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.”

U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at NYTimes.com.

Nominating Commission selects three candidates for Court of Appeals Eastern Section

Jerri S. Bryant, Chancellor


The Judicial Nominating Commission met in Chattanooga today to review the 11 applicants for the Court of Appeals Eastern Section vacancy which serves 13 judicial districts in east Tennessee. The vacancy was created by the retirement of Court of Appeals Judge Herschel P. Franks.


After holding a public hearing and interview for each applicant, the Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

Jerri S. Bryant
Chancellor
10th Judicial District
Athens, Tennessee

Michael A. Faulk
Solo Practice/State Senator
The Faulk Law Office
Church Hill, Tennessee

Thomas Radcliffe Frierson
Chancellor
3rd Judicial District
Morristown, Tennessee

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. 

Sixth Circuit Rules that Park Ranger Was Right to Detain Man Carrying AK-47

In Embody v. Ward the Sixth Circuit Court of Appeals recently ruled that a park ranger did not violate the rights of a man who wore camouflage and carried an AK-47-style pistol across his chest with a loaded 30-round clip in a Nashville park.

The gun toting man from Brentwood, Leonard Embody, sued park ranger Steve Ward for detaining him at the Radnor Lake State Natural area back in December 2009. Ward held Embody while he investigated whether the gun was legal and whether Embody had a permit to lawfully carry it. The investigation revealed that Tennessee law allows guns with barrels of less than 12 inches in state parks. Luckily for Embody, his gun just squeaked by, with his barrel a half-inch under the limit. The stupidity of the Tennessee legislature to pass such a law allowing a man to bring a AK-47 into a state park was not at issue.

Embody also painted the  tip of his gun orange, an attempt to make the gun look like a toy. The Sixth Circuit said that given this, “An officer could fairly suspect that Embody had used the paint to disguise an illegal weapon.”

The Court also mentioned the concern raised by other park-goers: evidently one person raised his hands in the air when he ran across Embody while two other park visitors came to Ward to say they were “very concerned” about the man. Later an elderly couple reported that a man was wandering through the park with an assault rifle. All of this was further evidence, according to the Court, that Ward behaved reasonably when detaining Embody.

The Sixth Circuit said that Embody’s detention was predictable and that Embody himself suspected it might happen which is why he carried an audio-recording device on his person. The Court clearly felt little sympathy for Embody, saying that having worked hard to appear suspicious, Embody cannot later complain because park rangers took the bait.

Full opinion can be found here.

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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Study Reveals Tennessee Prisoners Serve Short Sentences

by Lee Davis

A recent study by the Pew Charitable Trusts Public Safety Performance Project revealed that Tennessee criminals serve the fourth lowest amount of time in prison compared to other states. The report, which was meant to measure the average length of stay for people sent to prison in 35 states, found that Tennessee’s short stays were behind only those in South Dakota, Illinois and Kentucky.

Those incarcerated in Tennessee could expect an average prison term of 1.9 years, 6 percent less than what they could have expected in 1990 and much lower than the national average of just under three years. Georgia saw average prison stays of 3.2 years while neighboring Alabama had 2.9.

The reason for the reduced time in Tennessee is a complicated one as prison sentences are affected by multiple factors, including legislators, who write the rules, judges, who have discretion in sentencing offenders to prison, and the state’s parole board, who decides whether an offender can leave prison early.

Tennessee began revising sentencing guidelines in the 1980s to combat prison overcrowding. Those reforms included lowering the minimum time prisoners must serve when convicted, meaning some offenders serve as little as 20 percent of their sentence. Recently, under pressure to appear tough on crime, legislators have increased those percentages for violent crimes. The legislature also enacted an array of alternative punishments and presumptions regarding people who should get probation, something other states have been slow to adopt.

The worry about the attention caused by the study is that legislators will feel the need to spring into action, creating harsh sentences for the sake of being harsh. There are indications the study already has begun a conversation about whether Tennessee should be stricter. State Senator Mae Beaver said that the issue is “certainly something we need to address and find out why it’s happening.” Beavers, the chairwoman of the Senate’s Judiciary Committee said, “I would certainly like to be tougher on crime.”

