Man on Death Row Gets New Trial in Kingsport Killing

The Tennessee Court of Criminal Appeals recently ruled that Steven James Rollins, a former death row inmate involved in the fatal stabbing of an elderly East Tennessee bait shop owner, ought to receive a new trial.

Rollins was convicted of first-degree murder and robbery in the killing of 81-year-old James T. Bussell inside Bussell’s Fisherman’s Paradise bait shop near Kingsport, TN in August of 2001. Rollins was originally sentenced to death, but the sentence was overturned in 2010 and a new sentencing hearing was ordered. The decision was then appealed to the Tennessee Court of Criminal Appeals which decided to reverse his conviction.

The Court of Criminal Appeals ruled that Rollins had received ineffective assistance of counsel and that the trial was also defective due to a “biased juror.” The two issues were related given that the Court found that Rollins’ attorney failed to properly question prospective jurors to help with weeding out those with biases.

The problematic juror was identified as “Juror 9.” In a 2008 affidavit, the juror admitted to knowing Bussell and having bought bait from him once a week before he was killed. The juror said that he had made up his mind about Rollins the moment they seated the jury. He said he could tell just by looking at him that he was guilty. The juror sealed the deal about his own bias by admitting that, in his opinion, “death is the only appropriate punishment” for someone who is convicted of murder.

The Court of Criminal Appeals said that Juror 9’s failure to admit his friendship with Bussell amounted to a presumption of bias. Given this bias, the Court found that Rollins was denied his right to a fair and impartial jury. The Court went on to highlight how Rollins’ attorney failed to ask jurors if they knew the victim, something the Court found to be “objectively unreasonable” and amounting to a “deficient performance.”

To read the full opinion, click here.

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Charges of Terrorism in Tennessee Often Fall Apart

A report out of The Tennessean has shown that the state is falling down when it comes to terrorism prosecutions, a charge that is apparently difficult to have stick. The paper found that only nine people in the state have been arrested on terrorism charges since the state’s laws went into effect in 2002. All but one of the defendants either had their charges dismissed or were convicted on lesser charges.

The law in Tennessee makes it a felony to commit any crime intended to “intimidate or coerce” civilians or the government or to disrupt government. The offense is punishable by up to 25 years in prison for a first offense.

The exact reason for why terrorism charges are so hard to make stick is difficult to pin down. It could be many things; mental illness on the part of the defendant will often excuse or reduce the charges. Prosecutors often end up taking into consideration the intent of the defendant making the threats as the words may have been said as a result of extreme emotional distress on their parts and not meant to actually cause harm.

Davidson County recently saw their first such terrorism–related arrest when Amal Abdullahi told a CEVA Logistics co-worker on September 1 that she was ready to die for Allah and that America was full of nonbelievers who should die. Police said she also told the co-worker that nobody pays any attention to her and “she should pick up a gun and shoot all these people.”

The incident was not reported to police until September 6, and CEVA could not be reached for comment. Abdullahi is currently free on $50,000 bond after family was able to post her bail. She is expected to be in court again on October 10 and has retained an attorney

Another terrorism-related arrest that fizzled happened in 2008, when a Middle Tennessee State University student was arrested after, police said, he set fire to his dorm and threatened large-scale devastation on the campus. Rather than admit to terrorism, he pleaded guilty to charges of setting fire to personal property and filing a false report.

On Halloween 2010, a local guy in Chattanooga was arrested on a terrorism charge after he called 911 to say there was an active shooter and several people had been wounded in the fictitious attack. Again, prosecutors dropped the terrorism charge and the man eventually pled guilty to a charge of making a false report.

Source: “TN terrorism charges are rarely upheld,” by Brian Haas, published at WBIR.com.

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Tennessee Stats concerning for Domestic Violence

October is observed as Domestic Violence Awareness Month nationwide and according to a recent study, Tennesseans need to be more aware. A new study by the Violence Policy Center found Tennessee ranks fifth in the country when it comes to the number of women being murdered by men in domestic violence situations.

