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

by Lee Davis

• State of Tennessee v. Barry D. McCoy

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

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

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

To read the full opinion, click here.

Earlier:

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

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

Tennessee Supreme Court to revisit "constructive possession" in State v. Robinson

by Jay Perry

It’s not an uncommon situation: late at night a car full of people is pulled over by police.  Inside the car the police find some illicit drugs, but no one claims them.  Who do the drugs belong to?  This is a key question because here in Tennessee it unlawful to manufacture, sell, deliver or possess a controlled substance.  It is not a crime to be in the presence of a controlled substance.  Often in situations like these, where the owner is unknown, the police officer will charge everyone inside the car with possession of the drugs.     

Tennessee law recognizes two kinds of possession: actual and constructive.  Actual possession is simple- everyone understands that if you have something in your hands or on your person you are in actual possession of it.  Constructive possession is trickier, however, and the courts have defined it in different ways.  Commonly, constructive possession requires that the person knowingly have the power and intention to exercise dominion and control over an object.  Simply put, “constructive possession is the ability to reduce an object to actual possession.”  United States v. Martinez, 588 F.2d 495 (5^th Cir. 1979).  To illustrate this concept, consider your household possessions.  While at work you are not in actual possession of any of the things at your home.  However, you are in constructive possession because you have both the power and ability to actually and legitimately possess these things.  Going one step further, while watching football at the home of a friend, are you in constructive possession of their television?  Clearly not.  Even though you are in the presence of the television, you do not have the power to take it into actual possession. 

The definition of constructive possession and its application in actual trials remains slippery and difficult for juries to apply.  The Tennessee Supreme Court recently agreed to explore the issue by granting certiorari to hear the defendant’s appeal in the case of Tennessee v. Bobby Lee Robinson.  In the case the defendant was convicted of the possession of more than 300 grams of cocaine with the intent to sell, a Class A felony.  The cocaine had been found in the center console and the floor of a car in which the defendant was a passenger.  However, nothing was directly found on Mr. Robinson, and there was considerable evidence from a search of the co-defendant’s house that the co-defendant had been running a drug selling operation. 

It is likely that the Tennessee Supreme Court agreed to hear the case, a conviction based on constructive possession, to shed some light on this difficult legal concept.  While appellate courts are typically loathe to overturn a jury verdict, such a reversal may be what they are contemplating.  It will be interesting to see what they have to say.  After all, “freedom is a possession of inestimable value.”  

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.

Chattanooga National Cemetery-Memorial Day 2012

By 1870, more than 12,800 interments were complete

by Lee Davis

Yesterday after bike ridding and enjoying some ice cream in the sun, I took my two youngest kids to the Chattanooga National Cemetery to reflect on the meaning of Memorial Day. It was late afternoon and the hallowed grounds were nearly empty except for a handful of visitors.  Boy Scouts had been out earlier planting an American flag at the headstones for each of the thousands of service men and women from America's conflicts--from the Revolutionary War to the present. There are vast rows of graves from the Civil War alone that cover hillsides. As we moved through the columns, I appreciated the solemnity that my children absorbed from this place and the sentiments I believe they will share with another generation. Our shared appreciation for those who serve and those who have served will guide their future.  

The Department of Veteran's Affairs has a historical description of the Chattanooga National Cemetery. Below it is posted in part.

  

"On Dec. 25, 1863, Maj. Gen. George H. Thomas, “The Rock of Chickamauga," issued General Orders No. 296 creating a national cemetery in commemoration of the Battles of Chattanooga, Nov. 23-27, 1863. Gen. Thomas selected the cemetery site during the assault of his troops that carried Missionary Ridge and brought the campaign to an end. 

The site Thomas selected was approximately 75 acres of a round hill rising with a uniform slope to a height of 100 feet; it faced Missionary Ridge on one side and Lookout Mountain on the other. Gen. Grant established his headquarters on the summit of the hill during the early phase of the four-day battle for Lookout Mountain.

Chaplain Thomas B. Van Horne was placed in charge of the cemetery’s development. In a report of May 14, 1866, the chaplain indicated that one-third of the cemetery site could not be used for burials due to large rock outcroppings. As a result, he suggested a design dictated by the rocky terrain. Much was accomplished during Van Horne’s tenure at the cemetery. Flowering shrubs, evergreens and other trees were planted to replace a portion of the dense forest of oak trees that had been cut down as a part of the battleground. Each interment section consisted of a central site for a monument surrounded by plots for officers with the graves of enlisted personnel arranged in concentric circles around them. In 1867, it was designated Chattanooga National Cemetery.

