State v. Bise: New Standard of Appellate Review of Sentencing Decisions

By Stevie Phillips

In a unanimous Tennessee Supreme Court opinion handed down on September 26, Chief Justice Wade outlines the historical development of state and federal sentencing guidelines.

In short, he observes that the 2005 amendments to Tennessee's 1989 Sentencing Act were passed for the purpose of bringing our sentencing scheme in line with United States Supreme Court sentencing decisions, namely Apprendi and its progeny.  This is the first time since the passage of those amendments that the Tennessee Supreme Court has had an opportunity to address the effect of those Supreme Court decisions on Tennessee's standard of appellate review. 

In the view of the Court, the effect is that "de novo appellate review and the 'presumption of correctness' [has] ceased to be relevant.  Instead, sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a 'presumption of reasonableness.'"

You can read the full opinion here. 

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.

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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

The defense says DA knew of Judge Baumgartner's misconduct

by Lee Davis


The Christian/Newsom case saw another development today as defense attorneys Tom Dillard and Stephen Ross Johnson responded to the prosecution’s motion to have Judge Blackwood removed due to supposed unethical conduct. The defense fired back with a motion of their own accusing district attorney Randy Nichols and his staff of hiding information about Judge Baumgartner’s misconduct while he was still presiding over the case.

The defense counsel’s motion said that they agree that a motion to recuse was appropriate and should have been granted, however, the motion should not be against the current judge. “A motion to recuse should have been filed years ago in this case concerning Judge Baumgartner.”

The current controversy involves the decision by Judge Blackwood to order new trials of the defendants in the Christian/Newsom murder case following news that Judge Baumgartner was addicted to narcotic pills and abused his position to win sexual favors from some of those that he presided over. An investigation by the TBI showed that many of the crimes were committed while Baumgartner was presiding over the Christian/Newsom murder trials.

Previous releases of information have made clear that others were aware of Baumgartner’s misdeed. For instance, two prosecutors who were working on the Christian/Newsom case reported seeing Baumgartner swearing his way down I-40 following jury selection in Nashville for Vanessa Coleman’s trial. It was also revealed that District Attorney Nichols confronted Baumgartner about such behavior and that the judge admitted to drinking a bottle of wine every night to help him sleep.

The defense attorneys brought forward not only these known instances of prosecutorial awareness of Baumgartner’s problems but another not previously made public: “During this visit, former Judge Baumgartner told Mr. Nichols that he was drinking a bottle of wine a night while at the same time going to the Bradford Rehabilitation Clinic (an outpatient center in Knoxville) and Alcoholics Anonymous meetings.”

Not only did Nichols allegedly know this information, but he also kept it secret from the defense attorneys in the Christian/Newsom case. The defense said that there were many other cases before Judge Baumgartner at the time and that attorneys across the region with clients before the judge would have wanted to know about his conduct. The motion said that despite this “extraordinary step of an ex parte direct inquiry of Judge Baumgartner about his problems…” nothing was ever disclosed by Nichols or his office.
For his part, Nichols’ special counsel, John Gill, responded to the allegations saying that the District Attorney’s meeting with Baumgartner had nothing to do with any particular case and therefore was not ex parte contact.

Ex parte communication refers to any contact between a judge and one party of the case without the presence of the other party. Such communication is frowned upon. The prosecution has hinted that the current judge, Blackwood, has engaged in such contact with unidentified people and has complained that it is objectionable. The defense denies any such one-sided communication with the judge, as has Blackwood.

Read: “DA Randy Nichols hid signs of ex-judge Richard Baumgartner's misdeeds, attorneys contend,” by Jamie Satterfield, published at KnoxNews.com.

Location:Tatarrax Dr,Manhattan,United States

State v. Anderson – The Tennessee Court of Criminal Appeals Reverses a Finding of Exigent Circumstances

By Stevie Phillips

Deputies were dispatched to Stoney Anderson’s neighborhood at about 1 a.m. in response to an unknown disturbance involving shots fired.  They encountered a car leaving Anderson’s home.  The occupants told them that they were coming from a small get together and had not heard any shots.  Nonetheless, the deputies proceeded to Anderson’s home and walked around to the back of the house.

