Haslam Appoints Frierson to Tennessee Court of Appeals

Tennessee Gov. Bill Haslam today appointed Thomas R. “Skip” Frierson, II as a judge for the Tennessee Court of Appeals, Eastern Section.

Frierson replaces the Hon. Judge Herschel P. Franks, who retired at the end of 2012.

“Skip Frierson has spent the last 23 years serving in public office in East Tennessee, and he brings a wealth of experience to the bench,” Haslam said. “We are fortunate to have someone in this role with his qualifications and expertise.”

Frierson has served as chancellor in the Third Judicial District, which is comprised of Hamblen, Greene, Hawkins and Hancock counties, since 1996. In 1990, he was elected as Hamblen County General Sessions Court judge, serving in that capacity as judge of the Domestic Relations Court, Probate Court and as municipal judge for the City of Morristown.

He is a past president of the Tennessee Judicial Conference and serves as chairperson of the conference’s Tennessee Judicial Family Institute. Frierson was elected a fellow of the Tennessee Bar Foundation in 2007 and served as president of the Tennessee Trial Judges Association from 2007-2009. He was honored as “Trial Judge of the Year” by the American Board of Trial Advocates, Tennessee Chapter in 2000.

“I am deeply honored by the trust and confidence which Gov. Haslam has placed in me in making this appointment,” Frierson said. “I’m grateful for the opportunity to serve the state on the Court of Appeals, and I will give my full effort and commitment to performing the duties of judicial office diligently and impartially while promoting trust and confidence in the Tennessee judiciary.”

Frierson, 54, attended Walters State Community College and graduated Phi Beta Kappa from the University of Tennessee, Knoxville in 1980, earning his J.D. from the University Of Tennessee College of Law in 1983.

He and his wife, Jane, have three children, Reagan Lea, Parker and Garrett, and they are members of the First United Methodist Church of Morristown.

Defendant Charged with Animal Cruelty Denied Pretrial Diversion

By Stevie Phillips

On January 23, Justice Lee authored a unanimous Tennessee Supreme Court opinion in Stanton v. State of Tennessee.

In sum, Stanton, a farmer in Warren County, was indicted under T.C.A. 39-14-202(a)(2) on 16 counts of animal cruelty for the intentional or knowing failure to provide necessary food, care, and shelter to horses.  Stanton pled not guilty and applied for pretrial diversion pursuant to T.C.A. 40-15-105(a)(1)(A). The Assistant District Attorney denied Stanton’s application. Stanton filed a petition for writ of cert in the trial court, which found that the ADA had not abused his discretion. The TSC affirmed. 

The Court’s analysis centers on a prosecuting attorney’s “exclusive” discretion to grant or deny pretrial diversion.  Prosecutors will find this opinion helpful because it clearly states what they need to do to ensure that a denial of pretrial diversion withstands scrutiny on appeal.  

Specifically, the prosecuting attorney must consider all factors, including “the circumstances of the offense; the defendant’s amenability to correction; any factors that tend to accurately reflect whether the defendant will become a repeat offender; the defendant’s criminal record, social history, and physical and mental condition; the need for general deterrence; and ‘the likelihood that pretrial diversion will serve the ends of justice and the best interest of both the public and the defendant.’”

In addition, a prosecutor's denial must be in writing.  The written denial must enumerate the factors considered, provide a factual basis for each factor, enumerate the weight accorded to each factor, and identify any disputes between the evidence relied upon by the ADA and the evidence in the application filed by the defendant. 

Finally, the Court noted that it had not previously addressed whether a defendant’s failure to take responsibility might serve as a basis for denying pretrial diversion.  The Court concluded that “a defendant’s unwillingness to admit wrongdoing and assume responsibility for his or her actions is relevant in assessing a defendant’s amenability to correction and whether pretrial diversion will satisfy the need for deterrence and serve the ends of justice.”  

CCA Judge Thomas Dissent on failure to advise state of defendant's acceptance of plea

In State v. Pye, Judge Kelly Thomas disagrees "with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision."