The fact is, when you look into the numbers and get over the initial shock of thinking the state is going easy on criminals, you realize that isn’t what the study actually demonstrates. What actually happened was that several decades ago legislators realized that lengthy incarceration is not always the best deterrence to crime, something backed up by the study. A key finding of the research is that not all crime is equal, but prison times seldom take that into consideration. Increased prison time and cost were up across the country almost identically for both violent and non-violent offenders. But the study also reveals that releasing non-violent offenders earlier did not result in lowered public safety, even when non-violent offenders committed similar non-violent crimes.

Though some may try to seek an easy solution and rush to have criminals spend more time in jail, it won’t solve the larger problem of crime in the state and will only end up costing us all huge amounts of money to keep them there. Spending large amounts of taxpayer money to keep non-violent offenders in prison shows a poor return on investment and has negligible impact on public safety. A sad anecdote that should give those pushing the state to be tougher on crime comes out of California where it was recently announced that the state spends more money on its prisons than on colleges and universities.

The full Pew report is available online here.

Read: “TN prisoners serve less time than those in most states,” by Brian Haas, published at Tennessean.com.

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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.  

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. 

Sixth Circuit Court of Appeals: No recovery for man released from prison 17 years too late

by Lee Davis

• Heyerman v. County of Calhoun

On Tuesday the Sixth Circuit U.S. Court of Appeals refused to reinstate the lawsuit of a man, Buxton Craig Heyerman, who blames prosecutors for leaving him in prison for 17 years after his conviction was overturned. Heyerman filed a civil rights action alleging the defendants violated his Sixth Amendment speedy-trial rights through his lengthy detention. 

There seems to be no dispute that a court order overturning Buxton Heyerman’s conviction and ordering a new trial apparently fell through the cracks in 1989. In January of 1988, after initially being found guilty of one count of first-degree criminal sexual conduct, he was sentenced to a prison term of 20-40 years. The next year the Michigan Court of Appeals reversed the conviction and remanded the matter back to the trial court. But instead of getting a new trial, he stayed in prison.

The Sixth Circuit said there’s no evidence that his extended stay in prison was due to a prosecutor's bad policy or a failure to supervise staff, key points in his civil rights lawsuit. The system in place at the time was to notify the parties and schedule a status conference once a case was remanded or reconsideration. For reasons unknown, the procedure was not followed in this case. 


The Sixth Circuit wrote that: 

“The judicial system - to say nothing of the criminal defense system - has not functioned as it should when a criminal defendant remains imprisoned for 17 years after his or her conviction has been reversed and no further action has been taken. Liability, however, does not necessarily attach to any entity and/or individual as a result of this breakdown.”

Heyerman’s attorney at the time was evidently aware of the decision but told his client to keep quiet and stay locked up for a few more years until the statute of limitations on the charge ran out. Calhoun County authorities said they became aware of the case only in 2007, when Heyerman filed a lawsuit demanding his release.

A judge that year dismissed charges, saying Heyerman's right to a speedy trial was violated. Heyerman’s former attorney paid $95,000 to settle a malpractice claim and was suspended from the practice of law for three years.

The judges of the Sixth Circuit summed the trial up aptly, calling it a “remarkable saga.”“It is not often that an inmate seeks refuge from the prosecutorial arm of the state by laying low for 17 years in prison in order to avoid the risk of a new trial that, if all goes badly, will lead to incarceration. And it is not often that a state abets this strategy by failing to realize that it is housing an individual whose conviction has been reversed.

To read the full opinion, click here. 

Earlier:

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

On Extraordinary Appeal, the Tennessee Supreme Court Opines on the Grant of New Trials in the First-Degree Murders of Channon Christian and Christopher Newsom

by Stevie Phillips

On May 24, the Tennessee Supreme Court entered a Rule10 Order addressing the question of whether Judge Jon Kerry Blackwood erred by granting the defendants’ motions for new trials in the first-degree murders of Channon Christian and Christopher Newsom. 

Judge Richard Baumgartner presided over the defendants’ trials but retired after pleading guilty to official misconduct and before ruling on the motions for new trials.  In granting the motions, successor Judge Blackwood found that 1) Judge Baumgartner’s misconduct amounted to structural error and that 2) credibility issues concerning Judge Baumgartner prevented Judge Blackwood from acting as a thirteenth juror. 

