State of Tennessee v. Michael Rimmer, No. W2017-00504-SC-DDT-DD (April 16, 2021).

Written By: Andrew Daffron, Associate Editor

This case involves the disappearance and assumed death of Ricci Lynn Ellsworth. The procedural history of this case takes place over twenty years and involved two trials and three sentencing hearings.

On February 8, 1997, the victim, Ricci Ellsworth, was working as the night clerk at the Memphis Inn in Shelby County. Ellsworth worked in an enclosed office in the motel lobby behind a locked door, shielded from guests by protective glass. On the night of Ellsworth’s disappearance, several guests reported seeing a figure in the motel’s parking lot near a maroon sedan. One guest reported entering the hotel lobby area in front of a figure that Ellsworth appeared to know. Another guest reported seeing two men walk into the lobby area. Another guest reported seeing a figure put something wrapped in a blanket in the trunk of his car, and the car sinking from the weight of the object. The guest then walked into the lobby after the man from the parking lot and reported seeing another man behind the counter pushing cash through the window. He reported that both men had blood on their hands.

At around 3:00 a.m., a local CSX worker tried to get in touch with crew members who were staying at the motel. When the clerk did not answer, he drove to the motel. Upon arriving, he went into the employee bathroom, finding the sink running, blood on the sink basin, and the toilet seat was removed and covered in blood. The worker attracted the attention of two Shelby County Sherriff’s Office patrol cars and directed them to the motel. The police were unable to find Ellsworth, though her car was still in the parking lot. The officers contacted the Memphis Police Department (MPD) which took over the investigation. The MPD officers took photographs of the crime scene, dusted for fingerprints, collected and tagged evidence, and completed paperwork. Blood samples were taken from numerous places blood was discovered. The victim’s body was never found.

The evidence quickly pointed to the Defendant. The Defendant previously had a tumultuous romantic relationship with the victim, during which he was convicted of raping her. During his incarceration for her rape, the Defendant met a childhood friend of the victim, who informed the Defendant that the victim has received a sum of money in settlement of a personal injury claim. This angered the Defendant who believed he was entitled to a portion of the money. The Defendant informed the friend that he intended to kill the victim upon his release from prison. This is one of several people the Defendant informed that he intended to kill the victim while incarcerated. He also bragged to another inmate about being able to dispose of a body in a manner where it would never be found. Upon his release from prison, the Defendant began working at a local automotive collision center. One of his coworkers drove a maroon sedan, which the Defendant asked to borrow. The car was never returned by the Defendant.

In early March, the defendant was stopped in Indiana for speeding. Upon running the car’s plates, the officer realized the MPD had an interest in the car as part of an ongoing investigation. The local police in Indiana contacted MPD who sent detectives that night. MPD detectives watched a local evidence technician process the car. The technician found traces of blood, took ninety-six photographs of the vehicle, and took multiple samples of blood-stained items found in the car. The car was then transported to Memphis and ultimately transferred to the TBI for testing. Evidence was then transferred to the FBI, which found the blood samples taken from the car to match blood samples taken from the crime scene. The FBI forensic examiner also compared the blood samples to samples from the victim’s mother, finding it likely that the samples were taken from a descendant of the mother. The maroon sedan was later returned to the coworker after MPD determined that it no longer had the storage capacity to hold the car, and that MPD had taken enough evidence from it.

After his arrest for the murder of the victim, the Defendant attempted to escape three times. The first escape attempt was from his cell in Indiana. There, he spoke to another inmate about having killed the victim. The second attempt was from a federal prisoner transport van. The third attempt was from the Shelby County Jail.

The first trial occurred in 1998. A jury convicted the Defendant of first-degree murder, aggravated robbery, and theft of property – the judge imposed a death sentence. The State had also charged the Defendant with felony murder, but the jury did not reach a verdict on this count. This was appealed and affirmed by the Court of Criminal Appeals and the Tennessee Supreme Court. The defendant sought post-conviction relief. The post-conviction trial court granted relief, finding ineffective assistance of counsel, and ordered a new trial.

