Friday, September 30, 2011

CCA Reverses Suppression of Evidence from DUI Checkpoint

by OfficerGreg

The state appealed a ruling by Judge Robert Lee Holloway, Jr. granting Charles Vires motion to supress evidence obtained during a DUI traffic checkpoint. The Court of Criminal Appeals reversed.  The issue is whether the police provided sufficient advance notice of the checkpoint.

The trial court found that the checkpoint was not conducted in accordance with the predetermined guidelines listed in General Order 410-1 because the public did not receive advance notice of the general location of the checkpoint or the approximate time it would be conducted. The trial court concluded that the failure of the advance notice to comply with the law rendered the checkpoint an unreasonable seizure under the Tennessee Constitution and granted the Defendant’s motion to suppress the evidence obtained at the checkpoint.

The Court of Criminal Appeals agreed with the trial court’s finding that the advance notice of the checkpoint did not comply with the statute because it did not list the general location of the checkpoint or the approximate time it would be conducted. They disagreed, however, that this factor rendered the checkpoint an unconstitutional seizure. The insufficient advance notice--the court noted--"weighs against the overall reasonableness of the checkpoint, but it does not necessarily invalidate the checkpoint." Publicity is a factor to be considered when assessing the reasonableness of a roadblock but is not alone dispositive of the issue. The Court held that the trial court erred by not considering all relevant factors in determining the overall reasonableness of the checkpoint and whether the checkpoint was conducted in accordance with the mandatory requirements.

There are four factors the court looks at when assessing a DUI road block.
(1) stopping all cars traveling in both directions, unless congested traffic requires permitting motorists to pass through;
(2) taking adequate safety precautions, such as warning approaching motorists of the roadblock and stopping cars only in a safe and visible area;
(3) conducting the roadblock with uniformed officers and marked patrol cars with flashing emergency lights; and
(4) providing advanced publicity of the roadblock to the public at large, separate from, and in addition to, any notice warnings given to approaching motorists.

Lastly came the court's warning:
"We caution that our holding does not condone the Tennessee Highway Patrol’s failure to provide sufficient advance notice in compliance with its own guidelines. If incidents of insufficient advance notice continue to occur, the circumstances may render a checkpoint invalid and justify exclusion of evidence."

Monday, September 26, 2011

Sixth Circuit Upholds a Chattanooga Man's Harsh 120-Month Sentence

Today the Sixth Circuit upheld a harsh sentence of 120 months imprisonment for Tracy Bailey, a Chattanooga man. In 2008, Bailey was on probation after being convicted for robbery. He went to the probation office where he was arrested pursuant to outstanding state warrants for Attempted First Degree Murder and Especially Aggravated Assault (both of which led to a guilty plea). A search incident to arrest revealed that Bailey was in possession of a .38 caliber revolver. He was subsequently indicted for violating 18 U.S.C. § 922(g)(1) which prohibits individuals previously imprisoned for more than a year from possessing a firearm. Bailey eventually pleaded guilty to this crime as well.

The potential sentence range, as suggested by the Federal Sentencing Guidelines, was 77 to 96 months. Also, because the weapons violation occurred while Bailey was on probation, the guidelines recommended that the sentence be served consecutively to the 14-year sentence he was already serving for the state convictions.

At the sentencing hearing in September of 2009, the Court decided to continue the hearing pending an evaluation of Bailey's mental health after the question of whether Bailey was a sociopath arose. The mental evaluator concluded that Bailey did not suffer from a severe mental disease or defect and did not need inpatient hospitalization.

In January 2010, the District Court held the second sentencing hearing. The Court sentenced Bailey to 120 months imprisonment to run consecutively to the 14-year sentence he was currently serving which Bailey appealed.

The Sixth Circuit stated that the question of whether the sentence should be overturned is whether the sentence is "substantively reasonable." Bailey argued that his sentence was substantively unreasonable because the district court 1) gave unreasonable weight to his mental-health diagnosis; and 2) failed to properly consider the 14-year state sentence.

The Sixth Circuit held this sentence was not substantively unreasonable. First, the Court emphasized the reasoning given by the lower court for imposing the maximum 120-month sentence: public safety. Given Bailey's unpredictable and dangerous behavior, to release him from prison would put the safety of the public at great risk. Also, the Court considered the fact that Bailey's criminal history had grown increasingly violent over time. Given these factors, the Court held that the District Court did not give unreasonable weight to his mental-health.

