Sixth Circuit Hears Ineffective Assistance of Counsel Appeal From Lillelid Murderer

The recently decided Sixth Circuit case of Howell v. Hodge began in 1997 when Karen Howell and five of her friends set off from Pikeville, Kentucky to New Orleans. At the time, Howell was only 17-years-old, another of the group was 14 and the rest were over 18. The group of friends brought two guns with them on their journey and discussed forcibly trading in their broken down car for a newer one along the way.

While stopped in Greeneville, Tennessee, an opportunity to steal a better car presented itself. A Jehovah’s Witness, Vidar Lillelid, came up to Howell and her friends and began to share his religious views. One of Howell’s compatriots brandished a gun and walked Lillelid back to his family’s van despite Mr. Lillelid’s offer of his wallet and his keys. The group ended up ordering Lillelid to pull over on a secluded stretch of road, at which point, all four members of the family were shot multiple times. The only person to survive was the Lillelid’s two-year-old son who lost an eye in the attack.

Howell and her group attempted to flee to Mexico but were caught in Arizona after failing to cross the border. Howell and her friends still had several of the Lillelid’s possessions when they were apprehended.

Prosecutors in Tennessee then filed charges and initially sought the death penalty. In exchange for dropping the death penalty charges, the group pled guilty to the crime, with Howell and the other minor pleading guilty in adult court. Howell was eventually sentenced to three life sentences to be served consecutively without the possibility of parole.

Howell then filed a petition for relief, claiming that she received ineffective assistance of counsel. She said that her attorney at the time should have insisted that she take a psychological evaluation to determine if her mental state required that she be committed to a psychiatric institution, which would have prevented her being transferred to adult court. The case made its way to the Tennessee Supreme Court, which found that although the attorney had indeed been deficient, Howell was not able to show prejudice.

The Sixth Circuit agreed to hear the case and laid out that for an ineffective assistance of counsel claim to succeed under the Sixth and Fourteenth Amendments, a claimant must show that deficient performance resulted in prejudice. The Sixth Circuit agreed with lower courts that there were reasonable grounds to believe Howell was not “committable” at the time of her trial. Thus, her attorney’s lack of action to get her a psychological evaluation does not prove prejudice. Moreover, the Sixth Circuit says that for a claimant to make such an ineffective assistance claim, he or she must establish that, but for their counsel’s ineffectiveness, he or she would not have pled guilty and would instead have gone to trial. Howell never says that, just that she might have been committed to an institution for a brief period of time for evaluation.

The Sixth Circuit ultimately affirmed the conviction and the ruling of the Tennessee Supreme Court. The Court found that the test for ineffective assistance of counsel is a demanding one that requires claimants prove that the likelihood of a different result is substantial, not just conceivable.

To read the full opinion, click here.

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By Lee Davis

Sixth Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct

The Sixth Circuit issued a ruling recently in U.S. v. Ernest Catchings. The Court held that for an act to be viewed as “relevant conduct” for calculating federal sentencing guidelines, the act must have been an offense that could have resulted in incarceration for the defendant.

The case came about after Ernest Catchings was arrested and charged with using his former clients’ personal information to obtain credit cards in their names. Catchings pleaded guilty to identity theft and it then became necessary to calculate the total amount of loss Catchings’ actions resulted in. The district court, while calculating the figure, included in its total money lost as the result of credit cards that were in the name of a company Catchings started with a friend. These losses worked to push Catchings into a higher loss bracket. Catchings claims that these cards were not obtained by fraudulent means and therefore the losses should never have been included in his guidelines range.

The matter of the business cards was a complicated one given that Catchings’ former business partner admitted they had opened the credit account together, for the business. However, he said the cards were not to be used for personal expenses. The prosecutor revealed that money had been charged to the cards, but never clearly showed that the charges were personal and not business related. Though the charges may have been unfortunate, there was no proof that they were illegal.

The Sixth Circuit ultimately agreed with Catchings. The Court said that in order for conduct to be relevant for loss calculation, it must also be criminal conduct. The Court felt that Catchings likely took advantage of his former friend and business partner, but that it is not clear based on the evidence presented during sentencing that his conduct was criminal.

