Signed Affidavit is Close Enough for Will to be Valid

• In Re Estate of Thomas Chastain

The TN Court of Appeals reversed Chancellor Jerri S. Bryant, Polk County, and found that a will was validly executed.  At issue was whether a document was a will at all.   The document was not signed at the end, but the following document, the affidavit to the will, was properly signed.  Chancellor Bryant found no will to exist without the appropriate signature on it; therefor an affidavit purporting to support the will was meaningless--if no will existed in the first place.

The Appeals Court saw it differently.  

The unfilled-in space in the document is interesting. It seems plausible to us that this space was intended to contain the Deceased’s printed name and not his signature. If this is the case – and we believe it is – then the second page simply fails to have a line for the Deceased’s signature. We believe this bolsters our position, hereinafter stated, that the Deceased signed the aforesaid affidavit intending to sign the Will.

The case is interesting because of the historic rigidity held position that the courts have had  regarding signatures. No signature typically means no will. A mark on a document intended as a signature is sufficient, but as the proof in this case showed, if the person making the will is capable of signing his name and has in fact signed his name elsewhere in the documents, then initials or a mark is not the same as a signature or valid. Here the court followed the intent of the man signing the affidavit--he intended to sign his will--and the Appeals Court found that sufficient.  The man intended to have that document be his last will, that makes sense.

The puzzling question is how could a lawyer have drafted a will without a signature line at the end of the document. From the proof, the man sat and initialed the first page and signed the following document, the affidavit to the will.

Public Reprimand of Judge Zachary

• The Honorable Ronnie Zachary Public Reprimand

The complaint alleges an act or acts by you that violated the Code
of Judicial Conduct, in that the complaint asserts that you had  imposed a
punishment in a case that  involved  handcuffing a father to  a son as  a
punishment.

6th Circuit Maximum Sentence for Man who Threatened Judge

• UNITED STATES v. HERBERT WILFRED NIXON

The 6^th U.S. Circuit Court of Appeals recently decided to uphold the five-year sentence of a man who sent threatening letters to a federal judge in Nashville - including one that contained a white powdery substance which was later found to be a harmless artificial sweetener.

Herbert Wilfred Nixon sent the letters to Senior Judge Thomas Wiseman in 2002 after Wiseman sentenced him to three years in prison for credit card fraud. “The unsigned letters demanded money and threatened the judge’s life,” according to the 6th Circuit opinion written by Judge Raymond M. Kethledge.

Nixon pleaded guilty to making a false threat involving a biological weapon, in violation of 18 U.S.C. § 1038(a)(1).. While federal sentencing guidelines only called for a sentence of 30 to 37 months, U.S. District Judge William J. Haynes Jr. decided to send a strong message and sentenced Nixon to 60 months, the statutory maximum. Judge Haynes also ordered that Nixon have no contact with any member of the postal service during his three years of supervised release.

Nixon argued that the sentence was unreasonable. However, the three-judge appellate panel upheld it, citing factors including Nixon’s criminal history and the fact that his hoax “required the government to spend resources responding to a bio-hazard threat and were meant to terrorize a district judge and his staff.”

The Court wrote that just because another appellate court might have imposed a different sentence does not mean reversal is appropriate. The Court found that given the circumstances of Nixon’s offense, his criminal history, and his refusal to be deterred by a prior 36-month sentence, the district court’s sentence of 60 months was not an abuse of discretion.

Nixon also challenged the supervised release condition barring him from contact with any member of the postal service. The Court disagreed again, saying that Nixon used the postal service to commit his crimes, so the supervised release condition was reasonably related to the nature and circumstances of his offense and thus reasonable. The panel found that condition was even more palatable given that Nixon was only prohibited from contacting members of the postal service; he was not barred from using the service altogether.

For the full opinion, click here.