As a preliminary matter, Tenn. R. App. P. 10 sets out a narrow avenue for interlocutory review called an extraordinary appeal.  Such appeal may be sought “(1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal.”  The procedure for applying for a Rule 9 interlocutory appeal and a Rule 10 extraordinary appeal is basically the same except that Rule 10 requires only the permission of the appellate court.  On review, Rule 36 permits the appellate court to grant whatever relief is appropriate. 

In discussing the issue of structural error, the Court emphasized that Judge Baumgartner’s misconduct outside the courtroom was a clear violation of the Code of Judicial Conduct and that such behavior undermines public confidence in the judiciary.  Nonetheless, the defendants had not met their burden of demonstrating that his misconduct “fundamentally compromise[d] the trials” as required for a finding of structural error.  Indeed, the Court quoted Judge Blackwood during earlier hearings in which he stated that nothing in the trial transcripts indicated that Judge Baumgartner was impaired.

The Court further opined that under Tenn. R. Crim. P. 25(b)(2), which addresses the authority of a successor judge, Judge Blackwood rightly considered whether he could perform thirteenth-juror review.  The Court determined, however, that he applied an incorrect legal standard by focusing on Judge Baumgartner’s credibility rather than the credibility of the witnesses at trial.  Under the correct standard, which is set out in State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000), Judge Blackwood may perform thirteenth-juror review so long as witness credibility is not an “overriding issue.”

Ultimately, the Court vacated Judge Blackwood’s finding of structural error and instructed him to apply the correct legal standard when determining on remand whether he can perform thirteenth-juror review.  In sum, the door for new trials is still open. 

Davis & Hoss are attorneys practicing criminal law in all courts of Tennessee.

Tennessee Court of Criminal Appeals says stops based on dirty license plates constitutional

by Lee Davis

• State of Tennessee v. Eric A. Martin

Eric Martin was stopped by a police officer for violation of a the law requiring that a car license plate be maintained free from foreign materials and in a clearly legible condition. Martin’s plate was covered in oil or dirt and was illegible. The officer soon discovered that Martin was driving on a revoked license and arrested him.

Martin struck a plea deal with prosecutors and pled guilty to driving on a revoked license, fifth offense. He was sentenced to 11 months and 29 days but the trial court suspended all of the sentence but for the 29 days and placed Martin on probation. Martin has now appealed the section of Tennessee Code dealing with the condition of license plates. The Court of Criminal Appeals held that no question of law was raised by the appeal and it was dismissed.

Martin claims that T.C.A. Section 55-4-110(b) is unconstitutionally vague and overbroad in that fails to establish sufficient guidelines for determining that a tag is free from foreign materials and clearly legible. Martin claims the law as written permits police officers with far too much discretion. The statute specifically states:

Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12) from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible. No tinted materials may be placed over a license plate even if the information upon the license plate is not concealed.

The Court held that the officer in this case executed a traffic stop due to an equipment violation, something that the Tennessee Supreme Court has found to be a valid reason to stop a vehicle. As a result, the traffic stop was constitutional. After a brief investigation the officer determined that Martin was driving on a revoked license. The question that Martin now wants reviewed does not concern the revoked license, but the license plate. The Court found that the license plate issue was not dispositive to the case at trial. 

Even if the issue were dispositive the Court stated that both Tennessee state courts and the U.S. Court of Appeals for the Sixth Circuit have found that traffic stops made pursuant to T.C.A. Section 55-4-110(b) are valid and constitutional.  The bottom line is that police can pull over a vehicle if the license is illegible--that is a valid reason to base a police stop.

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

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Lee Davis practices criminal law in Chattanooga and across 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

Fen-phen scamming attorneys get no relief from the 6th Circuit

SHIRLEY A. CUNNINGHAM , JR.