Matthew Davis, 12,  visits Chattanooga National Cemetery

By 1870, more than 12,800 interments were complete: 8,685 known and 4,189 unknown. The dead included men who fell at the battles of Chickamauga, Missionary Ridge and Lookout Mountain. There were also a number of reinterments from the surrounding area, including Athens, Charleston and locations along the line of Gen. Sherman’s march to Atlanta. A large number of men—1,798 remains—who died at the Battle of Chickamauga were relegated to unknowns during the reinterment process.

In addition to Civil War veterans, there are 78 German prisoners of war buried here. Pursuant to provisions included in the peace treaty between the United States and Germany at the end of World War I, the German government sought the location and status of the gravesites of Germans who died while detained in the United States. An investigation conducted by the War Department found that the largest number of German POWs was interred at Chattanooga National Cemetery. For a short time, thought was given to removing all other German interments to Chattanooga. In the end, however, the German government decided that only 23 remains from Hot Springs National Cemetery should be reinterred here. The German government assumed the cost of disinterment and transportation to Chattanooga, and erected a monument to commemorate the POWs."

Source:

Chattanooga National Cemetery

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.

by Lee Davis

Judge Kerry Blackwood

The Tennessee Supreme Court in a rather unusual move has ruled that Judge Baumgartner's terrible misconduct outside the courtroom does not mean that a new trial is absolutely required in the first degree murders of Channon Christian and Christopher Newsome. 


The case will now go back to Knox County trial court and Judge Kerry Blackwood will have to decide if a retrial is necessary following the legal guidelines set forth below by the TN Supreme Court.  Judge Blackwood made it quite clear during the earlier hearing that egregious conduct of Judge Baumgartner during trial required a retrial.


STATE OF TENNESSEE v. LETALVIS COBBINS, L E MARICUSDAVIDSON and GEORGE THOMAS

Tennessee’s New Expungement Statute Goes into Effect July 1

By Stevie Phillips

• Criminal Procedure - As enacted, this law authorizes persons to petition for expungement of records of conviction for certain non-violent, non-sexual misdemeanors and Class E felonies

A record of a criminal conviction can have wide-ranging consequences from difficulty securing employment to the loss of the right to vote or own a firearm.  When a conviction is expunged, the record of the conviction is no longer available to the public, and the person receiving the expungement may deny involvement in the underlying offense. 


Currently, under Tennessee Code Annotated section 40-32-101, a person can petition the court for expungement of public records involving a criminal offense, but the record will be expunged only if the charge was dismissed, no true bill was returned by the grand jury, or the person was arrested and released without being charged.  Pursuant to an amendment to this statute that will go into effect on July 1, a person may petition the court for expungement of an actual conviction. 

The person seeking the expungement must meet certain requirements, and not all offenses are eligible.  A person may not seek expungement if she has been convicted of any other offense at any time.  In addition, at least five years must have elapsed since the person seeking expungement fulfilled the requirements of her sentence.  Finally, the conviction is not eligible for expungement if the sentence imposed was a term of more than three years imprisonment. 

The amendment sets out separate but similar standards for convictions based on offenses committed before and after November 1, 1989.  For post-1989 offenses, there is a list of eligible Class E felonies, including but not limited to theft; fraudulent use of a credit or debit card; worthless checks; car burglary; vandalism; and some drug offenses.

Misdemeanors are also eligible for expungement subject to a long list of exceptions.  Offenses related to domestic violence are, notably, not eligible, including domestic assault, violation of a protective order, and possession of a firearm while a protective order is in effect.  Also excluded are a variety of offenses that involve minor victims, including child abuse, neglect, or endangerment.  Finally, a conviction for (DUI) driving under the influence of an intoxicant is also not eligible for expungement. 

Generally, convictions committed before November 1, 1989, are eligible.  Exceptions exist, however, for inerently dangerous offenses or those that require registration as a sex offender, involve intoxicants and a motor vehicle, involve the sale or distribution of some classes of drugs, or that result in serious bodily injury, harm to a minor, or damages in excess of $25,000. 

The legislature has directed the district attorneys general conference to create a simple form that lay people can use to petition for expungement.  A $350 filing fee is also required.  If the petition is granted, the conviction is deemed to have never occurred, and a copy of the expungement “shall be sufficient proof that the person named in the order is no longer under any disability, disqualification or other adverse consequence resulting from the expunged conviction.”  If the petition is denied, the petitioner may file again after two years. 


A summary of the bill can be found here.


Davis & Hoss attorneys practice 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

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

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

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.