CCA affirms theft convictions and no violation of interstate agreement on detainers

A Monroe County jury convicted the Defendant, Todd Joseph Sweet, of theft greater than $10,000, and the trial court sentenced him to six years in the Tennessee Department of Correction, to be served consecutively to a sentence he received in a separate case, case number 08-081. In this appeal, the Defendant contends: (1) the trial court improperly denied his motion to dismiss for the State’s failure to comply with the Interstate Compact on Detainers; (2) the trial court improperly refused to remove for cause a juror who had previous knowledge of other crimes the Defendant allegedly committed; (3) the State failed to comply with Tennessee Rule of Criminal Procedure 16 when it failed to provide the Defendant’s trial counsel with letters written by the Defendant and intercepted by the Monroe County Sheriff’s Department; (4) the State failed to disclose exculpatory evidence; (5) the trial court improperly admitted evidence that the Defendant had committed other crimes; (6) the trial court improperly denied the Defendant’s motion for a mistrial; (7) the trial court improperly instructed the jury; (8) the trial court improperly denied the Defendant’s Motion to Strike the State’s Notice of Impeachment; (9) the evidence was insufficient to support his conviction; and (10) the trial court improperly sentenced the Defendant to the maximum sentence within his range and improperly ordered that his sentence run consecutively to a sentence he had previously received in a separate case. CCA concludes that there exists no error in the trial court’s judgment. Court of Criminal Appeals affirms the judgment and sentence.

Full case State v. Sweet

Post Conviction denied in Juvenile life without parole murder conviction

Daniel Decker, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief. Decker was convicted by a jury of one count of first-degree premeditated murder and is currently serving a sentence of life without the possibility of parole. On appeal, he contends that the post-conviction court erred in denying his petition because the proof presented established that he was denied his right to the effective assistance of counsel. More specifically, the petitioner alleges that the postconviction court erred in   multiple aspects, specifically: (1) that the courtheld that an expert witness had the duty and burden to present her opinions more completely at trial; (2) that the court erred by admitting a letter written by the petitioner to trial counsel after the conviction; (3) that the court should haverecused itself in the matter; (4) denying  relief because the petitioner met his burden of proof under the Strickland standard to establish ineffective assistance of counsel; (5) that the court erred by not reviewing trial counsel’s performance under the Cronic standard; and (6) that the court erred by failing to address all issues raised by the petitioner in its order denying relief.Court of Criminal Appeals finds no error and affirms the denial of the petition.

Full case State v. Decker

TN Supreme Court Examines the Constitutionality of Two Murder Convictions and the Subsequent Death Sentence

• Leonard Edward Smith v. State of Tennessee

The TN Supreme Court recently decided the case of Leonard Smith, convicted murderer on death row. The long case with a complicated procedural history began in 1985. He was convicted of murdering John Pierce in 1985 and of murdering Novella Webb in 1989, both occurring in the process of an armed robbery.

There were four issues on appeal. The first, and arguably the most interesting, is whether Smith was denied his Constitutional right to a fair trial at his 1995 re-sentencing hearing when his counsel failed to investigate and present evidence in support of his motion to recuse the presiding judge. Judge Brown, presiding judge over Smith's case, also served as a Prosecutor in Carter County. In May of 1984, Smith was indicted in Carter County for simple robbery and DUI. Prosecutor Brown (now Judge Brown) was assigned to prosecute him. Therefore, Smith was being prosecuted at the same time in two different counties for four crimes: the two murders and the robbery and DUI in Carter County. Smith appealed his convictions for the simple robbery and DUI but was denied relief. Meanwhile, Prosecutor Brown later became Judge Brown and presided over Smith's 1995 re-sentencing hearing.

When presented with these facts, Smith's attorneys neglected to investigate further into Judge Brown's involvement in the prior convictions to determine whether he had an obligation to recuse himself.