During the second trial in 2016, the state called an expert witness to testify about the blood patterns at the crime scene. He testified that the blood stains were consistent with either blunt force trauma or trauma from a sharp object, stating it was possible for the toilet seat to have been used to kill the victim. The Defendant called two expert witnesses, both of whom raised issues with the collection and testing of the evidence, and that they were unable to make accurate determinations because the evidence was no longer available. After considering the evidence, the jury convicted the Defendant of first-degree premeditated murder, first-degree felony murder, and aggravated robbery. At the penalty phase of the trial, the Defendant waived his right to present mitigating evidence. The jury found an aggravating circumstance beyond a reasonable doubt and imposed a sentence of death.

The Tennessee Supreme Court first considered whether the conviction for felony murder violated the prohibition on double jeopardy. The Court found that it did not because of the nature of the jury instructions. The jury received instructions that were considered to be “acquittal first” instructions, meaning the jury was instructed to consider the lesser count only if it first found the defendant not guilty of the greater offense. As the jury found the Defendant to be guilty of the greater offense, it did not reach the felony murder charge, therefore negating any claim of double jeopardy. The Court also found that the Defendant failed to preserve the issue of prosecutorial misconduct in a manner that would create a double jeopardy issue.

The Court then considered whether MPD erred in not retaining the car so that the Defendant’s experts could evaluate the evidence. The Court affirmed the lower courts’ findings that the State did not have a duty to retain the car. The Court based this finding on the thoroughness of the retrieval of evidence from the car, finding that under these circumstances the car had little exculpatory value and that the Defendant had access to the investigatory materials. In the alternative, the Court found the State did not act improperly because there was no negligence in releasing the car to the owner, the vehicle itself had little significance as evidence, and a finding that the other evidence used at trial was overwhelming.

The Court turned next to whether the trial court erred in allowing the previous convictions for rape and assault under Tennessee Rules of Evidence 404(b). The Court found no abuse of discretion and that the trial court properly admitted the evidence as it was probative of identity, motive, intent, and premeditation, all non-propensity reasons for admission. The Court also considered whether the trial court erred in allowing evidence of the Defendant’s escape attempts. The Court stated that evidence of escape or attempted escape after the commission of a crime can be relevant and admissible at trial to show guilt, knowledge of guilt, and consciousness of guilt. The Court found that this evidence was similarly properly admitted under Rule 404(b), finding that the trial court mitigated any risk of unfair prejudice by giving the jury two limiting instructions about the use of this evidence.

The Court then conducted its mandatory review of the death sentence received by the Defendant. This review is statutorily mandated and is comprised of an evaluation of whether: (1) the death sentence was imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the aggravating circumstances outweighed any mitigating circumstances; and (4) the capital sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

The Court found that the trial court conducted both the guilt and penalty phases of the trial in accordance with the applicable statutes and procedural rules, and that the evidence was more than sufficient to support the guilty verdict. The imposition of the death sentence was therefore not arbitrary. The jury did find an aggravating circumstance beyond a reasonable doubt. The record contained little if any mitigating circumstances. Finally, the Court found that the sentence was proportional when compared to similar cases. Finding all the required conditions sufficiently met, the Court affirmed the death sentence.

This case highlights the importance of maintaining the record throughout the pendency of an appeal of a capital case. The events, in this case, occurred over the course of over twenty years and have involved numerous trials, sentencing hearings, and appeals, including to the Tennessee Supreme Court twice. The issues raised in this appeal all were resolved by looking to the record and either finding procedures were sufficiently followed, or in the appeal of the felony murder charge, insufficiently followed. Capital cases often take decades to reach their conclusion, so ensuring a record is sufficient to allow the reviewing court to adequately review each issue raised in subsequent appeals is crucial.

State of Tennessee v. Craig Dagnan, No. M2020-00152-SC-R11-CD (March 4, 2022).

