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.”  

TN Supreme Court Reiterates Definition of “Serious Bodily Injury”

The Tennessee Supreme Court ruled in a recent opinion, State of Tennessee v. Michael Farmer and Anthony Clark, that a gunshot wound is not necessarily the same thing as a serious bodily injury. The state’s high court clarified the legal standards in an opinion published late last month in the case of two men found guilty of especially aggravated robbery for shooting a man in the leg during a 2008 Memphis robbery.

The victim, Terrell Westbrooks, was shot while trying to flee from the two burglars who burst into an apartment where he and a friend were illegally purchasing prescription painkillers. Westbrooks testified that he did not at first realize he had been shot, a through and through injury that left surprisingly little damage. In fact, Westbrooks said that he was treated at a hospital and released in around an hour.

The opinion, written by Justice Sharon G. Lee, said the prosecutors failed to show that Westbrooks was at risk of dying, lost consciousness or suffered extreme pain, disfigurement or substantial impairment. Those are the standards spelled out in the state statutes that define serious bodily injury. Tenn. Code Ann. § 39-11-106(a)(34) states that  “serious bodily injury” is defined as “bodily injury that involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; [or] (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.”

As a result of the failure to demonstrate the statutory definition, the Court threw out the especially aggravated robbery convictions for Anthony Clark and Michael Farmer. It instead ordered the trial court to sentence the two on the much less serious charge of aggravated robbery.

In a concurring opinion, Justice William C. Koch Jr. said the case demonstrated the need for criminal prosecutions going forward to use expert medical testimony when trying to prove serious bodily injury. “We should candidly acknowledge that some injuries which appear bloody and gruesome to laypersons may not have a substantial risk of death, while other injuries that are seemingly benign might, in fact, pose a substantial risk of death.”

To read the full opinion, click here.

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New Tennessee Campus Crime Report Released

By Jay Perry 


The Tennessee Bureau of Investigation (“TBI”) recently released their annual Crime on Campus Report for 2011.  This report contains an interesting look at crime on college campuses in Tennessee and merits some attention.  Overall, the number of reported crimes is up 4.2% from 2010 but is lower than those reported in 2009.  The most common crime reported was theft from a building which accounted for 21% of reported crimes.  Unfortunately, the number of assaults reported increased by 6.5% but thankfully the number of aggravated assaults was down 8.8% from a year ago.  Of most concern is that the number of “Forcible Sex Offenses” reported rose from 30 in 2010 to 44 in 2011, a one year increase of 46.7%.

Interestingly, the most likely day for the commission of a theft crime was a Thursday, with Sunday having the least number of reported offenses.  As far as drug crimes (1 in 10 crimes reported on college campuses were drug crimes), those happened (as could be expected) on Friday or Saturday nights between the hours of 9:00 P.M and 3:00 A.M.  As for alcohol crimes, the most common offenders were 19 year olds, and the number of male offenders was over double the number of females.  As an attorney who represents students charged with underage drinking I would be interested in seeing how common that specific charge is.  Unfortunately the report does not specify and just accounts for generic “liquor law offenses”.  The report also includes the crime of “drunkenness” which is not illegal in the state of Tennessee.  There is an offense for public intoxication in Tennessee but that charge means more than just being drunk in public with specific criteria that must be met.

Two colleges I was particularly interested in were the University of the South (or Sewanee, where I graduated) and the University of Tennessee-Chattanooga (our local university).  Sewanee appears to have a very high rate of burglaries and thefts but I think that the high number is partly due to the unique setting of the school.  The University’s campus is huge (over 13,000 acres) and encompasses a large amount of private residences and an entire community.  The campus police department is also the police department for that community and so I would it likely that many of the reported crimes don’t involve students or the campus directly.  The rate of “liquor law violations” is the highest by far of any college in the state (51 per 1,000) and indicates that at least part of the reputation of the school is accurate.  Again it would be interesting to know what specific violations these are especially in light of the Vice-Chancellor’s sensible stance on underage drinking laws.