As the deputies were walking onto the back deck, Anderson exited the house holding a duffle bag.  When asked, he told them that he had not heard any shots.  At this point, however, the deputies could smell marijuana and saw several people sitting at the kitchen table.  They then entered Anderson’s home and eventually searched the duffle bag where they found marijuana and paraphernalia. 

Before trial, Anderson moved to suppress the evidence found in the bag.  The trial court denied his motion on the basis that exigent circumstances existed to justify the warrantless search, namely that the deputies were responding to an immediate risk of serious harm to themselves and others based on their concern that the bag contained a weapon. 

On appeal, Anderson argued that, even if there were exigent circumstances, those circumstances could not support the search of his bag because the deputies created the exigency when they unconstitutionally intruded into the curtilage of his home.  The Court of Criminal Appeals agreed.

In the Court’s analysis, Anderson’s back deck was “an area to which the activity of home life extends” and therefore plainly within the curtilage of his home.  The Court also determined that the deputies’ intrusion onto the deck without a warrant was unreasonable because they had no information connecting Anderson’s house to the disturbance.  Because any risk to the deputies’ safety resulted from their violation of Anderson’s constitutional rights, even a reasonable fear for their safety could not support the search of Anderson’s bag.

In sum, the exigent circumstances exception to the warrant requirement does not apply if the police themselves create the exigency.  Kentucky v. King, 131 S. Ct. 1849, 1857-58 (2011).  Case dismissed. 

The full opinion can be found here. 

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

Hemy Neuman Found Guilty but Mentally Ill

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

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

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

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

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

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.

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!

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.

TN Supreme Court Affirms Defendant's Four Violent Felony Convictions

• State of Tennessee v. Christopher Lee Davis

The TN Supreme Court decided today to affirm the conviction of Christopher Lee Davis for aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, and attempt to commit first degree murder. The Defendant was one of two men who pulled up to a car wash in Trousdale County planning to rob a man washing his car. The victim, Glen McDaniel, was approached by the two men wearing bandanas over their faces. Both men were African American, and both men were tall. The Defendant was wearing a red hat that had a depiction of a $100 bill embroidered on it. The two men forced Mr. McDaniel into his car, pointing a gun at him the entire time. He drove to an ATM where he was forced to empty his bank account. Mr. McDaniel was told to drive back to the car wash where he pleaded with the two men to take his car and leave him there. They refused. The Defendant first stated that Mr. McDaniel was going with them. At that point, the other man got a roll of black duct tape and began to bind Mr. McDaniel's arms behind his back. Mr. McDaniel then put up a fight. Because of the struggle, the Defendant exclaimed that he was going to kill Mr. McDaniel "right here!" Mr. McDaniel was able to get away on foot while the two men drove off in his Monte Carlo.

The next day, after obtaining a description from Mr. McDaniel of the two men and the Monte Carlo, officers found the car parked at a boat dock. They began the process of investigating the car when a white Crown Victoria slowly pulled into the parking lot where the Monte Carlo sat. According to officers the two men in the car were African American, and when they saw the officers, "they're eyes got as wide as saucers." They jerked the car in the opposite direction, back onto the road and turned around to head back the opposite way. One of the officers, Detective Tarlecky, suspected the people in the Crown Victoria to be the suspects because, in his experience, carjackers often leave cars in remote places only to come back and continue to strip the car of its parts. Detective Tarlecky felt he had enough reasonable suspicion to pull the Crown Victoria over. The driver of the car consented to a search of the car. Pursuant to that search, Detective Tarlecky found the key to the Monte Carlo. At that point, the officer arrested both men. A subsequent search of the Defendant's home also yielded various instruments of the crime including the hat, the bandanas, and the missing cd player from the Monte Carlo.

At trial, the Defendant was convicted on all counts. He was sentence to a total of 49 years in prison. These convictions were affirmed by the Court of Appeals. The Defendant argues, however, that the officer did not have reasonable suspicion to pull the car over. Thus, all the evidence recovered from the warrantless search should have been suppressed.

