of a Minor as defined by Tenn. Code Ann. §39-17-1003(a).[2] As a part of the investigation, “Detective Michael O’Keefe of the Morristown Police Department obtained and executed a search warrant for the Defendant’s residence and computers.”[3] Detective O’Keefe also filed an affidavit indicating that law enforcement consulted with the district attorney’s office before requesting the warrant.[4] The State gathered certain evidence because of this search warrant that they intended to introduce against Mr. Miller.[5]

Mr. Miller filed a motion to suppress the seized evidence arguing that law enforcement did not have the authority to file for a search warrant.[6] The centerpiece of the argument is the statute that governs Sexual Exploitation of a Minor and, specifically, T.C.A. §39-17-1007 which provides that “[n]o process, except as otherwise provided, shall be issued for the violation of [s]ections 39-17-1003 – 39-17-1005 unless it is issued upon the application of the district attorney of the district.”[7] Mr. Miller raised the issue of whether the process referred to in this statute includes the search warrant that Detective O’Keefe obtained.[8] If the search warrant was “process,” then the statute required the prosecutor to apply for the warrant, and Detective O’Keefe did not have the constitutional authority.[9] If he did not have constitutional authority to seize the evidence, then the evidence could not be introduced at trial.[10]

After a hearing, the trial court denied the motion.[11] The trial court held that a search warrant was an investigative tool and not “process” as referenced in the statute.[12] The court did not delve deeply into the law of process but held that process would refer to something like an arrest warrant, a presentment, or an indictment.[13] Because this did not fit into one of those categories, the trial court found that the search warrant was not process.[14]

Additionally, the trial court found that, even if the issuance of the search warrant constituted process, law enforcement met their obligation by consulting with the district attorney.[15] Although the statute says that the search warrant must be issued upon the application of the district attorney, the trial court found that a mere consultation with them prior to filing met the statutory definition.[16]

After this ruling, Mr. Miller pled guilty but reserved the certified question of law that is central to this case: “Whether the affidavit in support of [the] search warrant and [the] search warrant [itself] were subject to and complied with the requirements of T.C.A. §39-17-1007?”[17] On appeal, the Court of Criminal Appeals affirmed the trial court’s ruling that the statute did not apply to search warrants.[18]

The Tennessee Supreme Court granted Mr. Miller the right to appeal and affirmed the Court of Criminal Appeals’ ruling. The Supreme Court began their analysis by rejecting two Court of Criminal Appeals’ cases that found in favor of similarly situated defendants.[19] The first case was State v. Davis.[20] In that case, the defendant raised the issue presented here, but the Court of Criminal Appeals upheld the warrant based upon other law.[21] The Court of Criminal Appeals did hold that section -1007 “is broad enough to include a search warrant” and that “involvement of the district attorney general was required . . . .”[22] The Tennessee Supreme Court in Miller rejected this holding as dictum because “the intermediate appellate court engaged in no particular analysis to arrive at this conclusion.”[23]

The Court also addressed State v. Doria.[24] In Doria, the Court of Criminal Appeals held that the statute required the district attorney to apply for the search warrant but found that the State complied with this rule because the prosecutor signed the application for the warrant.[25] They found the prosecutor’s signature to be a level of involvement sufficient to satisfy T.C.A. §39-17-1007’s requirements.[26] The Miller Court noted that Doria cited the supposed dicta in Davis and, therefore, rejected the Doria holding.[27]

The Court then turned to an analysis of T.C.A. §§40-6-101 through -110 (2018), which provides “the general law regarding the issuance of search warrants.”[28] The Court said that T.C.A. §§40-6-101 through -110 does not provide any circumstances under which the district attorney general alone may apply for a search warrant.[29] In fact, Tennessee Rule of Criminal Procedure 41(a) provides a list of the officials who can apply for a search warrant and that list includes any law enforcement officer.[30] The Court found that had the legislature intended to deviate from the wording of Rule 41 and the statutory scheme relating to search warrants, they “would have said so explicitly.”[31] Therefore, the Court held that process as listed in T.C.A. 39-17-1007 does not include a search warrant and, therefore, the search warrant in Miller was proper.[32]