As a general rule, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, --- U.S. ---, 132 S. Ct. 1399, 1408 (2012). By allowing a plea agreement offer “to expire without advising the defendant or allowing him to consider it,” defense counsel renders constitutionally ineffective assistance to the defendant. Id. The converse had also been held to be true, “that defense counsel does have a duty to communicate an accepted plea to the State in a timely manner, i.e., before the plea offer expires.” Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); see also United States v. Gonzalez-Vazquez, 219 F.3d 37, 41-42 (1st Cir. 2000) (finding that the defendant likely had a claim for ineffective assistance of counsel where his defense counsel failed to accept a plea offer as instructed, allowing the offer to lapse); cf. Nichols v. State, 683 S.E.2d 610, 613 (Ga. 2009) (concluding that defense counsel was not ineffective in failing to communicate the defendant’s decision to accept a plea agreement where defendant did not make decision until after the offer had lapsed). To hold otherwise would mean that defense counsel’s duty to communicate plea offers to the defendant “would have no point if the duty to communicate the acceptance of the plea offer to the State is not also in place.”

TN Supreme Court Refuses to Overturn Man’s Felony Murder Conviction

The Tennessee Supreme Court recently denied an appeal by a man from Knoxville attempting to have his felony murder conviction overturned. The man, Travis Kinte Echols, had been sentenced to life in prison and appealed claiming that there had been a number of errors during his trial.

Echols claimed that the trial court failed to suppress a statement the defendant made to the police which he said was the product of an unlawful arrest. Echols appealed his case to the Tennessee Court of Criminal Appeals which found that the arrest lacked probable cause. Despite the unlawful arrest, the Court of Appeals said that the statement qualified as harmless error and thus did not serve as grounds for reversal.

Echols appealed again and the Supreme Court agreed to hear the case. In a unanimous decision, the justices rejected Echols’ argument that his conviction should be reversed because the police did not have probable cause when they arrested him back in 2005.

Echols was arrested and ultimately convicted of murdering Robert Steely in the parking lot of the Townview Towers apartment complex in East Knoxville. During his interrogation, Echols waived his right to remain silent and, in the course of a conversation with officers, admitted to shooting Steely, but said that he only did so in self-defense. Specifically, Echols admitted to shooting Steely and then disposing of the weapon. This claim of self-defense did not ring true to the jury and they found him guilty of felony murder during a robbery of Steely, ultimately sentencing him to life in prison.

The Supreme Court heard the case and disagreed with the Court of Criminal Appeals. The High Court ruled that the police were able to establish probable cause for the warrantless arrest of Echols and, given this probably cause, the statement Echols later made to investigators was admissible at trial. The Supreme Court did find that the trial court incorrectly limited cross-examination of two witnesses, but that these errors were harmless and did not affect the final result of the trial. As such, the judgment of the lower court convicting Echols of felony murder was upheld.

To read the full opinion, click here.

State v. Bise: New Standard of Appellate Review of Sentencing Decisions

By Stevie Phillips

In a unanimous Tennessee Supreme Court opinion handed down on September 26, Chief Justice Wade outlines the historical development of state and federal sentencing guidelines.

In short, he observes that the 2005 amendments to Tennessee's 1989 Sentencing Act were passed for the purpose of bringing our sentencing scheme in line with United States Supreme Court sentencing decisions, namely Apprendi and its progeny.  This is the first time since the passage of those amendments that the Tennessee Supreme Court has had an opportunity to address the effect of those Supreme Court decisions on Tennessee's standard of appellate review. 

In the view of the Court, the effect is that "de novo appellate review and the 'presumption of correctness' [has] ceased to be relevant.  Instead, sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a 'presumption of reasonableness.'"

You can read the full opinion here. 

The Tennessee Supreme Court on Passing Worthless Checks

By Stevie Phillips

Justice Janice M. Holder, in a unanimous decision of the Tennessee Supreme Court, held yesterday that the misdemeanor "crime of passing worthless checks involves an element of dishonesty or false statement" and can therefore be used to impeach a defendant's credibility so long as its probative value outweighs its prejudicial effect.

Under Tennessee Rule of Evidence 609(a)(2), a witness may be impeached with a prior conviction if the crime involves dishonesty or false statement.   Here, the defendant, Wanda F. Russell, argued that an honest mistake can result in a conviction for passing a worthless check.

In determining whether a crime qualifies, a court assesses the elements of the offense, not the circumstances surrounding its commission. Here, the Court applied the rules of statutory construction to the statute setting out the crime of passing worthless checks, Tennessee Code Annotated section 39-14-121(a)(1). The Court concluded that the statute only criminalizes dishonest conduct, not honest mistakes.

Read the full opinion here.

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The CCA, Tenn. R. Evid. 803(26), and Prior Inconsistent Statements as Substantive Evidence

By Stevie Phillips

In State v. Ackerman, the Tennessee Court of Criminal Appeals addressed Tennessee Rule of Evidence 803(26), a hearsay exception adopted in 2009 that allows admission of some prior inconsistent statements as substantive evidence. 