A federal appeals court has affirmed the convictions of lawyers William Gallion and Shirley Cunningham Jr. for running a “massive scheme to defraud their clients” in a major Kentucky fen-phen case. The two prominent plaintiff's lawyers were convicted of wire fraud for stealing the bulk of a 2001 settlement from 440 clients, who ended up receiving only about 37% of the $200 million that the manufacturer of fen-phen, American Home Products, agreed to pay for their injuries. The once popular diet drug was shown to cause heart valve damage and was the subject of many lawsuits following its having been pulled from the market.

The 6^th Circuit Court of Appeals held while there were minor flaws in their 2009 trial, all were harmless given the extent of their crimes. The attorneys were convicted of scamming clients by taking nearly two-thirds of a $200 million settlement. 

The Court refused to believe that the two attorneys were simply in over their heads, deciding instead that they had actively lied to clients and the court, engaged in destruction of documents and shifted money between a multitude of accounts all to avoid detection. 

The panel affirmed an order that required the two lawyers pay $127.6 million to their victims as restitution. 

One of the defendant’s lawyer claimed that while he’s disappointed with the ultimate ruling he’s not done fighting for his client. He said he would now be asking the full court to reconsider the ruling and if that fails, ask that the US Supreme Court hear the case. 

Kerry Harvey, the U.S. attorney for the Eastern District of Kentucky, who was responsible for prosecuting the two said the ruling was gratifying because “it brings us one step closer to securing justice for the many victims.” Harvey said the government had been collecting assets but was legally not permitted to distribute them while the case was on appeal. Angela Ford, an attorney representing most of the victims of Gallion’s and Cunningham’s fraud, said, “It has been a long fight, and this is a tremendous milestone.”

Gallion, 61, who is serving 25 years at a federal prison camp in Oakdale, La., is not eligible for release until Dec. 8, 2029, while Cunningham, 57, who is serving 20 years at a camp in Yazoo, Miss., has a release date of Aug. 15, 2025.

USA. v. SHIRLEY A. CUNNINGHAM , JR. Read: “Fen-Phen lawyers' convictions upheld for defrauding clients,” by Andrew Wolfson, published at Courier-Journal.com.

Earlier:

Lawyers convicted of scamming millions from fen-phen suit get unsympathetic hearing at 6th Circuit 

Federal sentencing discretion under attack

Tennessee Court of Criminal Appeals: DUI Dismissed After Lost Video of Traffic Stop

In State v. Angela Merriman, the State appealed a trial court's dismissal of a DUI and two other counts against Angela Merriman. Merriman was charged with DUI, felony reckless endangerment and reckless driving. The Tennessee Court of Criminal Appeals agreed that dismissal of the charges was proper based on the state's losing the video of her arrest and roadside conversation with police.

The case began in early 2011 when the defendant was arrested and charged with DUI. The defendant filed a motion to dismiss the indictment due to the State’s failure to produce video evidence of the stop leading to her arrest.

The arresting officer stated that the video was simply lost.  Of particular concern here is that the video is the best evidence for both the prosecution and the defense.  It either inculpates guilt or exonerates Ms. Merriman.  For it to be lost is negligence by the police or state and the court recognized the importance of that issue.

The trial court held an evidentiary hearing and ultimately ruled that the State’s failure to preserve the video of the road side encounter of Merriman and the police violated her right to a fair trial. The court dismissed all three charges against her. The State appealed and argued that the trial court wrongly dismissed this DUI case. 

In a case of misplaced or missing evidence a court in Tennessee must weight three factors: 1) the degree of negligence involved; 2) the significance of the destroyed evidence; and 3) the sufficiency of the other evidence used at trial to support the conviction. If after weighing these factors the court believes that a trial without the lost evidence would be fundamentally unfair, then the trial court may dismiss the charges.

The Court of Criminal Appeals applied an “abuse of discretion standard” which means that before there can be reversal, the record must show that a judge applied an incorrect legal standard or reached a decision which is against logic or reason that caused an injustice to the state.

Here, the appeals court concluded that the trial court was correct in saying that without the video evidence of the traffic stop, the case would become a “he said, she said” situation. Dismissing the charges was appropriate to ensure fundamental fairness. 

The full case can be found here.

Earlier:

Criminal Law Review: New DUI law in effect.

Criminal Law Review: What are the DUI penalties in Tennessee?

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