In determining whether Smith's counsel was ineffective, the Court looked to the United State Supreme Court's holding in Strickland v. Washington. Specifically, the Court in Strickland stated that the ultimate focus on the effectiveness of an attorney is "whether counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Judicial impartiality is a fundamental requirement in the guarantee for due process. Therefore, the test is an objective one: the Court examines whether the Judge is likely to be "neutral" or whether there is an unconstitutional "potential for bias."

The Court held that Smith's counsel were ineffective when they neglected to investigate or further pursue the motion to recuse. This ineffective counsel resulted in prejudice to Smith in that he was denied his right to a fair trial before an impartial tribunal. Particularly damaging to Smith's case was Judge Brown's involvement in the re-sentencing. As part of justification for a sentence of death, a judge should consider any aggravating factors such as prior violent felony convictions. Not only did Judge Brown know of the prior conviction for robbery, but he was the attorney that prosecuted Smith for that crime. This is clearly a situation that would point to a "potential for bias" by the Judge.

The Court examined three other issues: 1) whether Smith met the definition for "intellectual disability" and would thus be precluded from receiving a death sentence; 2) whether Smith's counsel were ineffective in their voir dire of potential jurors when they neglected to ask the jurors if they or someone close to them had been victims of a crime; and 3) whether the post-conviction claims Smith brought for the Pierce murder were barred by the statute of limitations.

The Court decided the lower courts should be given the opportunity to further examine whether Smith met the definition of "intellectual disability." The case was remanded back to sentencing. If found to have an "intellectual disability," Smith cannot be sentenced to death. Next, the Court decided that his attorneys were ineffective when they neglected to ask the potential jurors if they or anyone close to them had been a victim of a crime. The boyfriend of the daughter of one of the jurors was murdered in the recent years before Smith's trial. When asked if that would impair his ability to be impartial, the juror responded that he could remain impartial throughout his decision. Although counsel was ineffective, since Smith could not prove actual bias, he could not be afforded a remedy. Lastly, the court held that Smith's post-conviction claims were barred by the statute of limitations. The statute of limitations for bringing post-conviction claims is three years from the final action of the highest appellate court. Smith waited twelve years to bring post-conviction claims for the Pierce murder. The Court held this was obviously in violation of the statute of limitations and the claims were barred.

After all of that it might be difficult to tell where exactly Smith stands. Here is the rundown:

• Smith's conviction for the Pierce murder are affirmed.
• Smith's conviction for the Webb murder is affirmed.
• Smith's death sentence was vacated, and the case is remanded to the trial court for hearings on Smith's mental capacity. These hearings are to be conducted by a judge other than Judge Brown.

Retrial for Christian/Newsom Slayings Prompts Outcry to TN Supreme Court

Lemaricus Davidson

Despite being inundated with thousands and thousands of emails, the Tennessee Supreme Court has said that nothing can be done regarding the expected retrial for those convicted in the Christian/Newsom slayings.  And, of course the rules of criminal procedure would bar any attempt to circumvent or expedite the process.

The high court has said that justices cannot and will not consider the email petitions received by them, regardless of how many people ultimately send them in. Thus far more than 16,000 people nationwide have signed and forwarded an online petition requesting that the Tennessee Supreme Court, Tennessee Governor Bill Haslam and former Knoxville Mayor Daniel Brown do what they can to prevent the convictions of the four defendants from being thrown out for the 2007 kidnapping, rape, torture and murder of Channon Christian and Chris Newsom.

Christian, 21, and Newsom, 23, were on a date when they were carjacked the night of Jan. 7, 2007. They were held hostage at a rented house on Chipman Street in North Knoxville, where they were raped, tortured and killed.

Four separate juries found four people — Lemaricus Davidson, Letalvis Cobbins, George Thomas and Vanessa Coleman — guilty in the couple’s murders. However, Special Judge Jon Kerry Blackwood decided earlier this month that all four defendants in the Christian/Newsom case must receive new trials. Judge Blackwood granted the retrials due to extreme judicial misconduct found during a TBI investigation of former Knox County Judge Richard Baumgartner, who presided over the four previous trials.  Judge Baumgartner was recently disbarred after admitting he had a drug addiction.  This admission apparently is only the tip of that iceberg.