Second, the Court held that the District Court did not fail to properly consider the 14-year state sentence. The Court explained that the District Court was right when it considered the fact that Bailey would be eligible for parole after serving only 30% of his state sentence. It further stated that since most of his criminal acts, which escalated in violence as time passed, occurred shortly after he was released from jail, Bailey's risk of recidivism was overwhelmingly high. The Sixth Circuit considered this reasoning to be reasonable in light of all the facts in this case.

To conclude its opinion, the Court stated, "We are satisfied that the sentence imposed by the district court, although certainly harsh, is not unreasonable."

Thursday, September 22, 2011

Supreme Court Denies Stay of Execution for Troy Davis

"The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the court is denied." Supreme Court: Wed., Sep. 21, 2011

The NYT reports that Troy davis was executed last night in the controversial case in Georgia after the Supreme Court refused a stay of execution.

Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years ago, entered the death chamber shortly before 11 p.m., four hours after the scheduled time. He died at 11:08.
This final chapter before his execution had become an international symbol of the battle over the death penalty and racial imbalance in the justice system.
“It harkens back to some ugly days in the history of this state,” said the Rev. Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.
Mr. Davis remained defiant at the end, according to reporters who witnessed his death. He looked directly at the members of the family of Mark MacPhail, the officer he was convicted of killing, and told them they had the wrong man.
“I did not personally kill your son, father, brother,” he said. “All I can ask is that you look deeper into this case so you really can finally see the truth.”
The Georgia State Board of Pardons and Parole on Tuesday denied Mr. Davis’s clemency after a daylong hearing and announced that that there would be no reconsideration of the case, and a polygraph test--requested by Davis Attorneys--was refused.

Because so many of the ID witnesses at trial have recanted, six in all, the case has become a symbol across the nation and beyond for the problems in administering the death penalty for many with claims of selective enforcement and obvious issues of race and poverty adding to the debate about the validity of a state's moral use of the ultimate penalty.

Tuesday, September 20, 2011

DUI a Restatement of Sufficient Evidence

The court offers a good restatement of the law for insufficiency of the evidence for a DUI case in Tennessee. While everything listed below is well recited law, it is instructive to use this recent opinion as a checklist for cases to assess whether a challenge can be made to the sufficiency of the evidence. You have to deal with these issues in order to raise a challenge, best to be informed at the start: know the standards of review, applicable rules and cited federal and state law precedent.

When an accused challenges the sufficiency of the evidence, this Court’s standard of review is whether, after considering the evidence in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct evidence, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). “The standard of review [for sufficiency of the evidence] is the same whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.1973). The Tennessee Supreme Court stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.

Here, the Court affirmed where the defendant admitted to drinking a beer and smoking marijuana before he drove his car, was caught speeding and ran a red light.

Thursday, September 15, 2011

More than $1.5 million lost by Mayor Ron Littlefield and the City of Chattanooga in 2011 for wrongful termination of Police Officers

Todays' jury verdict of  $680,000 in favor of Chattanooga Police Officer Mickel Hoback is the second time this year that the city of Chattanooga has been ordered to pay out for wrongfully terminating their own officers.  In March of this year the city paid $840,000 to long time CPD Asst. Chiefs Skip Vaugh and Charles Cooke for their wrongful termination.  That totals $1,520,000.00 in awards for terminations approved by Mayor Ron Littlefield. These are not easy cases to prove and historically juries have been sympathetic to an executive's decision to make business decisions, even blatantly poor ones.  But these cases--both are jury verdicts in favor of the officers--show that jurors can and will act when they perceive manifest injustice toward officers employment.  Today's case won by attorneys Phil Lawrence and Mike Richardson was about the Americans with Disabilities Act (PST from serving with the Marines in Iraq) and previously Vaughn & Cooke's case involved proven claims of age discrimination by the Littlefield administration.

Here is information about the award in the Vaughn and Cooke case. Former Chattanooga Officers Receive $840,000. Lee Davis and Jonathan Guthrie represented Officers Vaughn and Cooke.

Chattanooga Police Officer Awarded $680,000 for Wrongful Termination by City

The reports that a Federal Court jury on Thursday awarded $680,000 in damages to a former Chattanooga Police Officer who was terminated related to Post Traumatic Stress Disorder from his service in Iraq. The award against the city of Chattanooga was for Mickel Hoback. Here is more on the case.