Domestic violence charges can result from a number of instances including domestic abuse, spousal abuse, battery, emotional abuse, economic deprivation, child abuse, sexual assault, and stalking. There are many serious charges that can result from a misunderstanding or from an unfortunate escalation of emotions during an argument.

The penalties for a domestic violence charge in Tennessee can be life altering. Domestic assault is a Class A Misdemeanor, meaning it carries a maximum jail sentence is 11 months 29 days in jail and a maximum fine of $200. It is common for domestic abuse convictions to result in restraining orders, loss of child custody rights, criminal penalties, fines, and a tarnished reputation. Along with jail time, a conviction will also carry supervised probation. The probation will last for 11 months 29 days, although shorter probation periods are up to the discretion of the judge or prosecutor. As part of the conditions of probation, the defendant will be subject to regular and random drug screens and have to pay probation fees and court costs on schedule, which can be as much as $100 per month.

With a domestic assault conviction, the defendant has a prohibition on owning or possessing any firearms, including hunting rifles. If you are employed as a police officer, security guard or other profession where you must carry a firearm, a conviction can thus mean a loss of employment. It may prevent you from getting a job or an apartment.

The state has attempted to reduce the numbers of domestic violence incidents but experts say a common strategy employed elsewhere, merely increasing jail time for perpetrators, will be difficult to institute in Tennessee. Increased jail time supposedly helps because research shows that the perpetrator, once released, goes out and finds another victim and the cycle begins anew. The problem with increasing sentences here is that the state is already spending millions holding existing criminals in overcrowded prisons and cannot afford the millions more it would take to substantially increase domestic violence sentences.

Source: “Is Southern Culture Behind Domestic Violence Increase?,” published at NewsChannel5.com.

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Saying, “I have a gun” during a bank robbery not always enough to require sentencing enhancement

On September 23, 2010, James Wooten robbed a bank in Gordonsville, Tennessee. In the midst of the robbery Wooten calmly walked up to the teller and told him that he was going to rob the bank. At first, the teller doubted Wooten given his tone, the teller felt like Wooten was just joking around. However, the teller decided to hand over $4,130 in cash later after Wooten said that he had a gun and again demanded money.

The teller said that the bank had told all its employees to hand over money during a robbery without asking further questions. Thus, once Wooten’s demand appeared to be real, the teller opened the register and gave Wooten the money he requested. The teller stated that Wooten had his hands on the counter and was not reaching for anything and that it did not seem as if Wooten intended to harm anyone in the bank. The teller specifically said that he never felt threatened by Wooten during the robbery, despite his statement concerning the gun.

Wooten was arrested and pled guilty in federal court to one count of bank robbery. Because he had a gun at the time of the robbery and made a threat about the gun, he was given a sentencing enhancement for making a death threat. Wooten disputes this enhancement; saying that despite his use of the phrase, “I have a gun,” his demeanor was so nonthreatening as to eliminate fear from a reasonable teller’s mind that his or her life was actually in danger.

The Sixth Circuit noted that the threat of death need not be explicit for a sentencing enhancement to occur. Although the statement, “I have a gun,” lacks a certain force more commonly found in such threats, there have been cases that have determined that the phrase can be sufficient on its own to warrant the threat-of-death enhancement. The Sixth Circuit said that it has clearly established that the statement “I have a gun” can constitute a threat. However, it has not been established as a per se rule that the statement “I have a gun” always constitutes a threat of death.

The Court said that where potentially mitigating factors are present, the court must go a step further and evaluate the overall circumstances of the robbery to determine whether a reasonable teller in that particular scenario would have perceived a threat of death. So, while the statement “I have a gun” certainly can be enough to support the threat-of-death enhancement, the statement is not necessarily enough, especially when circumstances exist that undermine the threatening nature of the statement.

The Court says that facts such as the robber’s statements, body language and overall demeanor, tone of voice, and mode of communication are all relevant to the analysis. The Court also stated that it believes that a teller’s perceptions of an incident also play a role in the objective evaluation of whether a reasonable teller in that specific teller’s shoes would have experienced a fear of death.