Judge Blackwood is one of the most accomplished and well respected members of the bench statewide.  As a Senior Judge, he is often called upon by the Supreme Court to hear the most difficult cases across the state.  Often these cases involve conflicts with attorneys or District Attorney's offices and in some cases, like this one, even errant judges.  Attorneys who have practiced before him praise him for his legal knowledge, fairness, and ability to quickly sort out the thorniest of legal issues.  If Judge Blackwood says that justice dictates that these cases require a new trial, then it is from the facts and circumstances that happened on Judge Baumgartner's watch that this remedy is demanded. Those familiar with Judge Blackwood--prosecutors and defense attorneys alike--will tell you, he coddles no defendant and suffers no foolish lawyer.  This decision to order four new trials was difficult to make, knowing full well the pain it would bring to the victim's families.  But, that Judge Blackwood would make this most unpopular decision is a testament to the power of the rule of law in Tennessee and a strong signal that the law applies even to those who seem most undeserving.

Laura Click, spokeswoman for the Tennessee Administrative Office of the Courts said she gets the email petitions constantly. “It's the exact same email, over and over again.”

Click said that while the justices care that the public is so invested in the case they will not be swayed by the outpouring. The Court can only look to the law and to do otherwise would be a breach of judicial ethics. 

Meanwhile, Knox County prosecutors have said they will appeal the case to the state Court of Criminal Appeals. John Gill, special counsel for the Knox County district attorney general said that the appeal should be filed by early January.

Click went on to say that, “The Code of Judicial Conduct prohibits judges from commenting on any cases that may come before them. Should the state file an appeal from the trial judge’s decision granting the motions for retrials, the appellate courts will consider the appeal based on the facts and information filed with the court as part of the regular appeals process, described in the Tennessee Rules of Appellate Procedure,” Click said.

 Channon Christian & Chris Newsom

Christian’s cousin, Brandon Sterne, started the online petition at http://www.change.org within a few days of Blackwood’s decision. Despite the news from the Supreme Court, the petition drive has not stopped; as of last count there 18,155 signatures.

Sources:

• STATEMENT REGARDING THE PETITION TO STOP THE RETRIALS FOR THE MURDERS OF CHANNON CHRISTIAN AND CHRISTOPHER NEWSOM 

• “Tennessee court system says Christian/Newsom petition in vain,” by Matt Lakin, published at KnoxNews.com.

What are the DUI penalties in Tennessee?

Frequently attorneys are asked, what are the potential penalties for DUI?  Most lawyers know the conventional answer: loss of license and 48 hours in jail.  But the reality is that DUI law is becoming more complicated and the penalties can be more invasive than one might think. Listed below are the actual DUI penalties in Tennessee. These are listed by the TN Department of Safety & Homeland Security and are updated as legislative changes occur.

By way of example, a first offense DUI has the following potential penalties:

• from 48 hours in jail up to 11 months, 29 days for first offenders
• .20 BAC or greater minimum jail time 7 consecutive days
• License revocation for 1 year/restricted license may be available for work
• 3 days (24 hours) of community service like trash pick up
• alcohol & drug counseling
• You will be ordered to participate in a DUI school
• Pay restitution to any person suffering physical injury or personal loss
• $350-$1,500 fine to the state plus often a local court's DUI fine typically another $100
• With towing, bail, high risk insurance, court costs, school, and reinstatement fees, your first offense average costs could add up to $5,000 
• Judge can order you to install a vehicle Ignition Interlock Device at your expense. Minimum 1st year cost $810 [55-10-412d]
• If two (2) convictions of DUI in 5 years, Ignition Interlock Device required for 6 months after reinstatement at your expense Drug and Alcohol Treatment may be required at the judge's discretion.

