Motion for New Trial may be amended

by Lee Davis

Justice Holder writing for the Court in State of Tennessee v. Charles E. Lowe-Kelley states that a motion for new trial may be amended by replacement counsel and the trial court retains jurisdiction for the motion despite the original motion's failure to cite any substantive grounds.

Charles Lowe-Kelley was sentenced following his conviction on two counts of first degree murder and nine counts of attempted first degree murder. Eighteen days later, his attorney filed a motion requesting a new trial and withdrew as counsel. The motion contained no specific grounds for relief. The trial court appointed replacement counsel.

Several months later, replacement counsel amended the motion for new trial to allege specific grounds for relief. The trial court denied the amended motion for new trial. The Court of Criminal Appeals held that the original motion for new trial was a nullity because it contained no grounds for relief and that the trial court therefore did not have jurisdiction to permit the amendment of the motion for new trial. The Court of Criminal Appeals therefore considered the defendant’s specific grounds for relief as waived.

The Tennessee Supreme Court holds that the original motion for new trial met the requirements of Rule 33 despite its failure to allege specific grounds for relief and that the trial court retained jurisdiction to permit the amendment of the motion.

In making this decision the court addresses a practical consideration that would have become a problem if left alone. When a trial lawyer is allowed to withdraw at the trial court level, it is often in the aftermath of a trial and before the lawyer or the defendant may be fully aware of any substantive grounds for seeking a new trial. The trial lawyer has performed his duty and for a host of reasons may want off the case. Trial judges routinely allow this. The lawyer should file the motion for new trial at the conclusion of representation with sufficient grounds alleged. In cases like this one, where the lawyer has not, it makes sense to allow new counsel the opportunity to amend the motion after further consideration. While the court of appeals may have been correct in its observation that a trial court no longer retains jurisdiction of a case when the final pleading is--in its words--a nullity, the result would cut off any defendant from relief by motion for a new trial. Perhaps not many people will have claims that bear consideration, but the Supreme Court is right to understand that those few who do should be able to press those claims beginning in the trial court.

The case is remanded to the Court of Criminal Appeals to consider the defendant’s appeal of the denial of his amended motion for new trial.

The Cochran Saga Continues: Two Deputies Suspended

By Stevie Phillips

To obtain an arrest warrant, an officer must submit a sworn affidavit to a judge outlining why there is probable cause to believe that the suspect has committed a crime.  Only after determining that there is probable cause does the judge sign the warrant. 

Judge Bryant Cochran, a Magistrate in Murray County, Georgia for the past eight (8) years, resigned from the bench on August 15th after an investigation by the Georgia Judicial Qualifications Commission confirmed that he was leaving pre-signed and undated arrest warrants for officers to use when he was not available to sign them. 

Cochran is quoted as saying, “I accept full responsibility for the warrants that were pre-signed.  This is SOLELY the reason for my resignation.”  However, one woman maintains that Cochran sought sexual favors from her in exchange for favorable rulings and another has reported that Cochran propositioned her after she sought help from him in a criminal matter.

Former Georgia legislator McCracken Poston represents the first of these women, Angela Garmley.  Garmley was a passenger in a car that was pulled over the day before Cochran resigned.  She consented to a search, and a drug dog found a magnetic container with drugs in it under the car.  Garmley maintains that she was unaware of the drugs and that they were placed there by someone else in an effort to frame her. 

Poston urged the Georgia Bureau of Investigation to conduct an investigation into the possibility that Cochran was involved in Garmley’s arrest because she had been cooperating with the state Judicial Qualifications Commission.  In recent news, the Murray County sheriff has suspended two deputies in connection with Garmley’s arrest.  It is unclear whether the Murray County District Attorney’s Office will bring criminal charges against Cochran or these deputies. 

TN Court of Criminal Appeals Rejects "Diversion" Appeal

By Jay Perry

The Tennessee Court of Criminal Appeals recently sided with the trial judge in rejecting a request for “judicial diversion” in State v. Krystal Bowman.  Judicial diversion refers to a process by which a trial court can defer proceedings in a criminal case.  What this typical means is that after a guilty plea the court will withhold judgment for the probationary period.  At the end of that period, if all of the provisions of probation have been complied with, the court will dismiss the case and the defendant may have his/her record expunged.

Judicial diversion is only available for defendants who have pled guilty (or been found guilty) of a Class C felony or less.  Furthermore, a defendant is only eligible for diversion if they have never previously been convicted of a felony or Class A misdemeanor.  Judicial diversion is a helpful option for people who find themselves before a criminal court for the first time.  It allows for such individuals to take responsibility for their actions while still having the opportunity to live the remainder of their lives without the awful burden of a criminal conviction on their record. 

Judicial diversion is not automatic, however, as State v. Krystal Bowman demonstrates.  The defendant in the case had originally been charged with five counts of forgery and one count of Theft over $60,000.  She only pled guilty to one reduced court, that of Theft over $10,000, a Class C felony.  The theft occurred from her employer who it was alleged she had been embezzling money from for over one year.  The total amount stolen was a matter of some dispute but as part of the plea the defendant agreed to pay $44,000 in restitution.  While the defendant in the case was eligible for diversion, the trial judge ruled against granting it at a sentencing hearing.  Central to the trial court’s rejection of diversion was that the theft had been ongoing over a long period of time.  It also noted that the theft had caused a large financial problem for her employer and even forced them to take out a $130,000 mortgage to stay in business. 

The Defendant appealed that decision and the appellate court reviewed the lower court’s decision under an “abuse of discretion” standard.  This means that the appellate court only reviews to ensure that the record contains any substantial evidence supporting the trial court’s decision.  In the end, the Court of Criminal Appeals agreed with the trial court noting that the defendant had been already been allowed to plead guilty to only one charge and that the “record support’s the trial court’s decision to deny further largess in the form of judicial diversion.”