SUPREME COURT DECISIONS CHANGE RULES FOR DETERMINING WHEN CONVICTIONS FOR MULTIPLE CRIMES ARE PERMITTED

March 9, 2012

Nashville – In three unanimous decisions, the Tennessee Supreme Court significantly changed the tests and procedures for determining when multiple convictions are permissible under the state and federal constitutions.

In State v. Watkins and State v. Cross, the state confronted the issue of whether multiple convictions under different statutes violate the state constitutional prohibition against double jeopardy. After reviewing historical developments, the Court concluded that the time has come to abandon the test previously announced by the Court in State v. Denton and adopt the same elements test announced by the U.S. Supreme Court in Blockburger v. United States. The Blockburger test is already used by federal courts and many state courts. It requires courts to focus on the elements of the crimes and the legislative intent when determining whether multiple convictions violate double jeopardy. Adopting the Blockburger test will allow Tennessee courts to decide double jeopardy claims in a more straightforward manner.

The Court emphasized that there cannot be a double jeopardy violation unless the convictions arise from the same act or transaction. Similarly, the Court pointed out that if the Legislature expressly states that multiple convictions are permissible or if each offense includes a different element, courts will presume the Legislature intended to permit multiple punishments.

In State v. White, the Supreme Court announced changes in cases involving charges of kidnapping and an accompanying felony. The Court concluded that a separate due process test is no longer necessary for determining whether convictions for kidnapping and an accompanying felony may be upheld. Instead, a properly instructed jury must decide whether a defendant who detains a victim during a crime, such as rape or robbery, can be convicted of kidnapping in addition to the other crime. When the charges result in a kidnapping conviction, the trial and appellate courts must uphold the conviction if the evidence is legally sufficient. The opinion overrules the approach taken in State v. Anthony and refined in State v. Dixon by requiring a jury to determine if the evidence is sufficient to support a conviction for kidnapping and another offense. The opinion also overrules State v. Cozart, in which the Court concluded that judges, as opposed to juries, were required to determine whether a separate kidnapping conviction violated constitutional standards.

In today’s decision, the Court set out temporary jury instructions and invited the Tennessee Pattern Jury Instruction Committee to develop permanent guidelines for future cases. The Court also pointed out that its decision does not create a new rule of constitutional law and, therefore, does not require retroactive application.

1. State v. Watkins, opinion authored by Chief Justice Cornelia A. Clark
2. State v. Cross, opinion authored by Justice William C. Koch, Jr.
3. State v. White, opinion authored by Justice Gary R. Wade

The above was  released by the Tennessee Supreme Court and the content of this post is a verbatim statement from the court.  I believe it is fair to quote from each case and this release as authority from the Court.

Defense Rests in Hemy Neuman Murder Trial

The defense rested in the Hemy Neuman Murder Trial late last week. Neuman, accused of murdering Rusty Sneiderman in front of his child's day care facility in November 2010, has plead not guilty by reason of insanity. The defensive strategy was to provide intensive expert testimony on the mental capacity of Neuman.

The Defense called two experts to testify as to the sanity of Neuman and his ability to recognize the difference between right and wrong at the time of the shooting. One expert was forensic psychiatrist, Tracy Marks. In an attempt to prove insanity, Marks spent the majority of her testimony discussing Neuman's suicidal thoughts, hallucinations, and symptoms of bipolar. She stated that Neuman had been experiencing suicidal thoughts and tendencies months before he ever hired Andrea Sneiderman, the wife of the victim who was allegedly engaged in an elicit affair with Neuman. During the defense's opening statement, the defense mentioned that Neuman had been visited by demons. Marks detailed an encounter with a demon in February 2010 where the demon supposedly told Neuman that he was worthless. Another demon, appearing in July 2010, told Neuman that Andrea Sneiderman's children were actually Neuman's children, and that they were being abused by their father, Rusty. One month later, that same demon allegedly told Neuman that he needed to kill Rusty Sneiderman in order to "protect them from suffering the same fate he did as a child in terms of being abandoned or rejected." Marks stated that certain statements and actions by Andrea Sneiderman fueled the fire in Neuman. Specfically, Marks said Andrea regularly complained to Neuman about tension in her marriage. She once emailed Neuman several pictures of her children without their father in the pictures. Neuman interpreted his absence to mean he was abusing the children.