The Supreme Court stated that in order to determine whether the trial court was correct in concluding that the officer had reasonable suspicion to search the car, it must examine all the fact surrounding the situation. It stated that reasonable suspicion is a lesser standard than probable cause, and that it is "a particularized and objective basis for suspecting the subject of a stop of criminal activity." The Court agreed that the officer had reasonable suspicion. The facts that led to a reasonable suspicion included the general description of the suspects, the fact that the car had not been completely stripped of valuable items, the abrupt and evasive behavior of the Crown Victoria's driver, and the startled and suspicious demeanor of both occupants in the Crown Victoria. Given the totality of the circumstances, the Court explained, a rational trier of fact could have found that the officer had reasonable suspicion to search the car.

The other issue on appeal was whether the evidence presented at trial was sufficient enough to warrant a conviction for attempt to commit first degree murder. In order to satisfy the elements of attempt to commit first degree murder, the state must prove that there exists premeditation and that the Defendant had the intent to commit the crime. The Court again relied heavily on the specific facts to determine whether the intent to kill was present, including the fact that the Defendant pointed his gun at the victim the entire time, and also the fact that he stated he was going to kill the victim "right here." The Court also held that the Defendant's conduct was premeditated since he arrived at the scene with a gun and duct tape, expecting to use both items. A reasonable jury could infer from these facts that the Defendant had the intent to kill and that his actions were premeditated. This was enough to satisfy the TN Statute for attempt to commit first degree murder.

While the Court ultimately affirmed all four convictions, it remanded the case back to the trial court to determine if his sentence (a combination of periods of years of incarceration, some to be served consecutively and others to be served concurrently) was calculated correctly.

Judge from Court of Criminal Appeals Points Out a Discrepancy in Various Statutes in the TN Criminal Code

JOSEPH M. TIPTON

In a concurring opinion to the Court of Criminal Appeals decision in  State v. Deandre Blake, Judge Joseph Tipton agreed with the Court's opinion, but elected to point out a possible discrepancy in various statutes in the criminal code. We think that these are important issues and ones likely to be revisited by the Court.

This case involved convictions by Blake for two counts of first degree murder committed in the perpetration of child abuse and child neglect. Blake argued on appeal that the evidence was not sufficient to uphold the convictions. The Court held that the evidence was sufficient to uphold both convictions.

Justice Tipton agreed but questioned the language of the provisions of the TN Criminal Code including: first degree murder, aggravated child abuse and aggravated child neglect. He emphasized the history of the Tennessee Legislature with regards to amendments to the felony murder statute. Specifically, in 1998, the legislature added aggravated child neglect to the list of predicate felonies in the felony murder statute. During that same year, the legislature amended the child abuse statute to include as a felony, "Aggravated Child Neglect." The intent of the legislature at this point was to "distinguish criminal conduct that caused injury to a child from criminal conduct that adversely affected a child's health and welfare by creating two different offenses, child abuse and child neglect."

However, in 2005, Justice Tipton explains, the legislature enacted a statute that penalized 1) treating a child in a way as to inflict injury or 2) abusing or neglecting a child so as to adversely affect the child's health and welfare." According to Tipton,

"to the present date, the felony murder statute retains the predicate felonies of 'aggravated child abuse' and 'aggravated child neglect' even though the offense of 'aggravated child neglect' contains the alternative that it may be committed through 'abuse."

Therefore, while the legislature seemed to include child abuse as a type of aggravated child neglect, the felony murder statute continues to separate both offenses.

Justice Tipton explained that while this is a blatant discrepancy, the standard of review requires the Court to presume that the legislature did not intend an absurd result and to avoid such result by reasonable construction, to the extent possible. In judging the evidence in the light most favorable to the state, the evidence was sufficient to prove that the Defendant abused the victim and that his beatings had an adverse effect on her health and welfare, and that she clearly suffered serious bodily injury. Therefore, as the statute for felony murder requires, the victim was killed in the perpetration of these acts.

It will be interesting to see when or if the legislature responds to this discrepancy.  Here it may not have made a difference in the end result, but clearly it could be problematic in future cases.

U.S. Supreme Court to Examine the Constitutionality of Unreliable Eyewitness Identifications

As we continue to preview the upcoming season of the U.S. Supreme Court, we will take a look at the case of Perry v. New Hampshire. This case presents the question of whether police misconduct is required to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. Perry was identified by a witness to a burglary during an interview at her apartment by an officer. When asked the first time for a description of the perpetrator, the witness stated it was a "tall black man." When the officer asked for a more detailed description, the witness looked out her door, pointed to Perry and stated the perpetrator was the man standing with another officer in the parking lot.