One of the fundamental rules of statutory construction is the rule of lenity. The rule of lenity requires a court to resolve statutory ambiguity in favor of the criminal defendant.[33] A word is ambiguous if it “can reasonably have more than one meaning.”[34] A statute is ambiguous if it “is susceptible [to] more than one reasonable interpretation.”[35] As the United States Supreme Court has held, the rule of lenity “reflects not merely a convenient maxim of statutory construction but is based on fundamental principles of due process.”^[36]

The rule of lenity serves two functions: (1) protecting the legislature’s authority to establish the rules of criminal law by preventing the judiciary from being overly punitive and (2) protecting the defendants’ rights to due process by ensuring that they have notice of the rules to be used against them.[37] This rule should apply to this case because the legislature has the right to set the rules surrounding search warrants and defendants have the right to know who can obtain search warrants against them. If there is ambiguity in the definition of process, then it should be resolved in favor of the Defendant.

There are at least two points of ambiguity in the word “process” as used in T.C.A. §39-17-1007.[38] First, the definition of “process” in the statute is not obvious. The Supreme Court did not look to dictionary definitions of the word in their ruling, but the definition at the time of the statute’s passage is certainly relevant. [39] If a fundamental word in the statute is unclear, then the court should find that the statute’s applicability is ambiguous.

The legislature passed T.C.A. §39-17-1007 in 1990, and Black’s Law Dictionary at that time included intermediate process in the definition of process.[40] Black’s Law Dictionary defined intermediate process (or mense process) as “distinguished from final process . . . signifies any writ or process issued between the commencement of the action and the suing out of execution. ‘Mense’ in this connection may be defined as intermediate; intervening; the middle between two extremes.” [41]

The definition unties process generally from the process at the beginning of the case. The modern colloquial definition of process is the service of process to begin the lawsuit and that colloquial definition may be how the Supreme Court became confused about this ambiguity. However, the legislators who wrote this statute had a broader understanding at the time they wrote the statute. This is an ambiguity that should be resolved in favor of the Defendant.

Second, the Supreme Court’s conclusion makes an unwarranted jump in logic that, at minimum, supplies some ambiguity but arguably serves to discredit the opinion as a whole. The Court finds that the general law concerning search warrants allows law enforcement agents to apply for search warrants.[42] The Court rejected Mr. Miller’s argument that T.C.A. § 39-17-1007 narrows this range because, the Court believed, the legislature would have been explicit about narrowing the authority for search warrants had it intended to do so.[43] It says this without providing sufficient examples of divergent rules that might meet its requirements.

This extension of logic is inappropriate. The legislature regularly adds specific rules to an area of established law with more generalized rules. [44] Such is frequently the purpose of legislation and that is likely what happened with this case. The typical rule for search warrants is that law enforcement officers can apply for them. However, it is reasonable to believe that, in cases of sexual exploitation of a minor, the legislature wanted the district attorney to be the applicant and therefore passed a statute to narrow the law.

There is even some precedent for the legislature to set different rules in child sex cases. Tennessee Rule of Criminal Procedure 16 regulates the discovery process in criminal cases.[45] Section (d) of the rule sets out the procedure for protecting discovery and the sanctions for failing to comply with discovery, but (d)(3) set out specific rules for child pornography cases.[46] Although normally the defendant can get a copy of all of the discovery available to the state, Rule 16(d)(3) prevents that copying when the discovery contains documents depicting sexual exploitation of minors.[47] The authors of those rules clearly wanted a difference in sexual exploitation cases and it was unreasonable for the Supreme Court to ignore that difference here.