The second expert that testified for the defense was forensic psychiatrist, Adriana Flores. Dr. Flores, along with Dr. Marks, diagnosed Neuman as mentally ill and suffering from bipolar disorder and psychosis. Dr. Flores expressed the opinion that because of his mental state, Neuman did not know the difference between right and wrong at the time of the shooting. The Prosecution has argued, however, that Neuman did know the difference between right and wrong because he disguised himself at the crime scene, he threw the gun in the lake after the shooting, and he lied to police about his involvement. Thus, on cross-examination, the prosecution asked Dr. Flores if it was possible that Neuman was lying. She responded that, "It's always possible."

Neuman informed the Court many times that he would not be testifying during his defense. However, the defense played taped interviews with Neuman in front of the jury. In these tapes, Neuman discussed the difficult childhood he experienced with an emotionally abusive father and an absent mother. Neuman became visibly upset when the tapes were played in court.

After the defense rested, the prosecution called a rebuttal witness, forensic psychiatrist Pamela Crawford to try and provide testimony from an expert who believed Neuman was faking his mental illness. The prosecution ended its rebuttal this morning. Closing arguments are expected to begin tomorrow morning. Once closing arguments are over, it will be up to the jury to decide the fate of Hemy Neuman.

Prosecution Rests in Hemy Neuman Murder Trial

The Prosecution rested their case last week in the trial of Hemy Neuman, the man accused of shooting Rusty Sneiderman in front of his child's day-care facility in November of 2010. The focus of the majority of the State's case was on the widow of Rusty Sneiderman, Andrea Sneiderman. I detailed the testimony of Mrs. Sneiderman in an earlier post. Her testimony was so compelling, it deserved its own blog entry.

The focus continued to stay on Mrs. Sneiderman as the State called various witnesses to testify about Mrs. Sneiderman's actions and how they corresponded with Neuman's actions. Aside from providing numerous witness accounts detailing the intimate relationship observed between Neuman and Mrs. Sneiderman, the State turned its attention to the part she may have played in the shooting. As emphasized before, she has never been charged with aiding in the murder of her husband, and it is unlikely that she ever will. However, the State seemed to want to paint a picture of a detailed, planned out shooting in which Andrea Sneiderman was aware. While this is purely speculative, if evidence is presented that Mrs. Sneiderman was aware of the shooting, the jury might be more inclined to believe that Hemy Neuman planned it and told Mrs. Sneiderman his plans, contradicting his insanity defense.

The State called Lt. Barnes, the police officer who initially took Neuman's statement after the shooting. Among other things, he testified that he became suspicious of Mrs. Sneiderman and her relationship with Neuman when she adamantly denied having an affair with Neuman and when she waited 6 days after the shooting to tell police she believed Neuman was the shooter. He also testified that when Neuman came to give his statement, he was presented with records indicating his rental of the van witnesses saw Neuman drive off in after the shooting. Given this evidence, Lt. Barnes stated that Neuman said, "It doesn't look good" in regards to the case against him.

The State also called FBI Special Agent Freiman who examined Mrs. Sneiderman's iPhone and iPad. He testified that he found several suspicious searches conducted on her iPad including: "gun", "range", and "can police trace a cell phone call?" The State also called FBI Special Agent Chad Fitzgerald who conducted an analysis of the cell phone correspondence between Mrs. Sneiderman and Neuman dating from May 2010 to November 2010. He stated that Mrs. Sneiderman corresponded with Neuman 1,446 times during that time. He further stated that during that same amount of time, she only corresponded with her husband 882 times.