Applying the rules to this case, the Court found that, despite Wooten’s use of the phrase, “I have a gun,” the circumstances of the robbery did not warrant application of the threat-of-death enhancement. The teller’s description of Wooten’s nonaggressive demeanor suggests that Wooten would not have appeared threatening to a reasonable observer. Wooten approached the tellers calmly, placed both hands in a visible position on the counter, and softly said that he was engaged in a robbery. Wooten’s demeanor was described as “nonthreatening,” and Wooten was not engaged in any conduct that would suggest intent to harm anyone. Finally, the Court pointed out that the teller himself explained that he handed over the money because he had been trained to do so, not because of any perceived danger.

In this case, the Court agreed with Wooten’s argument and decided to reverse the district court’s sentencing enhancement, vacate his sentence and remand the case for resentencing.

To read the full opinion, click: U.S. v. James Wooten

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The Tennessee Supreme Court on Passing Worthless Checks

By Stevie Phillips

Justice Janice M. Holder, in a unanimous decision of the Tennessee Supreme Court, held yesterday that the misdemeanor "crime of passing worthless checks involves an element of dishonesty or false statement" and can therefore be used to impeach a defendant's credibility so long as its probative value outweighs its prejudicial effect.

Under Tennessee Rule of Evidence 609(a)(2), a witness may be impeached with a prior conviction if the crime involves dishonesty or false statement.   Here, the defendant, Wanda F. Russell, argued that an honest mistake can result in a conviction for passing a worthless check.

In determining whether a crime qualifies, a court assesses the elements of the offense, not the circumstances surrounding its commission. Here, the Court applied the rules of statutory construction to the statute setting out the crime of passing worthless checks, Tennessee Code Annotated section 39-14-121(a)(1). The Court concluded that the statute only criminalizes dishonest conduct, not honest mistakes.

Read the full opinion here.

- Posted using BlogPress from my iPad

Evidence at issue in 2006 Sierra Carpenter child death case

MONDAY, OCTOBER 1, 2012 AT 12:06PM
by Todd South

In this 2011 file photo, Traci Carpenter looks up at her defense attorney, Lee Davis.
(Photo by Alex Washburn /Chattanooga Times Free Press.)

Six years ago emergency workers carried a gasping 18-month-old girl covered in bruises into an ambulance, trying to save her life.

Two days later, Sierra Carpenter died.

Police believe that only two people could have caused the bleeding in her brain and in her eyes, the deep bruising in the recesses of her ears — the fatal injuries that led doctors to take her off life support.

One of those people — her mother's boyfriend — was acquitted by a jury. And there is some doubt whether the other —Sierra's mother — ever will face trial.

At least four trial dates for Traci Carpenter have come and gone. She faces more than two decades in prison if convicted of aggravated child neglect, the charge lodged against her.

But if Tennessee's highest court agrees with Carpenter's lawyer, prosecutors may lack enough evidence to win a conviction and could be forced to drop the case.

Last week the Tennessee Court of Criminal Appeals denied her attorney's request that it review the charges against her before she stands trial.

Now attorney Lee Davis says he will ask the Tennessee Supreme Court for a rare pretrial ruling on what he sees as changes in admissible evidence in child neglect cases.

Davis argues that a state Supreme Court decision in a similar case earlier this year now prevents prosecutors from showing a jury any evidence of prior abuse.

Sierra's death tore the Carpenter family apart, putting relatives on the witness stand before television cameras to talk about the woman's mothering. More than one said Carpenter -- whether or not she hurt Sierra -- did put the child at risk for abuse.

Carpenter has remarried and had another child, a girl now almost 9 months old.

Davis contends that prosecutors want to blame Sierra's death on Carpenter because they failed to win a conviction against her then-boyfriend, Brian Rutherford.

Prosecutors maintained all along that even if Rutherford had been convicted, Carpenter knew that Sierra was being hurt and did nothing to stop it.

•••

Carpenter's case shows some of the difficulties prosecutors face in proving guilt when children die of abuse, and the challenge defense attorneys face in keeping the focus on the law and not letting emotion take over.

Testimony in Rutherford's trial centered on the autopsy finding that bleeding in Sierra's brain could have been weeks or months old.