Defenders of the Tennessee Supreme Court opinion may argue that the modification in Rule 16 is explicit to the point that practitioners can understand the difference while that in T.C.A. §39-17-1007 is not. Rule 16 notes that it overrides the conflicting portions of the law.[48] However, the deviation in T.C.A. §39-17-1007 is its own statute and, by that, declares itself separate and apart from the other law in the field. The sexual exploitation of a minor statute creates a statutory scheme that applies only to that set of crimes. The existence of this statutory scheme is an explicit modification of the traditional law that should be sufficient for the Tennessee Supreme Court to respect it.

Cases involving sexual exploitation of a minor are sensitive and involve substantial harm to some of the most vulnerable people in society. It is important for the criminal system to get those cases right, but it is also important to investigate them carefully. Being charged with sexual exploitation of a minor can ruin someone’s life even if they are eventually acquitted.[49]

If a search warrant is going to be issued on a sensitive case, then it makes sense that the application would have to come from the top officials and it makes sense that the legislature would provide that protection to the potentially harmed subject. Just because the rest of the body of law does not provide for the limitation implied by this statute does not mean that the legislature would not pass a statute containing a limitation. This logical leap supplies an ambiguity that should be resolved in favor of the defendant.

Overall, the rule of lenity provides that ambiguity should be resolved in favor of the defendant. In at least two places, this statute contains ambiguity. First, the definition of process at the time of the law’s passage included intermediate process. Second, the addition of a rule to an existing body of law is often done purposefully, so ignoring it in this case is not logical. Therefore, the word process should be read to include a search warrant. The Supreme Court ignored this rule and, therefore, released an incorrect ruling.

 

[1] State v. Miller, 575 S.W.3d 807 (Tenn. 2019).

[2] Id. at 808.

[3] Id.

[4] Id. at 810.

[5] According to the opinion, law enforcement seized “a Westell wireless router, a Logitech flash drive, Kingston SD card, Kingston micro SD adapter, LG flip phone, three pieces of paper with notes, eight gigabytes Scandisk memory stick, five CDRs, HP computer, three VHS tapes, a JVC video camera, a 32 gigabyte Scandisk from a camera and a Bart router and Samsung cell phone and ninety CDs and DVDs.” Id. at 809.

[6] The opinion discusses the factual basis for the search warrant, but Mr. Miller does not contest the basis for the search warrant so we will not analyze it here.

[7] Id. at 811 (citing T.C.A. 39-17-1007).

[8] State v. Miller, 574 S.W.3d at 808.

[9] Id.

[10] Mapp v. Ohio, 367 U.S. 643, 655 (1961).

[11] State v. Miller, 574 S.W.3d at 808.

[12] Id. at 809-10.

[13] Id. at 809.

[14] Id.

[15] State v. Miller, at 810.

[16] Id.

[17] Id. (brackets added).

[18] State v. Miller, No. E2016-01779-CCA-R3-CD, 2017 WL 2839745, at *4-5 (Tenn. Crim. App. July 3, 2017), perm app granted (Tenn. Nov. 16, 2017).

[19] Id. at 811-12.

[20] Id.

[21] Id.

[22] State v. Davis, E2003-02162-CCA-R3-CD, 2004 WL 2378251, at *7 (Tenn. Crim. App. Oct. 25, 2004), aff’d on other grounds 185 S.W.3d 338, 347 (Tenn. 2006).

[23] State v. Miller, 574 S.W.3d at 811.

[24] Id. at 811-12.

[25] State v. Doria, No. M2014-01318-CCA-R3-CD, 2016 WL 1694120, at *1 (Tenn. Crim. App. Apr. 26, 2016), perm. app. denied. (Tenn. Aug. 17, 2016).

[26] Id.

[27] State v. Miller, 574 S.W.3d at 811-12.

[28] Id. at 812.

[29] Id.

[30] Id. (citing Tenn. R. Crim. P. 41(a)).

[31] Id.

[32] Id. at 813.

[33] David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo Law Review 523, 524 (2008).