Attorneys Phil Lawrence and Michael Richardson said he served well as a police officer from 2000 to his time in the service from June 2004 to December 2005. He then returned to the police force.

Then-Police Chief Freeman Cooper terminated him when he learned that he had been involuntarily committed to a Veterans Administration facility.

Tuesday, September 13, 2011

Suit Against City of Chattanooga and the Chattanooga Police Dept. Begins in Federal Court

Plaintiff, Mickel Hoback, a former Chattanooga Police Department Officer is suing the City of Chattanooga for $1.5 Million claiming the City violated his rights under the Americans with Disabilities Act when he was wrongfully terminated from the department for having Post Traumatic Stress Disorder (PTSD). Hoback served one year in Iraq, returning to work with the CPD in 2006. According to the federal complaint, former Chief of Police Freeman Cooper fired Hoback in 2009 upon learning of his PTSD.

During his cross-examination on Tuesday, Hoback admitted that he spoke to a counselor in 2009. During these sessions he admitted that his counselor suggested Mr. Hoback pursue a less stressful profession. He also admitted that he is on regular medication for his PTSD.

Once Chief Cooper learned of Hoback's condition, he ordered Hoback to undergo a mental evaluation with a city-contracted psychiatrist. Hoback was deemed unfit for duty after this evaluation. However, according to Hoback, he saw two other psychiatrists after this evaluation and was told he was fit for duty.

Hoback is asking for his job back with backpay and benefits, as well as $1.5 million for "humiliation and embarrassment, invasion of privacy, emotional pain and suffering, and mental anguish."

The trial will continue on Wednesday morning.

Sunday, September 11, 2011

U.S. Supreme Court to Examine the Constitutionality of Unreliable Eyewitness Identifications

As we continue to preview the upcoming season of the U.S. Supreme Court, we will take a look at the case of Perry v. New Hampshire. This case presents the question of whether police misconduct is required to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. Perry was identified by a witness to a burglary during an interview at her apartment by an officer. When asked the first time for a description of the perpetrator, the witness stated it was a "tall black man." When the officer asked for a more detailed description, the witness looked out her door, pointed to Perry and stated the perpetrator was the man standing with another officer in the parking lot.

Normally, when eyewitness identification is excluded for due process violations, it involves police misconduct. For example, police sometimes make picking the suspect out of a line-up unnecessarily easy. If the suspect is a tall and skinny black male, the line-up may consist of white males and heavy-weight black males; picking out the suspect becomes extremely easy for the witness regardless of whether they actually recognize the suspect.

Both parties in Perry's case agree that there was no police misconduct in this situation. However, the witness' identification was highly suggestive since her only option was a tall black man standing next to a police officer. Perry argues that the purpose of excluding highly unreliable evidence at trial is to preserve evidentiary integrity, not to deter police conduct. Based on this argument, whether there is police misconduct should be immaterial.

Given that argument, the future ruling of the Supreme Court may seem pretty clear. The problem, however, is that a favorable ruling for Perry would call into question tons of evidence that has previously been introduced in many trials. If the government violates the defendant's due process rights just by admitting unreliable evidence, then an increased number government witnesses will be barred from testifying.

Many witnesses for the government are not just innocent bystanders to a crime. It is not uncommon for a co-defendant to testify against the defendant at hopes for receiving a lenient plea agreement. Does the fact that the co-defendant may have an incentive to testify for the government make this testimony unreliable? Maybe. Should the fact that it may be unreliable warrant its exclusion? I'm not sure it should go that far. It is the job of the jury to weigh the evidence in order to determine the correct verdict. Instead of taking that job away from the jury entirely, a possible solution might be to educate the jury to the general unreliability of eyewitness testimony. With more knowledge of the potential for unreliable eyewitness identification, the jury may be able to make a more informed decision when deciding whether to give credit to the testimony.

This will no doubt be an important issue before the Supreme Court, and we will continue to watch its progress.

Saturday, September 10, 2011

Sixth Circuit reverses on whether Michigan’s abolition of the Death Penalty is a “Mitigating Factor” that the jury may consider

In this Sixth Circuit appeal the Court considers whether Michigan’s long standing abolition of the Death Penalty is a “Mitigating Factor” that the jury may consider? There are no cases previous to this one that have ruled in a federal death case on the question of permitting evidence or argument concerning a given state jurisdiction’s policy against the death penalty. Here the Court reverses and holds that it is a relevant consideration for the jury and orders a new penalty phase of the trial.