The Rule states that the following are not excluded by the hearsay rule:

A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:      

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.                                                                                                                                                                    

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.                                                                                                             

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

The CCA emphasized that

[t]o be admissible as substantive evidence via Rule 803(26), a statement must first be admissible as a prior inconsistent statement via Rule 613(b). That rule provides that ‘[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

The admissibility of a prior inconsistent statement as substantive evidence will often turn, therefore, on whether the witness testifies in an inconsistent manner.  As the CCA explained, the witness must deny the statement, equivocate about having made the statement, or testify inconsistently and then testify that he or she does not recall making the prior inconsistent statement.  Finally, the court noted that nothing in Rule 803(26) “permits the admission of a witness’s prior statement in its entirety.”

The full opinion can be found here. 

TN Court of Criminal Appeals Rejects Petition From Defendant With Life Sentence

• State of Tennessee v. David Edward Niles

The Tennessee Court of Criminal Appeals recently rejected a petition from a man serving a life sentence for first-degree murder. The defendant, David Edward Niles, was convicted in January of 2010 for the death of Laura Parker. Niles claimed that circuit Court Judge Robert Crigler erred by denying his motion to suppress evidence that was sized during the search of his residence. Niles also said there was not sufficient evidence to convict him and that the judge abused his discretion in denying a motion for money for a psychiatrist.

According to the appeal, public defenders working for Niles discovered he had told one of his jailers that God told him to kill Parker because she was an unfit mother to their 4-year-old son. Niles then told his attorneys that he initially believed God told him this but later though it may have been the devil. 

Judge Crigler ruled that Niles had already been examined once and was found competent to stand trial. The Court here agreed, saying that Niles provided “only unsupported assertions” that a psychiatrist might have been of help in his case, failing to show that testimony from an expert was necessary in order to receive a fair trial.

Before his trial, Niles attempted to have evidence seized at his residence suppressed. A detective, Brian Crews, had asked Niles’ wife, Patricia, about ammunition for the gun her husband was found with the night of the shooting. Patricia allowed Crews and another detective to enter the home to get the ammunition. While they were in the house they found receipts for a replacement barrel and firing pins. Both items ended up being important pieces of evidence that were used to prove that he had planned the killing weeks in advance. 

Crews also asked if police could have a day planner and the computer at the home, but his wife objected saying she needed it for schoolwork. The detective ended up making copies of both. The Court decided that Mrs. Niles freely, specifically and intelligently gave her consent to the search. The day planner and computer were never used as evidence so the issue regarding their copying is moot. 

The Court of Criminal Appeals also said that the record of the case showed that there was “overwhelming evidence of premeditation,” including evidence indicating that an attempt was made to conceal the crime prior to the murder. 

Niles confessed to another one of his jailer’s that he had done research on the internet about how to defeat ballistics testing by using a replacement barrel and firing pin. Thus the Court found that “there was sufficient evidence supporting Niles’s conviction for first degree premeditated murder.”

To read the full opinion, click here. 

See Our Related Blog Posts:

TN Court of Criminal Appeals Says Petition Regarding 1988 Drug Conviction is Moot

Tennessee Court of Criminal Appeals Finds Career Criminal Not Entitled to Alternative Sentencing

The Tennessee Court of Criminal Appeals on Split Confinement

By Stevie Phillips

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.  

Tennessee Court of Criminal Appeals Finds Career Criminal Not Entitled to Alternative Sentencing

by Bryan Hoss

• State of Tennessee v. William Henry Wiggins

The defendant, William Henry Wiggins, was convicted in Davidson County Circuit Court of felony possession of a controlled substance, in this case oxycodone, and a violation of the state’s sex offender registry. He was ordered to serve a six-year sentence in prison which he then appealed claiming insufficient evidence and an excessive punishment. The Court of Criminal Appeals reviewed the case and affirmed the trial court’s initial decision. 

When Wiggins was indicted for possession and a sex offender registry violation the grand jury indictment indicated his five prior convictions for unlawful possession of a controlled substance. The evidence presented at trial consisted of testimony by officers that they observed a car where Wiggins was the passenger cruising a gas station in search of drugs. When the officers pulled the car over and ran the driver’s and passenger’s names against their database they discovered Wiggins had a warrant out for a sex offender registration violation. When he was arrested, Wiggins admitted to having some pain pills given to him by the driver of the car in exchange for gas money. 