In hearings leading up to Carpenter's potential trial, prosecutors have worked to demonstrate a "pattern of abuse" they believe the mother should have stopped.

Davis has fought to keep much of that evidence from the jury, writing that it would prejudice them against his client when the indictment deals only with the few days leading up to Sierra's death.

Carpenter's mother, Sue Petty, testified that she cared for the toddler for two days before dropping her off with Carpenter and Rutherford. She said the girl then had a single bruise on her forehead.

•••

Two days after Sierra's April 27, 2006, death, investigators named Rutherford and Carpenter as "persons of interest." They asked Carpenter to take a polygraph test over Sierra's abuse. She passed.

Nearly a year later the pair were charged: Rutherford with murder and a sentence of life with the possibility of parole, Carpenter with neglect and up to 25 years in prison.

When Rutherford went to trial in November 2008, his defense team heaped all the blame on Carpenter.

"It's important to punish the right person, isn't it?" defense attorney Myrlene Marsa asked the jury during opening statements. "The issue is about who did it."

The defense called witnesses who testified that the teen mother mistreated the toddler, jerking her around, thumping her on the head. Other witnesses said they couldn't believe Carpenter would hurt her child, but they blamed her for leaving the girl in Rutherford's care.

When Carpenter testified, she admitted she would drive Sierra around in a car while high on methamphetamine and marijuana.

She told the jury she had done many things she wasn't proud of but had never harmed her daughter.

At the end of a two-week trial, the jury took less than an hour to acquit Rutherford.

Then prosecutors began preparing for Carpenter's trial.

Davis objected and filed documents saying so. He had expected that since his client had cooperated, testified against Rutherford for the prosecution and opened herself up for such deep public scrutiny, that the charge against her could be dismissed.

It wasn't.

•••

In the years since, Davis has battled to obtain what he considers a fair trial for his client.

He has sought to limit photographs, recorded interviews and certain experts' testimony from reaching a potential jury.

Hamilton County Criminal Court Judge Don Poole has considered each motion, balancing the efforts by Davis and prosecutor Neal Pinkston, who has taken over the effort to convict Carpenter.

University of Tennessee law professor Dwight Aarons, who specializes in criminal law, said the work in the Carpenter case is typical of an aggressive defense attorney and an equally committed prosecutor attempting to build their best cases through evidence.

The riskiest outcomes occur when a case gets before a jury, he said.

"Unless you have somebody at the scene who says this is what happened, then you're just left to infer from [evidence]," Aarons said. "Those are just guesses; they're educated guesses, but just guesses at what happened."

That's what makes pretrial work so crucial.

"Most trials are won or lost before the first juror is sworn in," Aarons said. "To some extent, to have a trial is a failure."

(reprinted from Chattanooga Times-Free Press, Oct.1, 2012)

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

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

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

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

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

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

Full opinion can be found here.

U.S. Supreme Court to Rule on DUI Forced Blood Draws

By Jay Perry           

            The U.S. Supreme Court has just granted certiorari to hear an appeal to decide whether the police can force a suspected drunken driver to submit to a blood test without a search warrant.  The case is an appeal from a decision by the Missouri Supreme Court, Missouri v.McNeely, which held that in a typical DUI case the police must obtain a search warrant before forcing a suspect to provide a blood sample.  The State argued that the delay in obtaining a warrant would allow for the alcohol in a suspect’s blood to naturally dissipate and thus the “evidence” would be destroyed.  The question before the Supreme Court then is whether the “exigent circumstances” exception to the 4^th Amendment warrant requirement allows for the police to force a blood draw from a DUI suspect.    

            

            The decision by the Supreme Court will be very important because as it stands there is considerable variety in state laws regarding forced blood draws.  Here in Tennessee, there are currently a few situations in which the police can obtain a blood sample without either the suspect’s consent or a search warrant:

            1) the suspect is involved in an accident resulting in the injury or death of another;

2) the suspect has a previously been convicted of DUI, Vehicular Homicide by Intoxication, or Aggravated Vehicular Assault;

3) the suspect has a child passenger in the car under the age of 16.

In each of the three situations above, if police have probable cause to believe that a suspect has committed a DUI, they can force that person to give a blood sample without consent.