The defense began their case late last week. It will be interesting to see what evidence they produce of Neuman's psychological behavior in order to further his defense.

United States v. Lander: Convictions Reversed Because Facts at Trial Varied from Facts Alleged in Indictment

In United States v. Joseph Lander, the Eleventh Circuit reversed twelve of the defendant’s convictions for fraud and money laundering because the facts proved at trial materially varied from those alleged by the Government in the superseding indictment.

In this case, the defendant was convicted of mail fraud and money laundering charges related to two separate fraudulent schemes. The Eleventh Circuit upheld the convictions regarding one of the fraudulent schemes (misrepresenting expected returns on an investment in a vitamin company) but reversed the defendant’s mail fraud and money laundering convictions in the second scheme (involving the conversion of developers’ funds).

With regard to the latter scheme, the Eleventh Circuit held that the facts proved at the defendant’s trial for fraud materially varied from those alleged in the superseding indictment. The indictment itself alleged that Lander, a county attorney, misrepresented to developers that they were required to pay a performance bond to the county. At the trial, two developers stated that Lander either never instructed them about a performance bond or could not recall if he instructed them about a performance bond. Following this testimony, the Government adjusted its theory of the case and argued, in closing, that Lander misrepresented to the developers that he could make sure their project moved through the regulatory process. The court of appeals held that the misrepresentation that the Government ultimately relied on did not match the scheme to defraud which was set forth in the indictment, and was an essential element to the mail fraud charge. The court held that this material variance from the indictment substantially prejudiced Lander—by failing to “apprise the defendant of what he must be prepared to meet” and Lander’s mail fraud conviction was reversed.

Because the government based Lander’s money laundering charges on the aforementioned mail fraud charge—using the mail fraud to satisfy the “specified unlawful activity” element of money laundering—the court reversed Lander’s convictions on the money laundering charges as well.

Appeals Court Directs Sheriff Hammond To End Pay Disparity Among Sergeants

Appeals Court issues opinion in suit of Hamilton County Sergeants against Sheriff, reported here.


The Tennessee Court of Appeals has directed Sheriff Jim Hammond to equalize pay among sergeants in the department.

The appeals court modified a ruling by  Chancellor Frank Brown, who said the Sheriff's Civil Service Board did not have the authority to set pay.

Sheriff Hammond filed suit after the Civil Service Board ruled in favor of sergeants, who filed a grievance on the pay issue. He said the pay gap was between around $43,000 to around $49,000 and moving all sergeants to the higher rate would cost some $73,000.


Here is the link to the full opinion.

Tennessee Child Rape Suspect Granted New Trial

• STATE OF TENNESSEE v. EMOE ZAKIAYA MOSI BAKAR

The Tennessee Court of Criminal Appeals has awarded child rape suspect Emoe Zakiaya Mosi Bakari a third trial, ruling that his conviction of attempted rape of a child must be overturned because of various prejudicial errors during Bakari’s second trial.

Bakari was indicted by a Davidson County grand jury in 2008 and was accused of raping an ex-girlfriend’s daughter and nephew in 2002 and 2003 while he lived with the family. Bakari allegedly told police the allegations were not true and stemmed from his ex-girlfriend’s “jealousy.”

Bakari was first tried in August 2009, but the jury could not reach a verdict and the court declared a mistrial. Bakari was tried again in December 2009, convicted of attempted rape of a child and sentenced to 12 years in prison.

On appeal, Bakari argued that Davidson County Criminal Judge J. Randall Wyatt Jr. erred by (1) allowing a State witness to testify about “delayed disclosure” in child sexual abuse cases; (2) allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation; (3) allowing the State to introduce a photograph of the victims into evidence; and (4) allowing the prosecutor during rebuttal closing argument to give personal examples in an attempt to vouch for the victims’ credibility.