On appeal Wiggins claimed that the state failed to show that he knowingly possessed a controlled substance, believing them to be “pain pills” and not a controlled narcotic. The Court pointed out that Wiggins did not dispute that he possessed the pills or that oxycodone is a controlled substance, he only claimed that he did not know what he was given was oxycodone. The Court disagreed, citing evidence of a prescription label found in the car Wiggins was arrested in and Wiggins’ own statements to officers concerning the pills he had in his pocket. 

Regarding Wiggins’ contention that the length of confinement was too severe, the Court noted that the trial court found him to be a Range III, career criminal and thus not a good candidate for alterative sentencing. The trial court considered the possibility of probation but rejected it in favor of the minimum prison sentence allowed for his crimes. The Court of Criminal Appeals noted that Wiggins does not admit to having a drug problem, making rehabilitation next to impossible. Given his status as a career criminal, the Court found Wiggins’ initial sentence proper.

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Discusses Factors for Determining Whether a Plea was Voluntary and Intelligent

TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

TN Court of Criminal Appeals Says Petition Regarding 1988 Drug Conviction is Moot

• Joby Lee Teal v. The Criminal Court of Shelby County, Tennessee

Joby Lee Teal, a pro se petitioner, sought declaratory judgment concerning the legality of his five 1988 convictions for drug offenses and resulting concurrent five-year sentences. He argues the sentences are void because he committed them while on bail and should have received consecutive sentences. The Criminal Court of Shelby County found that such relief was not available because the five concurrent sentences had expired and the Court of Criminal Appeals agreed. 

The plea deal was struck with deal in November of 1988 and his negotiated sentence expired in 1993. It’d odd then that so many years later, in 2011, Teal filed a pro se petition attacking the five-year sentences he received back in the 80s. He claimed the original trial court did not have jurisdiction to enter concurrent sentences for felony offenses he committed while released on bail. 

The Court of Criminal Appeals discussed the state’s Declaratory Judgment Act, found in Tennessee Code Annotated Section 29-14-102, which states:

1. Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
2. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.
3. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.

The Court said that Tennessee law is clear that in order to maintain an action for declaratory judgment, a justiciable controversy must exist. The question before the court must be a real one, not simply a theoretical one. The Court says that even a simple review of the records shows that Teal’s claim is moot because it lost its “character as a present, live controversy.” 

Because Teal did not pursue this remedy during the time available to him and because he has long since completed the sentence about which he now complains, the Court can do nothing today. Apparently the return address on Teal’s brief indicated he is currently residing at the Federal Correctional Institute in Memphis, Tennessee. The fact that he is currently incarcerated on unrelated charges does not help the fact that the underlying claim before the court is moot.  

To read the full opinion, click here.

See Our Related Blog Posts:

Tennessee Court of Criminal Appeals Discusses Factors for Determining Whether a Plea was Voluntary and Intelligent

TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

State v. Anderson – The Tennessee Court of Criminal Appeals Reverses a Finding of Exigent Circumstances

By Stevie Phillips

Deputies were dispatched to Stoney Anderson’s neighborhood at about 1 a.m. in response to an unknown disturbance involving shots fired.  They encountered a car leaving Anderson’s home.  The occupants told them that they were coming from a small get together and had not heard any shots.  Nonetheless, the deputies proceeded to Anderson’s home and walked around to the back of the house.

As the deputies were walking onto the back deck, Anderson exited the house holding a duffle bag.  When asked, he told them that he had not heard any shots.  At this point, however, the deputies could smell marijuana and saw several people sitting at the kitchen table.  They then entered Anderson’s home and eventually searched the duffle bag where they found marijuana and paraphernalia. 

Before trial, Anderson moved to suppress the evidence found in the bag.  The trial court denied his motion on the basis that exigent circumstances existed to justify the warrantless search, namely that the deputies were responding to an immediate risk of serious harm to themselves and others based on their concern that the bag contained a weapon. 

On appeal, Anderson argued that, even if there were exigent circumstances, those circumstances could not support the search of his bag because the deputies created the exigency when they unconstitutionally intruded into the curtilage of his home.  The Court of Criminal Appeals agreed.

In the Court’s analysis, Anderson’s back deck was “an area to which the activity of home life extends” and therefore plainly within the curtilage of his home.  The Court also determined that the deputies’ intrusion onto the deck without a warrant was unreasonable because they had no information connecting Anderson’s house to the disturbance.  Because any risk to the deputies’ safety resulted from their violation of Anderson’s constitutional rights, even a reasonable fear for their safety could not support the search of Anderson’s bag.