Catchings also appealed on a second issue, claiming that his guilty plea was not entered into knowingly or voluntarily and that the lower court made a mistake when it denied his motion to withdraw his guilty plea. The Sixth Circuit disagreed with Catchings in this case. The Court held that following an analysis of the seven factors judges must consider when hearing a motion to withdraw a guilty plea, laid out in U.S. v. Bashara, Catching’s motion was properly denied. The only possible claim Catchings had was one of ineffective assistance of counsel, however, he destroyed that as a basis after it was revealed he reinstated his counsel after first making his claim of incompetence.

The different outcomes on the two appealed issues means that the conviction was affirmed as was the lower court’s denial of his motion to withdraw his guilty plea. However, Catchings’ sentence was vacated and remanded for resentencing in accordance with a new loss calculation.

To read the full opinion, click here. 

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.

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.

Sexting Teacher’s Aide Given New Sentencing Hearing by the TN Court of Criminal Appeals

A former Knox County Schools teacher’s aide who sent naked photos to a Gibbs High School student has been given a new sentencing hearing as the result of a recent ruling by the Tennessee Court of Criminal Appeals. Scot E. Vandergriff won the hearing to determine whether he should avoid conviction for sending “inappropriate texts and nude photos” to a male student at the school.

The Court said that the problem began in October of 2009 when Gibbs’ Principal Lynn Hill called the police after a parent complained that there were sexual texts on her son’s phone. The student’s teacher then alerted the principal who, in turn, confronted Vandergriff about the inappropriate text messages.

Vandergriff admitted to the principal that he had sent the photos. He then turned over his phone to authorities and gave consent to search the mobile device. The phone contained pictures of his anatomy and a subsequent investigation showed numerous text messages back and forth with the student, including nude photos.

Vandergriff decided to plead guilty as part of a plea deal to a charge of sexual exploitation of a minor and was sentenced to a two-year prison term. After pleading guilty he applied for judicial diversion, a program for first-time offenders that avoids jail and a criminal record if he were to abide the requirements of probation. The trial judge however, refused to allow Vandergriff to enter into the program. This decision was appealed and the Court of Criminal Appeals agreed that Vandergriff was entitled to another, more complete hearing.

The Court said that the judge, Knox County Criminal Court Judge Mary Beth Leibowitz, did not adequately explain her decision to deny Vandergriff diversion. The Court said that the record does not demonstrate that the lower court considered all the factors in ruling against the application. All Leibowitz said was that she was going to “err on the side of caution” and deny the diversion. This statement is not a sufficient explanation for why Vandergriff does not qualify.

To read the full opinion, click here.

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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. 

Chattanooga Gang Violence Leads to Cross-Border Partnership

A recent partnership was announced between the Walker County, Georgia and Hamilton County, Tennessee sheriffs departments intended to reduce some of the jurisdictional impediments that stymie efforts by both to fight gang activity in the region. Leaders from both counties gathered to sign a Joint Mutual Aid Agreement meant to ensure cooperation in the pursuit and prosecution of gang members.

Though crime may take place in Chattanooga, that’s not always where the criminals stay. Often times, suspects either live or flee to Northwest Georgia after engaging in crime in Tennessee. The gang members use the county and state lines to their advantage, hampering investigators on both sides.

The two counties are already fairly closely tied, sharing information and resources as part of their membership in the Chattanooga Area Gang Enforcement initiative. Both agencies have taken pains to ensure the public realizes that this agreement does not extend beyond gang activities. Hamilton County officials have been clear that no Georgia sheriffs will be permitted to come to Tennessee to enforce laws other than those relating to gang crime.

The action has been taken because of a recent rise in gang activity throughout the state. Studies indicate that gang activity has tripled in Tennessee communities with populations of 50,000 or less, meaning that smaller communities across the Tennessee Valley Region are feeling the impact of increased gang violence. Law enforcement officials hope that by tackling the issue now they can avoid even more draconian measures years down the road when the gangs would have had the chance to become even more entrenched.

The deal is the latest in a series of moves by Chattanooga to battle a growing problem with gang violence. Earlier this year, the Tennessee General Assembly beefed up the state’s existing laws regarding RICO (Racketeer-Influenced Corrupt Organizations) which are meant to permit more flexibility in defining what is a gang in the state. The new legislation broadens the definition to include participation in any ongoing criminal conspiracy.