A second offense DUI carries the following potential penalties:

• from 45 days to 11 months, 29 days in jail
• $600-$3,500 mandatory fine
• 3 days community service
• License revocation for 2 years/Restricted License available after first year
• Subject to vehicle seizure/forfeiture
• You will be ordered to attend a DUI school
• alcohol and drug counseling
• The judge can order you to install a vehicle Ignition Interlock Device at your expense
• If two (2) convictions of DUI in 5 years, Ignition Interlock Device required for 6 months after reinstatement at your expense
• Pay restitution to any person suffering personal injury or loss.

For a full list of penalties click this link or go to: http://www.tn.gov/safety/duioutline.shtml

Memphis Criminal Court Judge John Fowlkes appointed to Federal Judgeship

Memphis Criminal Court Judge John Fowlkes was appointed yesterday by President Obama to the Federal Bench for Western District, Tennessee.  The Commercial Appeal reports,

Fowlkes, 60, would take the post left vacant when former U.S. Dist. Judge Bernice B. Donald was sworn in as a judge on the U.S. Court of Appeals for the Sixth Circuit on Oct. 29.
“It is truly an honor for the President to nominate me for the position,” said Fowlkes moments before the official announcement came from the White House. “It’s a position I’ve wanted to fill for a number of years and I look forward to the challenges that the position brings. Of course, the process still has a ways to go. 

“In the meantime, I’m still the judge of Division 6 of Criminal Court,” he said. “My responsibilities don’t stop.”

Fowlkes has been a Criminal Court judge since 2007. Immediately prior to that, he served as the chief administrative officer for Shelby County government under then-County Mayor A C Wharton. Before that, he served as an assistant U.S. attorney from 1989 to 2002, where he prosecuted corruption, money laundering, narcotics and gang-related defendants, among others. From 1979 to 1989, he was an assistant district attorney general in the Shelby County District Attorney General’s Office.

When is a Courthouse Escape a Violent Offense?

Does a criminal’s escape from custody rise to the level of a violent offense? Courts have been struggling to answer that question with any degree of certainty. The latest case to deal with the issue is the Sixth Circuit case United States v. Oaks.

In Oaks, defendant Jerry Ray Oaks had a prior conviction for escape based on an earlier attempt to flee from a courthouse. In a later case, Oaks pleaded guilty to being a felon in possession of a firearm and the district court in the Eastern District of Tennessee sentenced him to 120 months. Oaks appealed his sentence, challenging the district court’s use of his prior conviction for felony escape to support his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

The Court stated that Oaks made his escape from a courtroom which was not in a secure facility. The Court labeled his escape as one from “nonsecure custody.” The Court was tasked with deciding whether such an escape from “nonsecure custody” is a “violent felony” for sentencing purposes.

To answer such a question the Court must decide whether an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a “serious potential risk of physical injury.” Chambers vs. United States, 555 U.S. at 128-29 (2009). The Court found that in this case, as in Chambers, “a United States Sentencing Commission report helps provide a conclusive, negative answer.” 

The Court decided that the act of escape from “nonsecure custody” is rarely violent. The Court relied on statistics that showed that out of one hundred seventy-seven instances of escape from “nonsecure custody” in 2006 and 2007, only 1.7% ever resulted in injury. The Court went on to say that a felony is not necessarily violent just because past commissions of that felony have involved violence. By way of example, the Court pointed to Chambers where the Supreme Court found that “failing to report” is not a violent felony even though previous commissions of that crime were known to have involved violence. 

The Court ultimately held that an escape from “nonsecure custody” is not a violent felony for sentencing purposes. They were careful to say that some courtrooms may be part of secure facilities and an escape from them may amount to an escape from “secure custody” thus necessitating a different decision. The Court remanded the case for resentencing.

See Other Blog Posts:

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

Appeals Court Reverses and Imposes Community Corrections in Drug Case