In sum, the exigent circumstances exception to the warrant requirement does not apply if the police themselves create the exigency.  Kentucky v. King, 131 S. Ct. 1849, 1857-58 (2011).  Case dismissed. 

The full opinion can be found here. 

TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

by Lee Davis

• State of Tennessee v. Barry D. McCoy

The State of Tennessee appealed a lower court’s ruling denying their request to admit evidence of a video-recorded interview of a minor victim. The Court of Criminal Appeals held that the lower court made a mistake by reaching the constitutional question before it was ripe for review and the ruling was vacated and remanded for reconsideration. 

Barry D. McCoy was charged with seven counts of rape of a child and submitted to a bench trial. The state moved to introduce a video interview of the victim as evidence. McCoy objected and the lower court ruled that it would not be admitted on three grounds: 1) the video was hearsay and was not covered by any exception; 2) admission of the video would violate McCoy’s right to confront a witness against him; and 3) the code at issue in the case, T.C.A Section 24-7-123, was unconstitutional as legislative overreach into judicial authority. The court believed that by enacting such a statute the legislature had violated the separation of powers doctrine by engaging in what is clearly a judicial function.

The Court of Criminal Appeals says that lower court jumped ahead of itself. The court should not have ruled on the constitutionality of the statute without first having reviewed the video recording to determine whether it would actually qualify for admission under the terms of the statute. The court could not know then if the statute was applicable to the case. If it didn’t apply,  then the constitutionality of the statute is moot. Because the trial court did not determine the statute’s applicability to the video in this case, the Court found that the constitutional challenge was not yet ripe for review and the lower court’s ruling was vacated. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Says that Post-Conviction Petitions Must Contain Specific Facts, Defendants Can’t Simply Check Boxes

Tennessee Court of Criminal Appeals Affirms Revocation of Probation for Weapons Possession

Tennessee Court of Criminal Appeals Affirms Positive Drug Test Means Incarceration

by Lee Davis

• State of Tennessee v. Terry Maurice Thomas

Terry Thomas appeals the revocation of his community corrections sentence in a recent case before the Tennessee Court of Criminal Appeals, claiming that the trial court erred by ordering him back to confinement for a twenty year sentence after a failed drug test. The Court here found no issue with the trial court’s ruling and affirmed it. 

Thomas was charged with possession of more than .5 grams of cocaine in a school zone, intent to sell, possession of drug paraphernalia, carrying a knife with a blade longer than four inches and driving on a suspended license. He pled guilty and was given a 20-year sentence to be served on community corrections. 

In April 2011 a violation warrant was issued for Thomas after he tested positive for additional cocaine use. At the revocation hearing the community corrections officer, April Story, discussed how Thomas tested positive during a drug screen earlier that month. Thomas never asked for a second, confirmation test and Ms. Story admitted that besides the one positive test and occasional spotty attendance at drug treatment classes, Thomas had been in compliance with the rest of the terms of his sentence. 

Thomas claims to have been shocked by the positive test, denying he used cocaine. He said he had been working as an apprentice for an electrician and attended HVAC classes at night. He said friends had used the drug at his home recently but he had not shared in the experience. Thomas did admit to not living with his father as he had said he would and to not attending Bible college as promised. He further admitted to spotty drug treatment attendance but blamed his rigorous work schedule. 

The trial court considered the matter carefully and ultimately decided to revoke his community corrections placement, ordering that he serve the balance of his time in confinement. The court deemed the defendant’s testimony at the revocation hearing “not credible” and said it had to act to protect the health and safety of the citizens of Tennessee. 

The defendant believes the lower court abused its discretion by ordering him back to confinement and turned to the Court of Criminal Appeals for help. The Court mentioned that despite Thomas’ shock at his positive test he never took the next step of asking for a retest or even contesting the result. The Court held that the record supports the trial court’s decision and, as Thomas had been shown plenty of leniency by the judicial system, the Court was not inclined to give Thomas relief. 

To read the full opinion, click here.

Earlier: 

Tennessee Court of Criminal Appeals: Probation Revocation Fine if Not Done Arbitrarily

Sixth Circuit Court of Appeals: Sentence can be revisited if ‘based on’ revised crack cocaine guidelines

Davis & Hoss attorneys represent people in criminal cases in all courts in Tennessee.

Tennessee Court of Criminal Appeals Says that Post-Conviction Petitions Must Contain Specific Facts, Defendants Can’t Simply Check Boxes

by Lee Davis

• MICHAEL DESHAY PEOPLES, JR. v. STATE OF TENNESSEE

The Petitioner in this case, Michael Deshay Peoples, Jr., was indicted for first-degree felony murder, especially aggravated robbery and one count of aggravated kidnapping. A jury found Peoples guilty as charged and sentenced him to life in prison for felony murder. Other charges were given varying sentences determined at a sentencing hearing. Petitioner filed for post-conviction relief. 