The facts are that  Marvin Gabrion was accused of raping Rachel Timmerman in August 1996. Then he murdered her and her infant daughter in June 1997 while awaiting trial in state court for raping her. The jury verdict at the guilt phase of Gabrion’s federal murder trial accepted the government’s evidence that Gabrion bound Rachel Timmerman with chains during the first week of June 1997, took her while alive in a small boat, and dumped her into Oxford Lake with cinder blocks to weigh her down. Her bloated, drowned body was found on July 5, 1997, after it had been in the lake for several weeks. The lake was a shallow swamp filled with vegetation so that the body would stay where it was dumped from the boat and would not be carried to another location by a current or wind. The body was within the Manistee National Forest, hence federal jurisdiction, 227 feet south of the boundary. Timmerman’s eyes and mouth were covered with duct tape wrapped around her head. In addition to overwhelming circumstantial evidence, three witnesses testified that Gabrion had made statements to them incriminating himself in Timmerman’s murder.

The Federal trial court engaged in this colloquy with the prosecutor early in the case:

Prosecutor: . . . They’ve [the capital punishment decision makers in the Justice Department] told us that they do not factor into their consideration the fact that a case might come from a state that does not recognize the death penalty as opposed to a state that does.

COURT: Well, I’m not — I don’t want to argue with you, but I want to pose this question. Shouldn’t it make a difference? The people of the State of Michigan are ultimately sitting on the jury. The people of the State of Michigan are ultimately the ones of which this judge and the prosecution team and the defense team are comprised. Under a system of federalism, aren’t the state’s public policy considerations of some significance to the Department of Justice.

In reversing the death penalty decision the court made the following observations and findings.
At the sentencing phase of a death case the question is not a semi-technical question like a sentencing enhancement issue under the U.S. Sentencing Guidelines. The death penalty is never a “mandatory minimum.” In such a case each juror must call on individual judgment drawn from a lifetime of experience and learning and must decide whether to impose the death penalty or a life sentence. The broad, multi-dimensional question of the death penalty is also the reason the error in this case cannot be said to be “harmless” under the doctrine of “harmless error.” (18 U.S.C. § 3595(c) provides: “The court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.”) We have no way of knowing beyond a reasonable doubt what one or more jurors would have done after listening to a lawyer arguing for life by effectively using Michigan’s longstanding policy to buttress the argument, even with respect to a murderer as vile as Gabrion. Accordingly, we reverse on this issue for a new penalty phase of the trial.

Thursday, September 8, 2011

Revoked License Conviction Overturned--note to DUI practitioners

In this Williamson County case Richard Brown contends (1) that the trial court improperly found him guilty of driving on a revoked license when the indictment charged him with driving on a suspended license and (2) that he could not be convicted of driving on a revoked license because the Department of Safety never revoked his license.

On May 3, 2010, the trial court held a bench trial. The State and the Defendant stipulated to the following facts: The defendant was convicted of Driving Under the Influence on March 5, 2008, and sentence imposed on September 15, 2008, and under special condition on the judgment was entered “2 year license suspension.”  Assistant Attorney General Kelly Lawrence observed the defendant driving on October 9, 2008, and caused an arrest warrant to issue for Driving on a Suspended License, and the defendant was taken into custody pursuant to that warrant. The defendant was indicted for Driving on a Suspended License on July 13, 2009. The Department of Safety shows no formal action suspending the defendant’s license from March 5, 2008 to present and shows that [the defendant] had and still has a valid license. The trial court took [the defendant’s] license after conviction for the DUI second offense referenced above. The clerk’s office returned the license to Mr. Brown pending appeal.

Based upon these facts, the trial court convicted the Defendant of driving while his license was revoked with a prior DUI conviction.  The Court of Criminal Appeals reversed and dismissed the charge against Mr. Brown.

Because driving under the influence is a serious offense which can result in tragic and life-altering consequences for the defendant and innocent victims, we understand the legislature’s decision to create two separate and distinct methods of banning a defendant from driving. One is a prohibition on driving issued by the trial court and meant to serve as a punishment for the defendant’s DUI conviction. The other is an administrative action revoking the defendant’s driver’s license and meant to protect the citizens of Tennessee. It is baffling to this court as to why the legislature chose not to include the trial court’s prohibition on driving as part of section 55-50-504 in order to criminalize violations of the prohibition. However, the statute is clearly limited to the Department of Safety’s power to revoke, suspend, or cancel a license. Because the Defendant’s license was never actually revoked by the Department of Safety, he could not have been convicted of driving on a revoked license. Accordingly, we reverse the judgment of the trial court and dismiss the Defendant’s conviction for driving on a revoked license.