Officials have grown tired of geography complicating police investigations and took steps to minimize the impact of state lines. For instance, if a conspiracy is found to exist in Tennessee but members later flee to Georgia, which agency is in charge of the prosecution? The fact is even with the recent pact the answer is not crystal clear. Responsibility could fall to either state; the location of witnesses, criminal evidence, experts, etc., all play a role in deciding where the prosecution occurs. Other factors include where the greater crime occurred and which state offers the most severe penalties.

The two counties started their partnership with the sheriff’s offices because the sheriffs’ jurisdictions cover both counties. However, this is just the first step in a much larger process of cooperation and coordination. As the program gains traction the goal is to expand it to include municipalities and even the prosecutors offices of both counties.

See: “Battling gangs across TN/GA state lines,” by Gordon Boyd, published at WRCBTV.com.

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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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Supreme Court Strikes Down Mandatory Life Sentences For Juveniles

By Jay Perry

On Monday the Supreme Court issued a ruling on Miller v.Alabama, a case previous discussed here.  The case involved two fourteen year old defendants who had been mandatorily sentenced to life without parole after they were convicted of murder.  In a 5-4 decision, the Court ruled that the imposition of mandatory life without parole for juveniles violates the 8^th Amendment prohibition on “cruel and unusual punishment”.  The decision (and its announcement) is particularly interesting for two reasons: the dissents were particularly vigorous and the media coverage surrounding the decision misstated the holding of the case.

The decision came complete with three separate dissenting opinions authored by Justices Roberts, Alito, and Thomas.  These dissents demonstrate that there was strong disagreement among the Justices about this case.  In particular, Justice Alito read his dissent from the bench, an unusual occurrence that seems to demonstrate extremely strong disagreement with the majority ruling.

  Chief Justice Roberts cited the fact that there are currently an estimated 2,500 juveniles serving such sentences and that a majority of states impose such mandatory sentences.  Thus, part of his argument is that they are in no way “unusual”.  In the end he concludes that although there may be moral arguments against mandatory life sentences, there are not good legal ones and hence it “is not our decision to make.”  This argument for judicial restraint, which is echoed in all of the dissents, is interesting because it often is used inconsistently by members of the Court.  After all, it was Chief Justice Roberts who wrote the majority opinion in Citizens United, explicitly overturning Supreme Court precedent from twenty years earlier.

Also worth highlighting is the inaccuracy of much of the media coverage regarding the decision.  Many of the headlines read that the Supreme Court had banned life sentences for juveniles (examples here, here, and here).  That was not what the Court ruled however, what they said was unconstitutional was the mandatory imposition of life without parole sentences.  States are still free to sentences juveniles to these sentences but must take into account their age and circumstances before doing so.  Many of the news accounts mention this in the body of the article which begs the question of why the inaccurate headlines?  It is just sloppy reporting or an attempt to oversimplify what happened?  It is important with the Supreme Court so prominent recently in public discourse that coverage of their decisions is accurate.  

As to the ruling itself, it makes good sense.  Juveniles are different from adults, we all understand this.  If a juvenile convicted of murder is mandatorily sentenced, it ensures that their age or mitigating circumstances are never taken into account during the process.  Once prosecutors make the decision to try them as adults their individualized circumstances are not considered.  Under this scheme, juries cannot consider their age or mitigating circumstances, their focus is on guilt or innocence.  All criminal punishment rests of a framework of moral reckoning, an understanding that we as a society are punishing an individual for their morally culpable behavior.  Because of circumstances often beyond their control and which they cannot escape, juveniles can be less morally culpable.   When we sentence them, we should consider not only the terrible crimes they have committed but their entire story, to do less is dehumanizing.

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.

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Tennessee Supreme Court Overturns Death Sentence Due to Misconduct

By Lee Davis

• State of Tennessee v. Hubert Glenn Sexton

1926 Tennessee Supreme Court: W.L. Cook, William Swiggart, Grafton Green, C.J., Colin McKinney and A.W. Chambliss 

The Tennessee Supreme Court recently overturned the death sentence for Hubert Glenn Sexton who was previously convicted of murdering a Scott County, Tennessee couple in their bed. The Supreme Court ordered that a new jury hear the case and decide whether he does indeed deserve the death penalty.

The high court found a multitude of problems with the evidence and sentencing phase of Sexton’s murder trial. Examples include inappropriate remarks made by jurors and the impact of prejudicial evidence that was admitted.