[34] State v. Bowens, No. E2017-02075-CCA-R3-CD, 2018 WL 5279374, at *5, (Tenn. Crim. App. Oct. 23, 2018), no perm app filed (quoting Lee Med. Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010)).

[35] Bowens, 2018 WL 5279374, at *5, (quoting Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn. 2001)).

[36] Dunn v. United States, 442 U.S. 100, 112 (1979).

[37] Romantz, supra note 33, at 524.

[38] There are other potentially ambiguous points. For example, amendment No. 1 to § 39-17-1001 said “seizure for the possession of obscene matter shall be in accordance with 39-17-901 – 39-17-908” in section 9. Tenn. Code. Ann. § 39-17-903 states “Upon a showing of probable cause that the obscenity laws of this state are being violated, any judge or magistrate shall be empowered to issue a search warrant in accordance with the general law pertaining to searches and seizures in this state.” Section 9 never made it into the final statute, which indicates that the legislature wanted these offenses to be treated differently than typical obscene material.

[39] Courts are restricted to the natural and ordinary meaning of the language used by the legislature in the statute, unless an ambiguity requires resort elsewhere to ascertain legislative intent. Halbert v. Shelby County Election Comm’n, 31 S.W.3d 246, 248 (Tenn.2000).

[40] Henry Campbell Black, Black’s Law Dictionary, Abridged Sixth Edition, Centennial Edition (1891-1991), West Publishing Co (1991), 837-838.

[41] Id.

[42] State v. Miller, at 812.

[43] Id. at 813.

[44] One example of this comes from the federal law on firearm provisions. Typically, being convicted of a felony makes it illegal for one to own or possess a firearm. 18 U.S.C. § 922. Misdemeanors are typically excluded from this rule. However, Congress believed that domestic violence was a type of misdemeanor that deserved to be treated specially. They, therefore, extended the prohibition in 18 U.S.C. §922 to those convicted of a misdemeanor crime of domestic violence.

[45] Tenn. R. Crim. P. 16.

[46] Tenn. R. Crim. P. 16(d)

[47] Id.

[48] Id.

[49] For example, Michael Jackson was tried for molestation in 2005. He was acquitted but allegations continued to surface and his public reputation was tarnished.

State of Tennessee v. Susan Jo Walls

No. M2014-01972-SC-R11-CD

Attorney Contributor:Jack Mitchell

Criminal Law Journal Member:Jake Old

Full Article PDF: State v. Walls

Though the facts within State v. Walls are unusual, this case ultimately turns on fundamental rules of evidence and procedure. Susan Walls was implicated in a conspiracy to murder her husband, Larry Walls, Sr. [1] Susan Walls had met with her daughter, son-in-law, and friends in the days leading up to Larry Walls’s death. [2] The group conspired to murder Larry Walls, apparently as retribution for his abusive behavior towards them. [3] The conspiracy called for Susan Walls and other family members to take her grandchildren to Chuck E. Cheese while two friends, Sean Gerheardt and Jason Starrick, actually carried out the physical act of murdering Larry Walls. [4]

On the day of the homicide, Susan Walls arrived home to the scene of her husband’s death and called 9-1-1; she reported to the call-taker that it appeared that a burglary had taken place at her home—and made no mention of the homicide.[5] The crime scene was described as gruesome, with blood on the walls, floor, and furniture around the victim.[6] The TBI agent  responsible for investigating the scene said it looked staged and that the 9-1-1 call seemed odd. [7] Ultimately, agents uncovered evidence pointing to the murder-for-hire conspiracy. [8] Susan Walls was charged with First Degree Murder and Conspiracy to Commit Murder. [9]