Post conviction is little known outside of criminal law circles, this is the process by which a defendant challenges a conviction.  A defendant may challenge the validity of a conviction on constitutional or the effectiveness of his trial counsel--two common challenges. Post conviction challenges are made after exhausting the well known direct appeals process and may be made sometimes several years after the original conviction. Here the Court of Criminal Appeals found no error and affirmed the dismissal of Peoples’ petition. The discussion below concerns Peoples' post conviction challenge.

Peoples filed his petition for post-conviction relief and alleged, merely by checking boxes on a form--not by specifically detailing facts--that his convictions were based on evidence gained by an unconstitutional search and seizure and that he was denied effective assistance of counsel. The form required that he attach a separate sheet of paper containing facts support his petition, Peoples failed to attach such a document and gave no facts in support of the grounds he alleged.  It is not uncommon for individuals to start with this form an the courts allow it as many petitioners are incarcerated and are proceeding without counsel (pro se) at this late stage in their case.

This petition for post-conviction relief was dismissed because it failed to present a full disclosure of factual grounds in which relief would be appropriate. Tennessee law allows for the dismissal of such complaints when the necessary facts have not been specifically alleged. That’s precisely what took place in this case.

People’s claims he should have been allowed to amend his petition to bring it into compliance. The Court of Criminal Appeals said that Peoples made no attempt to comply with the statutory requirements for his post-conviction relief petition. Merely checking the boxes contained on the form does not comply with the requirement that specific facts be alleged in support of a petitioner’s claims. The Court of Appeals concluded that while lower courts should be more lenient in construing pro se filings, no courts should be required to ignore a failure to provide factual support for claims raised. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test

Tennessee cases on appeal are handled by the lawyers at Davis & Hoss, PC

Tennessee Court of Criminal Appeals Affirms Revocation of Probation for Weapons Possession

by Lee Davis

• STATE OF TENNESSEE V. NICHOLAS CLOWER

Nicholas Clower pled guilty to two counts of sale and delivery of less than 0.5 grams of cocaine. Clower was sentenced to six years’ probation for each count, to be served concurrently. Clower was rearrested and his probation revoked and ordered to spend the rest of his sentence in prison. He appealed, arguing that the trial court erred in determining that he possessed a weapon in violation of his probation. The Court of Criminal Appeals agreed with the trial court and affirmed the revocation of probation. 

A probation violation occurred in 2010 and Clower was accused of the manufacture, sale and delivery of cocaine, possession of paraphernalia, unlawful weapon possession, aggravated assault and domestic assault. Quite a long list of misbehavior for a parolee. 

Defendant claimed he wasn’t actually in possession of the gun, that it was merely in his possession. At his revocation hearing the Court held that defendant violated the terms of his probation by failing to report and moving without permission. The other issues include a weapon and that was found in close proximity to Clower and had his fingerprints on it.  The Court decided that this was sufficient for a preponderance of the evidence to find that possession of a handgun occurred, sufficient for a violation. 

The defendant asserted that the trial court erred by saying that he possessed a handgun. The Court of Criminal Appeals said that the State must only prove a violation by a preponderance of the evidence. Assuming there’s been no abuse of discretion the trial court’s decision will not be disturbed. 

The Appeals Court found that Clower was in close proximity to the weapon, his fingerprints were on the weapon and he initially admitted to holding the weapon. This was deemed sufficient information on which to base a decision, thus the trial court did not abuse its discretion. Furthermore, the other violations that were found to have occurred and would permit revocation regardless of the weapon possession issue.

To read the full opinion, click here. 

See Our Related Blog Posts:

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test

Chattanooga criminal defense lawyer Lee Davis practices in Tennessee trial and appellate courts.

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test.

by Lee Davis

Intoximeter

In State of Tennessee v. Gail Lynn Padgett, a Knox County woman was convicted of driving under the influence of an intoxicant (her fourth conviction), driving on a revoked license and two counts of disorderly conduct. The trial court sentenced Padgett to one year in jail with 150 days served in conferment and the rest on probation. Her license was revoked for five years and she was required to attend DUI school. 