Normally, when eyewitness identification is excluded for due process violations, it involves police misconduct. For example, police sometimes make picking the suspect out of a line-up unnecessarily easy. If the suspect is a tall and skinny black male, the line-up may consist of white males and heavy-weight black males; picking out the suspect becomes extremely easy for the witness regardless of whether they actually recognize the suspect.

Both parties in Perry's case agree that there was no police misconduct in this situation. However, the witness' identification was highly suggestive since her only option was a tall black man standing next to a police officer. Perry argues that the purpose of excluding highly unreliable evidence at trial is to preserve evidentiary integrity, not to deter police conduct. Based on this argument, whether there is police misconduct should be immaterial.

Given that argument, the future ruling of the Supreme Court may seem pretty clear. The problem, however, is that a favorable ruling for Perry would call into question tons of evidence that has previously been introduced in many trials. If the government violates the defendant's due process rights just by admitting unreliable evidence, then an increased number government witnesses will be barred from testifying.

Many witnesses for the government are not just innocent bystanders to a crime. It is not uncommon for a co-defendant to testify against the defendant at hopes for receiving a lenient plea agreement. Does the fact that the co-defendant may have an incentive to testify for the government make this testimony unreliable? Maybe. Should the fact that it may be unreliable warrant its exclusion? I'm not sure it should go that far. It is the job of the jury to weigh the evidence in order to determine the correct verdict. Instead of taking that job away from the jury entirely, a possible solution might be to educate the jury to the general unreliability of eyewitness testimony. With more knowledge of the potential for unreliable eyewitness identification, the jury may be able to make a more informed decision when deciding whether to give credit to the testimony.

This will no doubt be an important issue before the Supreme Court, and we will continue to watch its progress.

TN Court of Appeals Reverses Especially Aggravated Robbery Conviction of Defendant in Famous Valentine's Day Massacre Case

• State of Tennessee v. Maurice Johnson

The Tennessee Court of  Criminal Appeals recently decided a case involving one of the Defendants in the infamous Valentine's Day Massacre from Bradley County, TN in 1999. One of the defendants, Twanna Blair (Ms. Blair was represented by Davis & Hoss), was acquitted of all charges after a jury trial. Another Defendant, Maurice Johnson, was convicted of one count of especially aggravated robbery and three counts of first degree murder in the perpetration of an especially aggravated robbery. He was sentenced to life without the possibility of parole for each of the felony murder convictions and to twenty-five years for the especially aggravated robbery appeal. The third defendant, Michael Younger, was represented by John Cavett and Kim Parton. Mr. Younger's trial ended in a mistrial after egregious prosecutorial misconduct. The state then dismissed the case against Younger.  This appeal deals with the conviction of Maurice Johnson.

The Defendant argued on appeal, among other things, that the evidence was insufficient to sustain his convictions. Specifically, he argued that the State did not adequately prove that he was in the process of robbing the victims when they were killed. According to him, he was robbed and beaten a few weeks before a party in early February of that year. He suspected that the person who robbed him was OJ Blair, one of the victims of the murders. On the night of the murders, he admits to going to the victims' residence to "get his money back" from the person who robbed him. Johnson argued that the State's only mention of money in this transaction was Johnson's own statement to "get his money back"; citing to other case law, Johnson argued that the owner of the money was Johnson himself rather than OJ Blair. The precedent used, State v. Goins, stated that "the State must show that the property is owned by someone other than the defendant." Without adequate proof, Johnson argued, his convictions should be reversed.

The Court responded to this stating that the TN criminal code defines an "owner" as,

"a person, other than the Defendant, who has possession of or interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exert control over the property."

Under this definition, OJ Blair is not required to be in lawful possession of the money. In this case, OJ was in possession of the money, and the defendant had no authority to exert control over the money. The Court held that a rational trier of fact could have concluded that Johnson committed the three murders in the perpetration of an attempted especially aggravated robbery. The evidence at trial proved that the Defendant went to the residence on the day of the murders with the intent to take "his" money from OJ Blair. That is all the proof necessary to support the Defendant's murder convictions; i.e. murders that were committed in the perpetration of or attempt to perpetrate an especially aggravated robbery.