At trial, Susan Walls experienced some health problems during closing arguments. [10] A paramedic was called and Walls was reported to have very high blood pressure levels. [11] After she was transferred to a hospital, the trial court judge mentioned the possibility of instructing the jury without Susan Walls present, but defense counsel objected to any further action without the defendant present; as a result, the parties and the Court waited to proceed with the case.[12] During the period of delay, the State prosecutor and defense counsel discussed how to move forward with proceedings; defense counsel stated that, “the best thing to do would be to adjourn until tomorrow and start fresh in the morning.”[13] There was no further discussion on the matter. [14]

Susan Walls returned from the hospital approximately two and a half hours later and the jury began deliberating at 7:13 p.m.[15] Guilty verdicts were returned at 1:05 a.m. the following morning.[16]Walls was sentence to life in prison and 21 years for each offense.[17] She appealed her convictions on several grounds, including the trial court’s decision to allow the jury to deliberate late into the night.[18] The Tennessee Court of Criminal Appeals reversed the convictions based on the late-night jury deliberations.[19] After the State appealed, the Tennessee Supreme Court heard the case to consider the following issues: (1) whether Walls sufficiently preserved review of late-night jury proceedings; (2) if so, whether the appellate court could apply a plain error review instead; and (3) the proper standard of review for determining whether a trial court erred in allowing late-night jury deliberations. [20]

The Supreme Court ultimately held that Walls did not preserve the issue of late-night proceedings.[21]Further, the Court decided that plain error review was not available as an avenue of relief for Walls because the defense never asserted plain error as a basis of review.[22] The Court also held that the standard of review in determining whether a trial court errs in allowing late-night jury deliberations is abuse of discretion.[23] The Court’s last holding—regarding the proper standard of review—was addressed in a concurring opinion by Justice Sharon Lee, who called the majority’s decision an “advisory opinion.” [24]

The Court began its analysis by determining whether or not a statement of concern by defendant’s counsel about the jury beginning deliberations after seven o’clock in the evening rose to the level of a contemporaneous objection.[25] Because the trial judge did not respond to counsel’s comment, and no further discussion was had on the record, the Court concluded this issue was waived.[26] Counsel also had argued in his motion for new trial that an elderly juror exhibited fatigue during the night, but neither brought it to the judge’s attention during the trial, nor did he call the juror as a witness at the hearing to testify about the effects of the late-night proceedings.[27]

Because counsel made no objection to the late-night deliberations, the issue was deemed to be waived.[28] The Court still considered whether or not relief was warranted based on plain error.[29] The Court, in State v. Martin, previously held that an appellate court will grant relief for plain error only if: (a) the record clearly establishes what occurred in the trial court; (b) a clear and unequivocal rule of law has been breached; (c) a substantial right of the accused has been adversely affected; (d) the accused did not waive the issue for factual reasons; and (e) consideration of the error is “necessary to do substantial justice.”[30]

The Court declined to apply plain error to the facts of this case­–nor was it asserted or argued for by defendant–finding it inapplicable because of a lack of clear and unequivocal law on the subject.[31] Because it found the standard of review for late-night judicial proceedings to be unclear, the Court resolved the issue by holding that the appropriate standard of review is abuse of discretion.[32] Justice Lee’s concurring opinion was critical of the majority for not simply ending its analysis upon determining that the defendant was not entitled to a new trial, instead choosing to overreach and address the appellate standard of review.[33] However, her criticism seems misplaced in light of the majority’s stated purpose of establishing the proper standard of review under the Court’s supervisory authority.

Of particular importance for any trial attorney is that this case highlights why it is far better to make a clear objection, on the record and contemporaneous with any error, real, perceived, or even suspected. Absent plain error by the trial judge, a failure to object is usually fatal on appeal.[34] An appeals court may infer an objection without counsel uttering the word “objection,” but the risk inherent in this tactic is unnecessary.[35] The worst that can happen upon making an objection is the judge chooses to overrule it, but doing so is valuable in that it preserves the issue for appeal. This fact can easily be forgotten in the controlled chaos of a trial, but zealously representing a client requires an attorney to pay particular attention to the details–and safeguarding the client’s options in the event of an unfavorable verdict is one of the most critical.