Tuesday, September 6, 2011

TN Court of Appeals Reverses Especially Aggravated Robbery Conviction of Defendant in Famous Valentine's Day Massacre Case

The Tennessee Court of  Criminal Appeals recently decided a case involving one of the Defendants in the infamous Valentine's Day Massacre from Bradley County, TN in 1999. One of the defendants, Twanna Blair (Ms. Blair was represented by Davis & Hoss), was acquitted of all charges after a jury trial. Another Defendant, Maurice Johnson, was convicted of one count of especially aggravated robbery and three counts of first degree murder in the perpetration of an especially aggravated robbery. He was sentenced to life without the possibility of parole for each of the felony murder convictions and to twenty-five years for the especially aggravated robbery appeal. The third defendant, Michael Younger, was represented by John Cavett and Kim Parton. Mr. Younger's trial ended in a mistrial after egregious prosecutorial misconduct. The state then dismissed the case against Younger.  This appeal deals with the conviction of Maurice Johnson.

The Defendant argued on appeal, among other things, that the evidence was insufficient to sustain his convictions. Specifically, he argued that the State did not adequately prove that he was in the process of robbing the victims when they were killed. According to him, he was robbed and beaten a few weeks before a party in early February of that year. He suspected that the person who robbed him was OJ Blair, one of the victims of the murders. On the night of the murders, he admits to going to the victims' residence to "get his money back" from the person who robbed him. Johnson argued that the State's only mention of money in this transaction was Johnson's own statement to "get his money back"; citing to other case law, Johnson argued that the owner of the money was Johnson himself rather than OJ Blair. The precedent used, State v. Goins, stated that "the State must show that the property is owned by someone other than the defendant." Without adequate proof, Johnson argued, his convictions should be reversed.

The Court responded to this stating that the TN criminal code defines an "owner" as,
"a person, other than the Defendant, who has possession of or interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exert control over the property."
Under this definition, OJ Blair is not required to be in lawful possession of the money. In this case, OJ was in possession of the money, and the defendant had no authority to exert control over the money. The Court held that a rational trier of fact could have concluded that Johnson committed the three murders in the perpetration of an attempted especially aggravated robbery. The evidence at trial proved that the Defendant went to the residence on the day of the murders with the intent to take "his" money from OJ Blair. That is all the proof necessary to support the Defendant's murder convictions; i.e. murders that were committed in the perpetration of or attempt to perpetrate an especially aggravated robbery.

The Court further held, however, that Johnson's conviction for especially aggravated robbery should be reversed. The evidence presented at trial established that the robbery never progressed beyond an attempt. There is no evidence that the Defendant ever "obtained or exercised control over anything at the time of the homicides." The evidence presented was that nothing in the apartment seemed to be ransacked or disarrayed; there didn't seem to be any missing items in the house and there were no signs of a struggle. This evidence is sufficient, however, to support the lesser included offense of attempted especially aggravated robbery but the statute of limitations on that crime is eight years. Since more than eight years have passed since this incident, Johnson cannot be prosecuted for that crime.

In sum, while the Court agreed with Johnson that there was not enough evidence presented at trial to satisfy the especially aggravated robbery charge, there was enough evidence to satisfy the three murder convictions for a murder committed in the perpetration of an attempted especially aggravated robbery.

Universally Accepted Court Forms for Use in Divorce Cases Now Available Online

The Supreme Court’s new universally accepted court forms are now available online for Tennesseans to use in courtrooms across the state. These eight forms, which became effective September 1st, can be used in uncontested divorce cases without minor or dependent children.

The forms are written in plain language and come with a set of instructions to make it easy for Tennesseans to read and understand the information. The Supreme Court adopted these forms in July as part of its ongoing efforts to improve access to justice in Tennessee.

Because the forms are approved by the Supreme Court, courts across the state are required to acknowledge and accept the submission of these forms if they are filled out properly.
The forms may be downloaded here.

The forms will also be available on the Court’s new Justice for All website,, which will be launched in the coming weeks.