Written By: Claudia Coco, Senior Editor

The Supreme Court of Tennessee considered the case of State of Tennessee v. Craig Dagnan on December 1, 2021. Dagnan appealed his revocation of probation, and while he conceded that the revocation of probation was proper, he claimed that the “trial court abused its discretion by ordering him to serve the balance of his sentence in the Tennessee Department of Corrections.”[i] The Court took this case as an opportunity to clarify the standard for the revocation of probation. The Court ultimately held that the probation of revocation process is a two-step consideration of the trial court. “The first step is to determine whether to revoke probation, and the second is to determine the appropriate consequences upon revocation.”[ii] The case history is as follows.

In July of 2014, Dagnan was accused of a Class D felony, theft over $1,000 but less than $10,000. Dagnan pleaded guilty to that offense in January of 2015. Dagnan “received a six-year sentence as a Range II offender, with five years, six months, and nine days suspended to supervised probation,” and he was ordered to pay $1,250 in restitution and to complete over 100 hours of community service, and not to contact the victim.[iii] Dagnan’s first violation of probation happened four months later because he failed to pay restitution, then he failed to show up to the hearing and was arrested. At a subsequent revocation hearing, Dagnan was sentenced to 90 days in local confinement.

Five months later, Dagnan violated his probation for a second time when he failed his drug screen by testing positive for methamphetamine and failed to pay restitution. Dagnan failed to report to his supervisor as directed by a trial court summons. Dagnan then received a subsequent revocation hearing, where his probation was revoked partially, and he was ordered to serve eight months in local confinement.

In May of 2018, Dagnan had his probation revoked for a third time. Dagnan’s probation was revoked because “he failed to abide by curfew, left the state without permission, incurring a new criminal charge—driving with a suspended license—in Georgia, and failing to report the new charge.”[iv] This time his probation was revoked to serve 120 days in confinement, attend anger management courses, and prohibited him from driving without a valid license as additional probation conditions.

In November of 2018, Dagnan was subject to a fourth probation revocation process for failure to comply with the probation conditions set in May of 2018. After Dagnan’s hearing in January 2019, “the trial court entered an order partially revoking Defendant’s probation to serve eleven months and twenty-nine days in confinement.”[v] Dagnan received a furlough to be released from jail to Freedom House Ministries for drug treatment. A term of the furlough included, “that the defendant was required to report back to the Marion County Jail within four hours if he left the treatment facility for any reason prior to the completion of the program.”[vi]

In June of 2019, Dagnan violated his probation for a fifth time. The treatment program dismissed Dagnan, and Dagnan failed to report to the jail within four hours of release of the program. Additionally, Dagnan “was charged in Georgia with a misdemeanor failure to appear,” and “he also allegedly failed to pay supervision fees, courts costs, and/or fines, and failed to report his arrest.”[vii] The probation revocation hearing was held in December of 2019. After listening to the defendant’s proof, the court instructed that it was conducting a two-step analysis. First, the court made a finding “that defendant violated his probation by failing to report back to jail following his discharge from the treatment facility and absconding.” The second finding “was based on the evidence presented at the hearing and numerous factors including Defendant’s character, prior criminal history, mental health and addiction, and the nature of the offense.”[viii] The court stated that regardless of whether Dagnan was properly discharged from the treatment facility he knew that he had to report to the jail within four hours of release. The court in his findings stated, “Mr. Dagnan, I really only have one option at this point just based upon the criminal history and all of the chances that you’ve been given.”[ix] At the conclusion of the hearing, Dagnan’s probation was revoked in full.

At the Criminal Court of Appeals level, the court found that the trial court judge did not abuse his discretion in revoking the probation in full and ordering the defendant to serve the remainder of his sentence. There was one concurring opinion from Judge Timothy Easter, in which he stated that the statute does not require additional findings of fact or an additional hearing, it is simply sufficient to find that there was a violation of probation.