The Court further held, however, that Johnson's conviction for especially aggravated robbery should be reversed. The evidence presented at trial established that the robbery never progressed beyond an attempt. There is no evidence that the Defendant ever "obtained or exercised control over anything at the time of the homicides." The evidence presented was that nothing in the apartment seemed to be ransacked or disarrayed; there didn't seem to be any missing items in the house and there were no signs of a struggle. This evidence is sufficient, however, to support the lesser included offense of attempted especially aggravated robbery but the statute of limitations on that crime is eight years. Since more than eight years have passed since this incident, Johnson cannot be prosecuted for that crime.

In sum, while the Court agreed with Johnson that there was not enough evidence presented at trial to satisfy the especially aggravated robbery charge, there was enough evidence to satisfy the three murder convictions for a murder committed in the perpetration of an attempted especially aggravated robbery.

The Use of GPS Tracking Devices Without a Warrant is an Upcoming Issue Before the U.S. Supreme Court

Looking ahead at the next U.S. Supreme Court season, one important issue the Court will have to deliberate is whether law enforcement officers need a warrant for the use of a GPS tracking device on a suspect. This is the case of Antoine Jones, a suspected drug trafficker in Washington, D.C. In order to try to tie Jones to a drug house in Maryland, FBI Agents and local law enforcement installed a GPS tracking device on the car registered to Jones' wife. Officers obtained a warrant that permitted a 10-day period of surveillance, but they installed the tracker after the 10 days had expired. Nevertheless, over the next month, law enforcement kept track of every movement of the Jeep, including times when Jones' wife and kids were traveling. Once they tied Jones to the drug house in Maryland, law enforcement was able to execute search warrants for the house and other property. They found large amounts of powder and crack cocaine, and Jones was convicted of conspiring to sell drugs and sentenced to life in prison.

Jones later appealed arguing that the prolonged use of the GPS tracking device without a warrant constituted an illegal search. The D.C. Circuit Court of Appeals ruled in Jones' favor, stating that he had a reasonable expectation of privacy and thus was entitled to Fourth Amendment protection. The Court's reasoning was that Jones had a reasonable expectation of privacy in his movements as a whole over that month, and that his actions were not "exposed" to the public (which would negate the need for a warrant). The Court stated this,

"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not constructively even though each movement is exposed, because that whole reveals more -- sometimes a great deal more -- than does the sum of its parts."

The government argues that based on U.S. v. Knotts, the installation of the GPS tracker did not require a warrant. Knotts held that officers did not need a warrant to install a beeper tracking device to a barrel of chloroform being transported in order to manufacture illegal drugs. The government argues that the use of a beeper and the use of a more technologically advanced GPS tracking device is one in the same.

Jones' attorney, Stephen Leckar argues, however, that Knotts is different from this case because law enforcement in Knotts had to remain close to the beeper in order for it to work. Therefore, they were already tracking the chloroform barrel themselves; the beeper just "augmented their senses." The GPS tracking device, he says, completely supplants the officers' senses, making the two cases different.

What both sides agree on is that this case may prove to be monumental to the status of the Fourth Amendment. Critics worry that a favorable ruling for Jones would open up many avenues of warrantless surveillance, stomping on the privacy rights of citizens. Many, including John Wesley Hall (a criminal defense attorney in Arkansas), do not believe the government is merely chipping away at the Fourth Amendment; rather, it is being "blasted away."

Continue to check back for updates on this and other upcoming issues in the Supreme Court.

What's Next for the U.S. Supreme Court?

An interesting article in the New York Times last week focuses on what lies ahead for the U.S. Supreme Court. Specifically, it focuses on the future of the four left-wing justices individually and as a whole. After a relatively quiet season, these justices may face some tough times over the next few seasons.

The article first discusses the roles of the two newest members of the Court, Justices Sonya Sotomayor and Elena Kagan. The two female justices have voted the same way in 96% of the cases they have heard. With three female justices on the bench, the question becomes whether we will see more gender discrimination cases. If so, the three justices will need to persuade one of the male right-wing justices to strengthen the standard needed to restrict gender discrimination from its current position at the bottom of the spectrum. This task may prove difficult and will likely require heavy debate.