Even if one of the above situations isn’t present, a DUI suspect will still have to consider whether to provide a blood sample.  In Tennessee, all persons driving are presumed to have given consent to a test to determine the alcohol content of their blood.  Failure to provide either a blood or breath sample is a violation of Tennessee’s Implied Consent Law.  That provision (TCA 55-10-406), holds that refusal to submit to a blood alcohol sample is a violation of state law.  Importantly, a violation of the Implied Consent Law is not a criminal offense but does carry a loss of driving privileges for one year.    

The Supreme Court’s decision will answer the question of whether a forced blood draw violates the 4^th Amendment’s prohibition against “unreasonable searches”.  The constitutionality of the above Tennessee provisions will likely be affected by how they rule, and so the case merits attention.  Oral arguments will be scheduled sometime in early 2013.  

Recent incident shows that Tennessee bank robbery doesn’t pay

Authorities in Murfreesboro recently released images of an individual they say tried unsuccessfully to rob a local Bank of America branch. The police are investigating an afternoon attempted robbery in the area and believe that the release of the security camera footage will lead to the suspect’s capture. The police report reveals that the bank teller was threatened during the robbery and was asked to hand over $10,000.

The teller told the police officer that a white male wearing a gray hoodie approached her teller station and handed her a folded note. The note said, “Give me $10,000 and NO alarms.” The teller then began looking around to get someone’s attention, but no one noticed. While she was looking the suspect began saying “No. No. No” and, after getting more nervous, grabbed the note and ran from the building.

Turns out before embarking his bank-robbing spree, the man should have stopped to consult with the economists at the Royal Statistical Society and American Statistical Association. The two groups recently published a study on the economics of bank robbery and determined the crime doesn’t pay off in the end.

The researchers looked at the average loot from a bank robbery in the U.K. over a three-year period and found it came to only $31,786. Maybe not terrible, but not much given the risk associated with the crime. The researchers went further; determining that there were on average 1.6 robbers involved in each heist, which meant the total per robber came to only $19,865.

The numbers were even worse for American criminals, with the average robbery netting criminals only $4,330. Going one step further shows just how bad a decision bank robbery actually is. The group says that a full one third of attempted bank robberies failed, often resulting in lengthy prison terms, thus further diminishing any expected payout.

Read: “MPD seeking attempted bank robber,” by, published at DNJ.com.

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When GPS Tracking Violates Privacy Rights

For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.

The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.

The majority opinion held that there was no constitutional violation of the defendant’s rights because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”

The panel drew a distinction between its ruling and a ruling by the Supreme Court last January in United States v. Jones, which held that the placement of a hidden device on a suspect’s car without a valid warrant violated the Fourth Amendment. The three-judge panel said that its case, in contrast, did not involve physical trespass on the suspect’s private property. The judges also asserted that the tracking in the case before them was not sufficiently “comprehensive” to be “unreasonable for Fourth Amendment purposes” and trigger the need for a warrant — even though the police tracked the defendant’s every move for three days, hardly a negligible time period.

The Jones case suggests that the Supreme Court’s future direction may be more protective of privacy in cases involving new and potentially invasive technologies. In two concurring opinions in that case, a majority of justices agreed that “longer-term” GPS monitoring impinged on expectations of privacy.

As Justice Sonia Sotomayor stressed in her concurrence, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If anything, tracking someone using cellphone GPS capabilities is even more invasive than following someone with a GPS device attached to a car since it allows for 24/7 coverage. Most people carry their phones wherever they go, including into their homes.

The circuit court panel majority concluded that because the defendant’s phone emitted information that could be picked up by law enforcement agents, he had no reasonable expectation of privacy and thus no warrant was needed to conduct the surveillance. This was at odds with yet another Supreme Court ruling, in 2001, involving a thermal-imaging device aimed at a private home from a public street.

Carrying a cellphone should not obliterate privacy rights or the Fourth Amendment’s warrant requirement. The full Sixth Circuit should grant a pending request for a rehearing and reverse the panel’s damaging ruling.

Editorial in Sunday, September 23, 2012 New York Times