For example, prosecutor Kristen Menke was allowed “to give personal examples in an attempt to vouch for the victims’ credibility,” stating in part that the children should not be expected to perfectly recall “something that happened half of their lifetime ago,” when she couldn’t remember every sexual encounter she’d had with her own husband in the past year.

The Court ultimately agreed with the defense, ruling that the trial court erred by allowing a witness to testify about “delayed disclosure,” by allowing a police detective to give testimony suggesting the appellant was uncooperative during the investigation, and by allowing the prosecutor to give personal examples in an attempt to vouch for the victims’ credibility. The Court concluded that the cumulative effect of the errors warrants reversal of the appellant’s conviction and remanded the case to the trial court for a new trial.

The full opinion can be found here.

See Our Related Blog Posts:

Supreme Court Holds Officers Immune from Civil Suit on Invalid Search

Day-Care Shooting: Victim's Wife Struggles Through Testimony

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

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

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

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

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

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

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

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

The full case can be found here.

Earlier:

Criminal Law Review: New DUI law in effect.

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

Supreme Court Holds Officers Immune from Civil Suit on Invalid Search

• MESSERSCHMIDT ET AL. v. MILLENDER, EXECUTOR OF ESTATE OF MILLENDER, DECEASED, ET AL.

In an important and sure to be controversial decision yesterday, the Supreme Court held that police officers maintain their qualified immunity, even when a search is invalid, so long as their actions are not objectively unreasonable. (full opinion here)

This California case involved the search of a grandmother's home for proof of a weapon alleged to be possessed by Bowen, her grandson, a reputed gang member.  A federal district court found that the police search was unreasonable and the warrant invalid.  A civil suit was brought against the officers in federal court that sought money damages for the alleged constitutional violations.  In ending the matter, the Supreme Court found that the officers were and are protected from civil suit under the doctrine of qualified immunity.

Writing for a six-justice majority in Messerschmidt v. Millender, Chief Justice John Roberts Jr. rejected the suit against the officers, holding that such legal actions can be brought only if the police acted unreasonably. Chief Justice Roberts concluded that the police’s reliance on the warrant entitled them to qualified immunity because that reliance was not “objectively unreasonable.” The NYT reports.

The Court held: Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Where the alleged Fourth Amendment violation involves a search or pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.”

The “shield of immunity” otherwise conferred by the warrant, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.”

The Court further stated: This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, and that Bowen’s sawed-off shotgun was illegal. Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns.

An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” and the warrant application submitted by the officers specific referenced this provision as a basis for the search.

Day-Care Shooting: Victim's Wife Struggles Through Testimony

As I continue to update you on the Day-care Shooting here in Atlanta, I'm finding that the case keeps getting more interesting. The trial has been going on since Monday, and there have been several witnesses called by the prosecution. The most intriguing witness, of course, has been the victim's wife, Andrea Sneiderman. Andrea was drilled over the course of two days by both the prosecution and the defense. What was interesting about her testimony was that she adamantly denied having an affair with the alleged shooter, Hemy Neuman. She continued this denial even after being presented with emails between Neuman and Andrea, and after prosecution brought up her phone records which indicated numerous phone calls between Neuman and Andrea in the days leading up to and immediately following the shooting.

It seems odd to many that both the prosecution and the defense would be so hard on Andrea. The reasoning for the defense is likely that the relationship with Andrea is what triggered Neuman's psychotic break which led him to shoot the victim. As mentioned in an earlier post, Neuman's counsel is presenting an insanity defense claiming that Neuman believed an angel "told" him to shoot the victim, Rusty Sneiderman. The defense is likely to introduce evidence of Neuman seeing demons before the shooting implying that the angel who told him to shoot Rusty was another of those demons. The State, however, seems to be using Andrea's testimony to make it seem like she knew more about the shooting than she has led everyone to believe. While Andrea has never been charged with involvement in the shooting, prosecutors sure are making it seem like she knew it was going to happen.

Some of the evidence presented were phone records indicating 3 phone calls between Neuman and Andrea on the night before the murder. Also, within an hour after the shooting, she called Neuman 6 times!