Padgett has appealed, arguing that the evidence is insufficient to sustain a conviction, the trial court erred in denying her Motion to Dismiss for the State’s failure to preserve evidence and for denying her Motion to Suppress evidence of her actions to police due to lack of the probable cause necessary to have arrested her in the first place. The State Court of Criminal Appeals rejected Padgett’s claims and affirmed the ruling of the trial court.

Padgett first filed a Motion to Suppress arguing that video evidence attained by the arresting officer’s police car should be suppressed due to the lack of probable cause in arresting her. The facts showed the following: At a little after 8 in the morning on May 28, 2008, Officer James Wilson got a call about an accident. He arrived and testified that before exiting his vehicle he turned on the microphone and video recorder in his police cruiser. 

While speaking to those at the scene, Wilson hit a car passing by her driveway. Padgett started yelling that she was not in the wrong. Wilson allegedly observed Padgett stumbling and detected a very strong odor of alcohol on her breath. Based on this behavior he placed her under arrest. Because of Padgett’s erratic behavior he was unable to perform any field sobriety tests. Wilson later swore out a warrant for her arrest noting her slurred speech, glassy bloodshot eyes and her unsteadiness while walking. Wilson admits to not listing the smell of alcohol and explained that he must have just forgotten to write it down. The trial court agreed that Officer Wilson had probable cause to arrest Padgett for disorderly conduct, not DUI, and denied Padgett’s Motion to Suppress.

Padgett then filed a Motion to Dismiss due to lack of evidence. No blood alcohol test was ever performed nor was a Breathalyzer test administered. Wilson claims this was because of Padgett’s wild behavior following her arrest. The trial court again denied Padgett’s Motion and decided to proceed. 

At trial much the same evidence was discussed. The video and audio recordings were also admitted into evidence and seemed to support much of what Officer Wilson had testified to. 

On appeal, Padgett contends that because no field sobriety tests were performed there can be no evidence to support a DUI conviction. The State counters by saying that other evidence supports such a conviction. The Court of Criminal Appeals agreed with the state, citing the three witnesses who testified to Padgett’s appearance and behavior that day. Such evidence is adequate for a reasonable trier of fact to conclude that she was under the influence and a field sobriety test is not required to support a DUI conviction.

With regard to Padgett’s Motion to Dismiss, the Court of Criminal Appeals says that there is no duty by an officer to administer a blood alcohol test. The only requirement is that if such a test is not administered, then that failure shall be “admissible in evidence in a criminal proceeding.” T.C.A. Section 55-10-407(b). Here that hurdle was cleared as the jury was fully informed during both direct and cross-examination that Wilson did not request that Padgett submit to a blood alcohol test. 

Turning to the Motion to Suppress, the Court says that Wilson had sufficient probable cause to justify an arrest for disorderly conduct and that Wilson did not have to explain to Padgett that she was being arrested for such a charge in order to make the arrest valid. The Court went further in saying that Wilson did have probable cause to arrest Padgett for DUI. Under T.C.A. Section 40-7-103(a)(6), Wilson personally observed Padgett’s behavior and actions and believed she was intoxicated, thus granting him the probable cause necessary to arrest Padgett for DUI.

For the full opinion, click here.

Earlier:

Shocking Allegations Concerning Behavior of Knoxville Judge in Christian/Newsom Slaying

New Tennessee Campus Crime Report Released

Thirty-Seven Charges of Sexual Battery by an authority figure Reversed by Court of Appeals

• STATE OF TENNESSEE v. JIMMY DALE QUALLS

Judge Norma McGee Ogle of the Court of Criminal Appeals released an opinion today that reverses Hardeman County convictions of Jimmy Qualls for 37 counts of sexual battery by an authority figure. The problem with the trial and the reason for the reversal was because of the failure of the state to make an election of offenses.  Added to the state's failure was the failure of the trial court to cure the problem.  In its simplest terms, where the state alleges criminal sexual acts over a span of time, the state must specify (elect) what acts it is asking the jury to convict upon.  A general or vague accusation insufficient. 

This requirement of election is for five stated purposes: (1) it enables the defendant to prepare for the specific charge; (2) it protects a defendant against double jeopardy; (3) it ensures the jurors’ deliberation over and their return of a verdict based upon the same offense; (4) it enables the trial judge to review the weight of the evidence in its role as the thirteenth juror; and (5) it enables an appellate court to review the legal sufficiency of the evidence.

Here the state approached the case with a grab bag theory of justice. It alleged many bad acts over several months and it left it up to the jury to figure out what acts went with what dates. The Court recognized the problem with this approach. 