The statistics from UTC are encouraging as they are fairly low especially given the campus’s urban location.  Especially low are the numbers of violent crimes reported although it is important to remember that any violent crime is devastating to the victim and to the community as a whole.  Again the number of liquor law violations is relatively high as the UTC rate is the fourth highest in the state.  However, the statistics in this report in the area of alcohol are a bit questionable as many campuses report zero incidents. 

            Overall, the report is fairly positive and many of the reported crimes are falling over a longer time frame.  For example, DUI violations have shown an overall decrease by 25.8% since 2008.  We can all hope that crime falls on college campuses (and everywhere else) and that are police resources are most utilized to combat those crimes that have the most damaging effects on our communities.

New Tennessee Legislation sought to combat gang problem

Local, state, and federal officials held a press conference in Chattanooga yesterday to announce the formation of the Chattanooga Area Gang Enforcement Team ("CAGE").  This team was created to address the recent outbreak in gang-related crime in the city and embraces both outreach and suppression efforts.  Among the options announced was the introduction of new laws including one that would create a criminal offense for being a gang member.  This bill (HB 2869) has just been introduced in the legislature and reads as follows:


(a)  It shall be unlawful for any person to actively participate in any criminal street gang, as defined by § 40-35-121(a) with knowledge that its members engage in or have engaged in a pattern of criminal gang activity as defined in § 40-35-121(a), and to willfully promote, further, or assist in any felonious criminal conduct by members of that gang.  

(b)  A violation of this section is a Class E Felony.  Any sentence imposed 
shall be served consecutively to the sentence for any other offense that is based 
in whole or in part on the same factual allegations, unless the sentencing judge 
or magistrate specifically orders the sentences for the offenses arising out of the 
same facts to be served concurrently.

It will be interesting if this law is passed to see how it is utilized by the police.  Will it be a stand along charge, or will it be added in addition to other crimes?  The provision requiring consecutive sentencing is important because it would have the effect of extending the total sentence if there were other crimes arising out of the same circumstance.  All pending bills in the Tennessee legislature can be tracked here.

 

Open Container Law in Tennessee

The law surrounding drinking alcohol in public is often misunderstood which was highlighted by a recent case of mine: Attorney Jay Perry.  An officer sought to arrest an individual for a violation of the “Open Container” law for drinking beer on a public sidewalk.  However, the "Open Container" law (T.C.A. 55-10-416) only applies to the driver of a motor vehicle, meaning that under Tennessee law it is perfectly legal for any passenger in a car to consume alcohol.  It is important to remember, however, that if travelling to Georgia or Alabama, you’d better finish that drink before crossing the state line.  Both of those states outlaw anyone in an operating motor vehicle from consuming alcohol.

As for my case, was drinking on a public sidewalk against the law?  There is a specific criminal prohibition on drinking on the grounds of a public school “having any of the grades kindergarten through twelve (K-12).”  But there is no general law in Tennessee prohibiting drinking in public.  However, don’t take to the sidewalks quite yet.  There are many municipal ordinances that make such behavior illegal.  For example, here in Chattanooga the city code states:

(b)   It shall be unlawful for any person to drink or consume any alcoholic beverage or

beer or have an open container of alcoholic beverage or beer in or on any of the following places:

     (1) public street, alley, avenue, highway;

     (2) public sidewalk;

     (3) public park;

     (4) public school ground;

     (5) any other public place;

     (6) teen social clubs, as defined in Chapter 11 of this Code; and

     (7) any parking lot held open to use by the public.

     Chattanooga City Code Sec. 5-87

But wait, what about all of the great Chattanooga events, i.e. Nightfall, Brewfest, Riverbend, where beer is clearly sold (and consumed) in a public place?  Well fortunately, the city code also contains an exception for events where a temporary beer permit has been obtained.  So, in the end it appears that there are many times/places where you may legally drink in public but apparently not on the sidewalk.