Sexton was convicted of first-degree murder by a jury for the May 2000 murders of Stanley and Terry Sue Goodman. The Goodmans were shot to death while they slept in their home only days after Sexton was accused of sexually abusing one of Stanley Goodman’s children.

Despite the problems uncovered by the Supreme Court, the justices refused to take the additional step of overturning his murder conviction. The majority clearly believed Sexton was guilty of the crime, stating that, “Aside from the unfairly prejudicial nature of the inadmissible evidence and the inappropriate argument by the prosecution, however, the proof of guilt for each of the two murders was simply overwhelming.” The doubt about Sexton’s guilt is very small as Sexton reportedly told at least three different friends that he had murdered the Goodmans.

The problems with the case began before the trial even started as the voir dire process was tainted. Apparently some people were improperly excluded as jurors. Later, jurors heard allegations of the sexual abuse Sexton was alleged to have committed but never officially charged with, something that never should have happened. The Court said that prosecutors should have instead attempted to charge Sexton separately for the abuse. The jurors were further prejudiced by hearing that Sexton initially agreed to take a polygraph but later changed his mind.

The accumulation of misconduct was enough to earn Sexton a new sentencing trial but not enough for a reprieve.

To read the full opinion, click here.

Read: “Tenn. Supreme Court overturns death sentence in E. Tenn. Case,” by Sheila Burke, published at TimesNews.net.

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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:

Sixth Circuit Court of Appeals: Is Evading Arrest a Violent Felony?

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

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 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.

Sixth Circuit Court of Appeals: Is Evading Arrest a Violent Felony?

by Lee Davis

• US v. Doyle

This case concerns whether a defendant’s prior conviction for evading arrest is a “violent felony” for purposes of the Armed Career Criminal Act (ACCA). If it is the consequences for a subsequent federal conviction are large. Despite having previously ruled that evading arrest is a violent felony and then having the Supreme Court vacate the Sixth Circuit’s judgment, the Court ruled again that under Tennessee law it is a violent felony.

In this case, defendant David Earl Doyle was found by police in 2007 parked behind a church sleeping in a running vehicle. Deputies saw a pistol in the driver’s side door and a shotgun lying between the driver and his sleeping female companion. The officers removed the weapons before arresting the two on various charges. A few weeks later a federal grand jury indicted Doyle and charged him as a felon in possession of a firearm, alterations to the barrel of a firearm (sawing off a shotgun), and possession of an unregistered firearm. Doyle pled guilty.

At sentencing the district court ruled Doyle was an armed career criminal (ACCA) under the guidelines because of his three prior convictions that qualified him for an enhanced sentence: aggravated assault, burglary and a Class E felony of evading arrest. The district court sentenced Doyle to 180 months on count one and 120 months for counts two and three, to run concurrently. 

Doyle agrees that his previous convictions for aggravated assault and burglary qualify as violent felonies under the ACCA. The issue is whether evading arrest qualifies as a violent felony. 

Under the ACCA a violent felony is “any crime punishable by imprisonment for a term exceeding one year” that has as an element the use of physical force against another  “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Class E felony evading arrest can only be considered a violent felony under this catchall provision. 

The Sixth Circuit previously address just such a question in U.S. v. Rogers, holding that in Tennessee a Class E felony evading arrest is a “crime of violence” under the guidelines.  While Doyle claims Rogers was wrongly decided he does not attempt to distinguish a case that is otherwise identical to the fact pattern present here. Though Rogers was remanded by the Supreme Court no new opinion has been issued on the case and therefore the Supreme Court’s ruling has an undetermined impact.

The Court’s majority founds that the portion of the ACCA discussing “serious potential risk of physical injury to another” applies in this case. The Court says such potential risks to officers are always present in vehicular-flight cases. Such risk is inherent in such situations as flight is in defiance of police instructions and the vehicles can be used in a way to cause serious potential risks of injury to others. 

Despite what the Supreme Court wrote in Rogers, the Sixth Circuit has decided that nothing should cause a reconsideration of their holding in Rogers and that Class E felony evading arrest under Tennessee law is a violent felony under the ACCA.

To read the full opinion, click here.

See Our Related Blog Posts:

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

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Lee Davis practices federal criminal law in federal courts in Tennessee and across the country.