To illustrate the operation of this theory, in any given case the State could present proof on as many offenses within the alleged period as it chose. Because all such offenses will have been “proven,” the jury may, in effect, reach into the brimming bag of offenses and pull out one for each count. Even when done by this method, the argument goes, each offense will have been proven beyond a reasonable doubt. We acknowledge that the illustration is an extreme one, but we think it makes the point: such an approach is contrary to our law.

Based on the state's failure to elect appropriate offenses, the Court reversed the convictions and has ordered a new trial.

Tennessee Court of Appeals Reduces First Degree Murder Conviction

• STATE OF TENNESSEE v. DAVID HOOPER CLIMER, JR

Court of Appeals, Jackson, TN

The Tennessee Court of Criminal Appeals recently reduced the first-degree murder conviction of a Gibson County man accused of killing and dismembering his own mother. In this disturbing case, the state failed to include sufficient proof of premeditation to survive a challenge on appeal. However, the Appeals Court decided that there was sufficient evidence to support a lesser, second-degree murder conviction.

The case began in January 2008, when Climer led authorities to the remains of his mother, Dorris DeBerry. Climer had buried DeBerry in woods in northwest Madison County, Tennessee. Investigators believe DeBerry was killed in late November 2007 and that Climer buried her remains around December 5, 2007. The mother and son had lived together in a mobile home near Gibson, Tennessee prior to her death.

Climer admitted to authorities that he was responsible for dismembering his mother’s body, but was vehement that he had not killed her. He was sentenced to life in prison on the first-degree murder charge after a jury found him guilty and on the abuse of a corpse count. The abuse of a corpse charge was intended to run concurrently with his life sentence.

On appeal, Climer’s attorneys argued that the evidence was insufficient to support a premeditated murder conviction. Moreover, his attorney claimed that Climer was suffering from insanity when he decapitated his mother’s corpse. The insanity claim was rejected on appeal.


The Court noted, "that the parties’ opening and closing statements, in which the State would have argued its theory of the case to the jury, have not been included in the record on appeal. According to the State’s brief, the prosecution’s theory of the case was that the appellant killed his mother and dismembered her body and hid it to conceal his crime." Obviously, the Court struggled to find premeditation and when it could not find the proof included in the record, it was reluctant to infer it from the mere gruesomeness of the crime.  In a fairly unusual move, the court reversed the conviction for first degree murder absent sufficient proof of premeditation.

The Court reduced Climer’s conviction to second-degree murder and remanded the case to a trial court for resentencing. Climer’s conviction of abuse of a corpse was affirmed. His resentencing is set for early April in Humboldt County. Here is a link to the full opinion: STATE OF TENNESSEE v. DAVID HOOPER CLIMER, JR.

Read: “Climer sentence reduced: Court of Criminal Appeals overturned the first-degree murder conviction,” by Jordan Buie, published at JacksonSun.com.

Earlier:

Federal sentencing discretion under attack

GPS and Tracking Criminals in Tennessee

State's Failure to Elect Offenses Results in Reversal of 100 Year Sentence

• STATE OF TENNESSEE v. ROBERT CHARLES BROWN

Charlie Brown was convicted at trial of child rape from multiple counts and sentenced to a 100 year sentence. He asserts on appeal that the trial court should have required the State to make an election of offenses as required by the Tennessee Supreme Court in this child rape case. The State acknowledges that the trial court should have required the prosecution to make an election of offenses but argues that the error was harmless because the victim “recounted a single set of facts constituting the crime and testified that the same facts happened every time she visited the [appellant].” However, the State also acknowledges that this argument was squarely rejected by our supreme court in Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996). Trial Courts are required to strictly follow the law as set forth by our Supreme Court and cannot rule contrary to precedent established by that court even if they wish to do otherwise.

Here, the victim testified to repeated rape by the defendant but could not provide a single detail that differentiated one offense from another.  Since the state did not elect which counts that they were relying upon for the evidence, it violated precedent when it was submitted to the jury.

The State also argues that to require an election of offenses in this type of case “prevents the State from prosecuting defendants who have been successful in delaying disclosure of their crimes.” However, the TN Supreme Court has rejected this argument, stating, the rules of evidence and the rules of procedure have been relaxed to some extent to accommodate very young witnesses. Nevertheless, the constitutional protections guaranteed a criminal defendant, who is presumed by law to be innocent until proven guilty, cannot be suspended altogether because of the victim’s age or relative inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a single event, or prepare the case so that an election can be made before the matter is submitted to the jury to decide. 

The Court concluded that the trial court committed reversible error by failing to require the State to make an election of offenses.