Some of what Andrea stated on the stand has been contradicted by other witnesses. For instance, the prosecution called a number of witnesses that include hotel workers, bar tenders, and waitresses that witnessed signs of an intimate relationship between Andrea and Neuman. According to the witnesses, they were regularly seen entering and leaving the same hotel room on business trips. This directly contradicts Andrea's testimony that there was never an intimate relationship between her and Neuman. Today, the prosecution called a friend of Andrea's and the victim's father to the stand. Each testified that Andrea called him shortly after she was informed that something had happened to her husband. Andrea stated on the stand that the people who called from the day-care did not tell her what had happened. All they told her was that something terrible had happened and that she needed to go the the hospital right away. She testified that she didn't know her husband had been shot until she arrived at the hospital. The two witnesses called today tell a different story. Each tell the story that a frantic Andrea called each of them while in route to the hospital. During each of these conversations, Andrea told him her husband had been shot. Thus, the jury was presented with two different stories: one, that Andrea didn't know about the shooting until she got to the hospital; and two, that she called two different people in route to the hospital and told each of them her husband had been shot.

Once Andrea's testimony ended, the Judge reminded her that she was still under subpoena. It is believed that she will likely be called to the stand again before the trial ends. What everyone, including myself, will be watching for is if and when Andrea finally elaborates on the extent of her relationship with Neuman. While it is unlikely she will ever be prosecuted for any potential involvement, she is certainly putting herself in a dark light.

The trial was cut short today because of a fire drill, but will resume tomorrow morning at 9:30 a.m. I'll keep you updated!

The Supreme Court: Inmate not in custody for Miranda purposes

In 1966, the Supreme Court in the case of Miranda v. Arizona attempted to create explicit warnings that would remind suspects of their constitutional rights before police interrogation -   specifically, the rights under the 5^th and 6^th amendments to remain silent and to have an attorney during a criminal proceeding.  These “Miranda rights” are now ubiquitous in popular culture, and anyone who has ever watched any of the myriad of crime/lawyer dramas has heard them recited.  What has not been as clear is exactly when the police are required to recite the warnings.  The uncertainty surrounding Miranda was on display most recently in the Supreme Court case Howes v. Fields.

            The trigger for the Miranda warnings is that there are required before a “custodial interrogation” can begin.  At first glance, it would seem clear that a prisoner in jail is in “custody”.  However, in a 6-3 decision, the Court held in Howes v. Fields, that jailhouse questioning does not automatically require Miranda warnings.  While already serving a jail sentence in a Michigan jail, the defendant in the case was removed from his cell and questioned by two armed sheriff’s deputies about another crime for 5 to 7 hours. The questioning began in the evening at some point between 7:00 and 9:00.  Testimony during the trial claimed that during the questioning he stated he no longer wanted to talk but never explicitly asked to return to his cell.  At no time was he read Miranda warnings. 

            Despite these facts, the Court rejected a categorical rule that requires Miranda warnings be given to a suspect who is currently serving a jail sentence.  Instead, they made clear that a determination of “custody” for Miranda purposes should include an inquiry into all of the circumstances.  In Howes, the majority made much of the fact that the defendant was told multiple times that he could leave and return to his cell whenever he wanted.  They also noted that he was offered food and water and was not restrained during the questioning. 

            The dissenting opinion argued that the inquiry should have focused on the overwhelming nature of the “police-dominated atmosphere”.  In many ways such an approach harkens back to the original Miranda decision where the Court sought to clearly limit overreaching by the police who at times utilized brutal interrogation tactics.  The dissent also is clearly concerned that the holding in the case could be read to limit the requirement of Miranda warnings for suspects in jail. 

This decision will cause further anxiety amongst court observers who already fear that the Court is moving towards a repeal of Miranda.  Whatever your opinion, it certainly is surprising to hear the Supreme Court rule that jail inmates are not in “custody”.

** The full opinion can be read here **