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

by Lee Davis

• US v. MICHAEL D. JACKSON

FSA: challenges powder v. crack

This appeal arises from the conviction of Michael Jackson after pleading guilty in June 2009 to one count of intent to distribute more than five grams of cocaine. Jackson was found to be a Career Offender. The district court delayed his sentencing for more than a year, anticipating Congress was about to pass a new law regarding crack cocaine sentencing guidelines. The court felt it could not wait any longer and sentenced Jackson on July 16, 2010.

Jackson filed a timely notice of appeal. The Fair Sentencing Act was passed almost immediately thereafter, on August 3, 2010. At Jackson’s sentencing, the district court discussed at length the terrible disparity between the crack and powder cocaine sentencing guidelines. The district court clearly wanted Jackson to have a more fair sentence but felt its hands were tied. The district court ultimately decided to grant a 38-month downward variance from the Career Offender guideline.

Jackson seeks a remand to the district court for re-sentencing in light of the recent reduction in crack cocaine sentences. The government contends no reduction should be allowed given that his sentence was based on the Career Offender guidelines and not the crack cocaine guidelines. The Sixth Circuit recognized that Jackson’s criminal history meant that the Career Offender guidelines had to be considered but held that the district court should have the opportunity to revisit the sentence in light of new crack cocaine sentencing guidelines.

What appears to have happened is that the district court varied downward from the Career Offender guideline to a sentence more in lie with the what it believed was reasonable given the crack versus powder cocaine disparity. The Sixth Circuit says it believes had the revised guidelines been in place, it is clear the district court would have sentenced Jackson to a reduced sentence. Because the district court found Jackson to be a Career Offender and then sentenced him below the range for Career Offenders, noting a disagreement with crack guidelines, it is clear to the Sixth Circuit that the sentence was “based on” the crack guidelines as much as the Career Offender guidelines.

The Court further discussed the instruction in Freeman v. United States to:

… isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

The majority held that the crack cocaine guidelines were clearly a relevant part of the analytic framework used by the district court to determine Jackson’s sentence. The Sixth Circuit was clear to take no position regarding whether Jackson’s sentence should be changed, but remanded the decision to the district court to consider the retroactive crack cocaine guidelines. 

To read the full opinion, click here.

See Our Related Blog Posts:

Supreme Court hears argument on cocaine cases

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

Lee Davis practices law in federal court in the sixth circuit representing people in federal cases.

6th Circuit Appeals Court Upholds Child Pornographer’s Life Sentence

by Lee Davis

• UNITED STATES v. STEPHEN LYNN HAMMONDS

The U.S. Court of Appeals for the Sixth Circuit upheld the life sentence of a Jackson, Tennessee man who pleaded guilty to the sexual exploitation of minors and in trafficking child pornography. Stephen Lynn Hammonds, 45, argued on appeal that his 2010 sentence by U.S. District Court Judge Bernice Donald of Memphis was unreasonable and excessive.

Hammonds argued that mandatory guidelines imposed a sentence that was too harsh for the crime that was committed. Hammonds was originally arrested as part of a larger sting operation in 2009 by the Memphis office of the FBI. 

According to court records, Hammonds told FBI agents (posing as children) that he wanted to meet and have sex with them and that he had done so in the past on multiple occasions with his own teenage stepdaughter. Agents with a warrant searched his home and found dozens of files containing child pornography. He then pled guilty to federal charges six months later. 

This wasn’t Hammonds’ first time in trouble with the law. In 1998 he was arrested on charges of statutory rape and incest with a young girl between the ages of 13 and 15. This previous convicted served to enhance the guidelines for his federal punishment and led to his life imprisonment. 

In his appeal he pointed to a psychologist’s report saying that he was only a medium-low risk of reoffending and he had accepted responsibility for his actions and even helped agents find and convict another child pornographer. 

The government argued that Hammonds had bragged about his earlier conviction for incest and used it while looking for new targets of abuse. Judge Donald declared Hammonds to be “particularly dangerous” and deemed him beyond the point of rehabilitation. She said that he needed to be permanently separated from society and the children he might place at risk.

Writing for a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Julia Gibbons said Judge Donald did not abuse her discretion in doling out the tough sentence. “The district court did consider the mitigating factors in the case,” Gibbons said, “but found, appropriately and within its discretion, that concerns about the seriousness of the crime and the need to protect the public were paramount.”


Here is the full opinion of the court: United States v. Stephen Hammonds.