 

[1]State v. Walls, 537 S.W.3d 892, 895-96 (Tenn. 2017).

[2]Id. at 895.

[3]Id.

[4]Id.

[5]Id. at 894-95.

[6]State v. Walls, 537 S.W.3d 892, 895 (Tenn. 2017).

[7]Id. at 894.

[8]Id. at 895-97.

[9]Id. at 897.

[10]Id. at 897.

[11]State v. Walls, 537 S.W.3d 892, 897 (Tenn. 2017).

[12]Id.

[13]Id.

[14]Id.

[15]Id.

[16]State v. Walls, 537 S.W.3d 892, 898 (Tenn. 2017).

[17]Id. at 896.

[18]Id. at 897.

[19]State v. Walls, No. M2014-01972-CCA-R3-CD, 2016 Tenn. Crim. App. LEXIS 263, *43-*46, *85 (Crim. App. Apr. 7, 2016). See also State v. Walls, 537 S.W.3d 892, 897 (Tenn. 2017).

[20]Walls, 537 S.W.3d at 899, 904-05.

[21]State v. Walls, 537 S.W.3d 892, 903-04 (Tenn. 2017).

[22]Id. at 901.

[23]Id. at 904-05.

[24]Id.at 906(Lee, J. concurring).

[25]Walls, 537 S.W.3d at 897-99 (Tenn. 2017).

[26]State v. Walls, 537 S.W.3d 892, 899-901 (Tenn. 2017).

[27]Id. at 900.  

[28]Id.

[29]Id. at 900-01.  

[30]505 S.W.3d 492, 504 (Tenn. 2016).

[31]State v. Walls, 537 S.W.3d 892, 901-04 (Tenn. 2017).

[32]Id. at 904-05.

[33]Id.at 906-07(Lee, J. concurring).

[34]“In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection if the specific ground was not apparent from context[.]” Tenn. R. Evid. 103(a)(1).

[35]“Generally, failure to make a timely, specific objection in a trial court prevents a litigant from challenging the introduction of inadmissible evidence for the first time on appeal.” Welch v. Bd. Of Prof’l Responsibility for the Supreme Court of Tenn., 193 S.W.3d 457 (Tenn. 2006). See also Tenn. R. Evid. 103.

State of Tennessee v. David Scott Hall

No. M2015-02402-SC-R11-CD

Attorney Contributor: Victor Johnson

Criminal Law Journal Member: Hannah Roman

Full Article PDF: State v. Hall

This case began on May 18, 2010, when the defendant, David S. Hall, hid a video camera in the minor victim’s bedroom while the victim was showering. The defendant positioned the video camera to record the victim’s bed and the area in which she typically changed clothes. After showering, the victim returned to her bedroom fully clothed and after noticing a flashing red dot on her dresser, discovered the defendant’s video camera hidden under her bra. The victim’s mother turned the video camera over to the police who, in addition to the recording of the victim, discovered a previously deleted “test video” recorded prior to the original video. The “test video” was almost identical to the other video and began by focusing on the victim’s fish tank before panning the room and re-focusing on the victim’s bed. [1]

In December 2010, the defendant was indicted for attempted especially aggravated sexual exploitation of a minor in violation of T.C.A. §39-17-1005 and §39-12-101(a)(2). The defendant was subsequently convicted of that offense following a bench trial in 2015. On appeal in 2017, the Court of Criminal Appeals affirmed that decision. The appellate court’s reasoning relied on the Supreme Court’s recent decision in State v. Whited, 506 S.W.3d 416 (Tenn. 2016), which also addressed the application of the sexual exploitation of a minor statute to hidden-camera video footage of minors.