The Tennessee Supreme Court took this opportunity to clarify the standard. The Supreme Court clarified that probation revocation is a two-step consideration. Clarifying that the first step is to determine whether to revoke probation and the second is to determine the appropriate consequences upon revocation. The trial court does not have to conduct an additional hearing to make these findings. The trial court can make these findings at the revocation hearing entitled to the defendant by law. The Court clarified that “these are two distinct discretionary decisions, both of which must be reviewed and addressed on appeal.”[x] The Court addressed that these additional factual findings facilitate meaningful appellate review. It allows the appellate court to look at factors the trial court reviewed when making a discretionary decision, when reviewing it under an abuse of discretion standard.

The Tennessee Supreme Court found that the appellate court is to conduct an abuse of discretion standard for both steps. The standard of review to be used by the appellate court is “abuse of discretion with a presumption of reasonableness so long as the trial court places sufficient findings and the reasons for its decisions as to the revocation and the consequences on record.”[xi] The court stated that “it is not necessary the trial court’s findings to be particularly lengthy or detailed but only sufficient for the appellate court to conduct a meaningful review of the decision.”[xii] The reasoning for the decision is to promote meaningful appellate review and public confidence. If there are no factual findings made by the trial court, then the “appellate court may conduct a de novo review if the record is sufficiently developed to do so, or the appellate court may remand the case to the trial court to make such findings.”[xiii]

This decision requires that trial court judges conduct a two-step process when conducting a revocation hearing. By not only finding that there was a violation of probation but requiring that the judge make factual findings regarding the consequences of the violation of probation, which allows the appellate court to conduct a meaningful review of the revocation. In addition, it serves a purpose to let the defendant know why his probation is being revoked and the factors that the judge is weighing and considering when making the decision regarding punishment. Finally, it inspires public confidence in the trial court’s decision because it allows for more transparency in the process. This decision allows everyone to see the reasoning for the judge’s decision, and it ultimately helps the appellate court when reviewing the case under an abuse of discretion standard. The appellate court will no longer have to guess what the trial court was thinking at the time probation was revoked, now the findings will on the record for the court to review.

 

[i] State v. Dagnan, 641 S.W.3d 751, 756, 757 (Tenn. 2022)

[ii] Id. at 757.

[iii] Id. at 752.

[iv] Id. at 753.

[v] Id.

[vi] Id.

[vii] Id. at 754.

[viii] Id.

[ix] Id.; See also Id. at 759 (“The transcript of the revocation hearing included six pages of oral findings by the trial judge. The trial court considered Defendant’s repeated violations, his addiction, and the nature of his most recent violation. It noted that, regardless of whether Defendant was properly or wrongfully discharged from the treatment facility, he ‘knew what was expected of him’ and deliberately absconded. Speaking to defendant expressly considered whether to “revoke you in full… or give you another chance or [into some kind of treatment facility.’ Ultimately the court emphasized the lack of success in giving the defendant multiple chances to comply with the terms of probation in the past and the seriousness of his deliberate failure to report back to jail in choosing to order Defendant ot serve his sentence in incarceration.”).

[x] Id. at 757.

[xi] Id. at 759.

[xii] Id.

[xiii] Id.

On June 4, 2018, Douglas Linvil

State of Tennessee v. Douglas E. Linville, No. W2019-02180-SC-R11-CD (June 1, 2022).

Written By: Hunter Lindsey, Associate Editor

Tennessee Code Annotated § 39-17-432 heightened the penalty for drug offenses committed in “drug-free zones,” requiring that the sentence be subject to a one-level classification increase (i.e., Class D felony to a Class C felony) and required a sentence of at least the minimum time suggested by Tennessee’s sentencing guidelines. Drug-free zones were initially 1,000 feet areas around schools, but the Tennessee legislature added public parks to the statute in 2005 with the caveat that convictions near public parks were not subject to the one-level enhancement.

On June 4, 2018, Douglas Linville’s home was searched by police, who found various scheduled substances and drug paraphernalia. Linville’s home was within 1,000 feet of a drug-free zone, and a public park, subjecting him to heightened penalties under Tennessee law. Linville was convicted of five counts, three of which were relevant to this case: counts one and two were for possessing Schedule II controlled substances (methamphetamine and hydrocodone), and count three was for possessing a Schedule IV controlled substance (Xanax).