Read: “Federal appeals court upholds Tennessee child porn trafficker’s life sentence,” by Lawrence Buser, published at CommercialAppeal.com.

Earlier:

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

Supreme Court decides two important cases affecting attorneys obligations to clients

Hemy Neuman Found Guilty but Mentally Ill

Last week, the jury reached a verdict in the highly-publicized daycare shooting trial of Hemy Neuman. If you have been following the blog posts, you know that Neuman was accused of shooting Rusty Sneiderman on the lawn of a daycare in Dunwoody back in November 2010. He plead not guilty by reason of insanity, arguing that an angel who looked like Olivia Newton John told him he needed to kill Rusty Sneiderman. Neuman was intimately involved with Rusty Sneiderman's wife, Andrea although she expressly denied having an affair several times while under oath.

The jury deliberated over two days. They were presented with three options: not guilty by reason of insanity, guilty but mentally ill, or guilty. The jury found him guilty but mentally ill for the murder charge, and guilty for the possession of a weapon during the commission of a felony charge. The judge sentenced him to life without parole. The Judge was faced with the option of a life sentence with the possibility of parole after 30 years, however the Judge said he believed the killing was a "planned execution with no justification." With the guilty but mentally ill verdict, Neuman will receive treatment for his illness while in prison. The distinction between a not guilty by reason of insanity and a guilty but mentally ill verdict is that in the case of the former, the jury believes that the defendant did not know the difference between right and wrong during the commission of a crime. A guilty but mentally ill verdict indicates that the jury believes beyond a reasonable doubt that the defendant knew the difference between right and wrong and knew the consequences of his actions, yet remains a mentally ill individual. Obviously, it is possible to be considered mentally ill, but still possess the intent to commit a crime. Apparently, that is what the jury believed here.

Once he was sentenced, DeKalb County District Attorney Robert James said, "He was a cold-blooded killer. An adulterer. And a liar. And he ultimately got what he deserved."

What will be interesting to see is what prosecutors decide to do about Andrea Sneiderman. She quickly became an interesting topic because of her adamant denial of the alleged affair with Neuman. In an earlier post, I described some key discrepancies in her testimony, the most important being her testimony of when she first learned of the shooting. Andrea testified that she first learned of the shooting when she arrived at the hospital and the doctors informed her of her husband's condition. However, two separate witnesses testified that Andrea called them while in route to the hospital and told both of the witnesses that her husband had been shot. Also, it wasn't until after she began to receive payments off of her husband's life insurance policy that she saw fit to express to the police a suspicion that Neuman could have been the shooter.

The question now is: will prosecutors bring charges against Andrea? She would likely be charged with conspiracy. With the evidence that has arisen against her, it is highly likely that charges will be brought soon. I'll keep you updated. But for now, the dramatic trial of Hemy Neuman has ended, and he will be spending the rest of his life in prison.

Supreme Court Examines the Possibility of Limitations on Sentences for Juveniles

The Supreme Court yesterday heard arguments surrounding two new cases up for their review. Both involved the question of just how severe a penalty imposed on a juvenile has to be in order to be considered unconstitutional. The first case involved a 14-year-old in Alabama who beat an older man to death and subsequently burned his house down. The second case involved another 14-year-old boy in Arkansas who, along with two older boys, tried to rob a video store in 1999. One of the older boys shot and killed the store clerk.

Proponents for harsh penalties point to the "sanctity of life" as the reason a juvenile should be sentenced harshly for crimes involving killings. Justice Ginsburg, however, noted that this argument could fail because if the sanctity of life is an important interest for the State, by imposing a life without parole sentence on a 14-year-old, the State is essentially throwing that life away. Dissenters of harsh sentences believe that teenagers are immature, and should be given a more lenient sentence because of that. Their main point seems to be that many juveniles deserve a life sentence for their crimes; however, what they don't deserve is the lack of hope that they will ever get out on parole. Many worry, however, just how many teenagers will continue to commit extreme crimes such as the ones involved and claim they are too immature to know better.

Here are some of the possible solutions the Court could reach:

• It could prohibit life without parole sentences for any minor under the age of 15.
• It could prohibit life without parole sentences for anyone under the age of 18.
• It could bar life without parole sentences for defendants who were accomplices to a crime.
• It could bar mandatory sentences, relying on the discretion of the particular Court to consider all the facts and circumstances of the case.