The Tennessee Supreme Court granted the defendant’s appeal to address the unresolved question in Whited of what evidence is sufficient to sustain a conviction of attempted especially aggravated sexual exploitation of a minor. T.C.A. §39-17-1005(a)(1) outlines the offense of especially aggravated sexual exploitation of a minor as follows: “It is unlawful for a person to knowingly promote, employ, use, assist, transport or permit a minor to participate in the performance of, or in the production of, acts or material that includes the minor engaging in . . . [s]exual activity.” “Sexual Activity” is defined in T.C.A. §39-17-1002(8)(g) as, “[l]ascivious exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person.”

In a 3-2 decision, the Supreme Court determined that the facts were insufficient to support a finding that the defendant attempted to produce material that would include a depiction of a minor in a “lascivious exhibition” of her private body areas, as required under Tennessee’s child sexual exploitation statutes and construed in Whited. The Court reversed the defendant’s conviction, relying on the ruling in Whited which stated that images of a minor victim engaging in everyday activities normally performed in the nude were insufficient to constitute a “lascivious exhibition” under the child exploitation statutes.

In the majority opinion, Justice Holly Kirby, who also wrote the majority opinion for Whited, determined that the appellate court had misapplied Whited to the facts of this case.  In Whited, the defendant hid his cell phone video camera in the family bathroom as well as his daughter’s bedroom where he recorded nine videos of his minor daughter and her friend in various degrees of nudity. It is important to note that, unlike this case, the defendant in Whited was initially convicted for the completed offense of especially aggravated sexual exploitation of a minor. The Supreme Court ultimately reversed the lower courts’ rulings, holding that the videos did not depict the minors engaging in “lascivious exhibitions” as defined under the relevant child sexual exploitation statutes. [2]

In this case, the defendant was indicted and convicted under subdivision (a)(2) of the criminal attempt statute, which states, “A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part . . .”[3] The Court stated that, considering the criminal attempt statute [4] with the child exploitation statutes, “the evidence must show that the defendant knowingly acted (1) with intent to create a video that would include the victim engaging in a lascivious exhibition of her private body areas and (2) with the belief that his conduct would cause the resulting crime intended without further conduct on [his] part.” [5]

Analyzed under T.C.A.§39-12-101(a)(2), the majority ultimately concluded that the evidence in this case was simply insufficient to hold that any rational trier of fact could have found that the defendant intended to record and believed he would record anything more than mere nudity. The Court remarked that the evidence in this case did not give rise to an inference that the intended video would have been any more sexualized than those in Whited. [6]

In his dissent, Justice Roger A. Page, joined by Chief Justice Jeffrey S. Bivins, disagreed with the majority’s reliance on Whited because, unlike Whited, the defendant in this case was charged with the lesser-included offense of attempt. Also unlike in Whited, in this case, it is uncertain what the video could have shown if the victim had not discovered the camera. The inherent uncertainty present in addressing an attempt makes analysis extremely difficult. However, the dissent argued that, “[T]he [d]efendant failed to carry his burden of showing that no rational trier of fact could have found that the [d]efendant intended or believed his hidden camera would capture sexual activity.” [7] The dissent concluded that the facts of this case, in light of the deferential standard of review and fact-bound issue, were sufficient to support the defendant’s conviction for attempted especially aggravated sexual exploitation of a minor. [8]

The dissent disagreed with the majority’s reliance on Whited because the defendant in this case was convicted for attempt under T.C.A. §39-12-101(a)(2), and it is uncertain what the video camera could have recorded had the victim not discovered it. Unlike the dissent, the majority firmly refused to speculate about what the defendant may have hoped to capture. The Court agreed with the lower courts and the dissent that the defendant’s multiple explanations for why his video camera was in the victim’s room were not credible. However, the Court stated that, “[T]he [d]efendant’s lack of credibility does not substitute for evidence that the [d]efendant intended to capture, or believed his hidden camera would capture, an image of anything more than mere nudity.” [9]