Counts one and two, given Linville’s criminal history, had a sentence range of 10-15 years. Linville was sentenced to 12 years imprisonment on both counts to be served concurrently. Count three was given two disparate sentences – a 12-year sentence at the sentencing hearing and an 8-year sentence on the written judgment. This occurred because the parties incorrectly informed the court that count three was a Class C felony like counts one and two when possession of Xanax is actually a Class D felony with a sentence range of 8-12 years.

Linville appealed his conviction, attacking the sufficiency of the evidence, and did not dispute his sentence. The Court of Criminal Appeals affirmed the convictions on this issue. However, Linville had identified the disparity in the sentence imposed by the trial court in person in comparison with the written judgment. The appellate court affirmed the sentence as well, reversing only to direct the trial court to correct the judgment and mark count 3 as a Class C felony. It justified this decision based on the one-level enhancement provision.

Linville appealed this decision, arguing that the appellate court misinterpreted T.C.A. § 39-17-432 and the legislature did not intend for drug convictions near public parks to be subject to either the one-level enhancement or the mandatory minimum requirement. While the appellate court addressed the former issue, Linville argued the latter issue was reviewable as a plain error.

The first issue in the case is the following: Does T.C.A. § 39-17-432’s one-level enhancement provision apply to drug offenses occurring within 1,000 feet of a public park? The Supreme Court of Tennessee held that the answer to this question is no.

T.C.A. § 39-17-432(b), which provides for a one-level enhancement, was amended in 2005 to prohibit any increase in incarceration as a result of that section where the drug offense was committed within 1,000 feet of a public park. Accordingly, Linville’s conviction for possession of a Schedule IV substance could not be sentenced as a Class C felony, as the appellate court held, but as a Class D felony, which had a range of 8-12 years, not 10-15.

The second issue in this case is the following: Does the mandatory minimum provision apply to drug offenses occurring within 1,000 feet of a public park? The Supreme Court of Tennessee held that the answer to this question is yes.

Because Linville did not challenge the mandatory minimum provision at the appellate level, the Supreme Court may only address this issue if it is a plain error. The plain error doctrine permits courts to consider issues not properly preserved if: (1) the record clearly reflects the error (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the accused was adversely affected, (4) the issue wasn’t waived for a tactical purpose, and (5) justice requires the error to be considered.

The plain language of § 39-17-432 evinced an intent for mandatory minimum and enhanced sentences and the mandatory minimum provisions in subsections (c) through (e) were self-contained and unaffected by the modifications in subsection (b). Based on that language, § 39-17-432 contains no clear and unequivocal rule of law prohibiting the imposition of mandatory minimum sentences for drug offenses committed within 1,000 feet of a public park, and therefore the plain error doctrine doesn’t rehabilitate Linville’s failure to preserve any issue for appeal concerning the mandatory minimum provision.

Accordingly, because count three had a mandatory minimum of eight years and a suggested maximum of 12 years, the trial court’s sentence of 12 years imprisonment for counts one through three, served concurrently, was not in violation of T.C.A. § 39-17-432 and is affirmed.

This case demonstrates just how difficult it is for the plain error doctrine to win the day on appeal. Courts are hesitant to apply the plain error doctrine and will stop as soon as an element of the doctrine isn’t met, just as the Tennessee Supreme Court did in this case. Accordingly, attorneys need to be vigilant when looking for issues they foresee having any potential for appeal, even if it seems like a longshot. The Court in this case could have dived deeper into other issues related to mandatory minimum sentences, like the rule of leniency or any specific constitutional issues arising out of the Tennessee state constitution but could and would not do so because the defendant had not preserved the issue for appeal. While the Court noted that Linville was able to appeal any aspect of his sentence, it also noted that Linville’s failure to appeal, not object to it at the sentencing hearing, prevented deeper consideration of the mandatory minimum issue. Perhaps bringing up too many issues in one appeal risks wearing out the appellate court’s good will, but in this case, taking that risk could have resulted in a fundamentally different decision.