The majority concluded that the evidence showed that the defendant would have captured videos nearly identical to those in Whited, which the Court in Whited ultimately determined to be insufficient to sustain the defendant’s conviction. However, the Court in Whited determined that, although the videos of the minor daughter and her friend “engaging in everyday activities that are appropriate for the settings and not sexual and lascivious within the ordinary meaning of those terms” precluded the Court from finding the defendant guilty of the completed offense, the videos did not preclude the State from retrying the defendant for attempted especially aggravated sexual exploitation of a minor.  The Court stated, “The facts of this case present a close question regarding whether the defendant intended to capture exactly what he recorded in the videos—minors engaged in everyday activities ordinarily done nude—or whether he intended to ‘cause a result that would constitute the offense’ of production of child pornography by recording the minors engaged in lascivious exhibition. Tenn. Code Ann. §39-12-101(a)(3). Considering the entirety of the record, ‘the evidence in the record is not so insufficient’ so as to preclude a finding of attempted production of child pornography.” [10]

Of critical importance, the Court in Whited stated that the facts of the case did not preclude a finding of attempted production of child pornography under T.C.A. §39-12-101(a)(3), which states, “A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.” [11]

Subdivision (a)(3) determines that attempt responsibility attaches when an individual’s intentional acts constitute a “substantial step toward the commission of the offense” beyond mere preparation.

In this case, the majority repeatedly referenced the similarities between the videos recorded in Whited and those the defendant in this case was attempting to record. The Court noted that the depictions in this case were similar to those in Whited, in which the camera was situated to capture the victims as they walked about in the bedroom or bathroom nude, performing ordinary activities such as grooming or changing clothes.[12]The defendant in this case engaged in “staging” to ensure that placement of the camera would capture close up images of the victim’s torso while changing. The Court remarked that the videos in Whited included very similar “staging.”[13]All these similarities left the majority to conclude that, “. . . it cannot reasonably be inferred that the [d]efendant intended to capture depictions of the [v]ictim that were appreciably different from those in Whited.”[14]

The majority in Whited stated that the facts did not preclude a finding of attempted production of child pornography under T.C.A. §39-12-101(a)(3). This suggests that the nearly identical facts in this case could also have established attempt under the substantial step standard of subdivision (a)(3) of the criminal attempt statute. However, as noted above, the defendant in this case was indicted and convicted under subdivision (a)(2), which imposes responsibility under the “last proximate act” doctrine, a higher threshold than substantial step. State v. Hall [15]

The Defendant was indicted in 2010 and convicted in 2015, both before the Supreme Court decided Whited in 2016. The State did not have the information provided by Whited when charging the defendant with attempt to produce child pornography under subdivision (a)(2). However, viewing Judge Kirby’s majority opinion in Whited with her majority opinion in this case, had the State indicted under subdivision (a)(3) rather than (a)(2), the result of this case may have been very different. Instead, the question of what evidence is sufficient to establish the attempt of especially aggravated sexual exploitation of a minor under T.C.A. §39-12-101(a)(3) remains unresolved.

[1]State v. Hall, No. M2015-02402-SC-R11-CD, 2019 Tenn. LEXIS 5 (Jan. 7, 2019).

[2]Whited, 506 S.W.3d at 448.

[3]Tennessee Code Annotated §39-12-101(a)(2) (West, Westlaw through 2019 Reg. Sess.).

[4]T.C.A. §39-12-101(a)(2).

[5]Hall, 2019 Tenn. Lexis 5, at *30.

[6]Hall, 2019 Tenn. Lexis 5, at *38-39.

[7]Hall, 2019 Tenn. Lexis 5, at *62.

[8]Id.at *61-62.

[9]Hall, 2019 Tenn. Lexis 5, at *39 n.24.

[10]Whited, 506 S.W.3d at 448.

[11]Tenn. Code Ann. § 39-12-101(a)(3)(West, Westlaw through 2019 Reg. Sess.).

[12]Hall, 2019 Tenn. Lexis 5, at *37.

[13]Id.

[14]Id.

[15]SeeSentencing Commission Comments to T.C.A. §39-12-101 (West, Westlaw).