Next, the article discusses the role of the swing-vote, Justice Anthony Kennedy. The author takes language from some recent opinions written by Kennedy, and speculates as to which way he may vote on some of the upcoming issues. For instance, in Kennedy's opinion for the case involving the release of thousands of inmates from California prisons due to inadequate medical care, he states that the health care system in prisons was "incompatible with the concept of human dignity." This may be a hint on how he might rule on President Obama's Health Care Reform Act. To quote the author of the article, "So if prisoners are entitled to adequate care, you'd think the rest of us would be too."

There is also speculation as to whether Justice Kennedy might one day support same-sex marriage because of his opinion in the 2003 case which threw out the sodomy prosecution of two homosexual males.

The last topic of the article deals with President Obama and his ability to appoint federal appellate judges. Since he took office, Obama has yet to appoint any democratic federal appellate judges. This is odd to some liberals because of Obama's strong stance on constitutional rights. Many thought he would load the federal appellate bench with left-wing liberals. Instead, he has left the federal bench with at least 80 vacancies for more than two years.

It will be interesting to see how the Court will progress with the next season. It is sure to be an interesting one with hot-button topics such as the Health Care Reform Act, same-sex marriage, and abortion rights.

*Photo courtesy of Alex Wong/Getty Images North America.*

6th Circuit holds a Sleeping Attorney is Not "Ineffective" Counsel

• Muniz v. Smith

The 6th Circuit heard a case out of Michigan last week that involved a defendant's appeal of a conviction for assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz argued that his 6th Amendment right to counsel was violated because his attorney fell asleep during his trial.

The 6th Circuit first had to decide which rule of law to follow. Muniz argued that the Court should only apply the rule of U.S. v. Cronic which held that there are "circumstances so likely to prejudice the accused that the cost of their effect in a particular case is unjustified and prejudice is presumed." The lower Court previously used the standard of U.S. v. Strickland which held that in order to successfully claim that an attorney was so ineffective as to violate the 6th Amendment, the defendant must prove two things: that counsel's performance was deficient and that the deficient performance prejudiced the defendant.

Applying both rules, the 6th circuit determined that the defendant had not proven that his counsel's slumber had a prejudicial effect on his defense. Applying the rule from Cronic, the Court had to decide whether Muniz had proven that his attorney slept through a "substantial part" of his trial. The only evidence Muniz offered was testimony from two of the jurors who said they saw the attorney sleeping during Muniz's cross-examination. His cross-examination made up only a very small part of the trial transcript. This evidence, the Court held, did not prove the attorney slept through substantial portion of the trial.

Applying the rule from Strickland, the Court had to decide whether the attorney's conduct fell below an objective standard of reasonableness, and if so, if that conduct prejudiced the defendant. The Court held that there is no question that the attorney's conduct fell below an objective standard of reasonableness. Sleeping in court during your client's cross-examination is not reasonable conduct for an attorney. What the defendant could not prove, however, was that his attorney's conduct prejudiced the defendant's defense. In order to do so, Muniz would have to prove that the outcome of the trial would have been different. The evidence against Muniz was so strong, the Court held that it was unlikely that the outcome of the trial would have been different even if the attorney had not fallen asleep.

If an attorney sleeping through examination of his client by the government is not enough to trigger relief, what is? Sounds like the Court is asleep on this issue as well. I understand that in a case--especially one of strong proof--that the court can't be reversing on collateral issues. But I wonder what the trial court was doing. Surely, if two jurors are to believed and counsel was asleep, the Court was aware. I can't think of anything more damaging to the integrity of the judicial process than a sleeping defense attorney. You can imagine what the jurors said, "if his own lawyer doesn't care enough to be awake for the trial you know he's guilty."

Georgia Records Inmate's Execution

Andrew DeYoung was executed Thursday in Georgia for killing his parents and sister in 1993. He was executed by lethal injection using a new anesthetic called Pentobarbital. According to an attorney currently appealing the sentence for another death row inmate, this new anesthetic causes unnecessary pain and suffering. Specifically, it is argued that the drug does not induce a deep enough coma to prevent the immense pain caused by the two drugs that follow. As a way to determine if the drug causes unnecessary pain, the Georgia Supreme Court held on Wednesday that the execution could be recorded.

Georgia is the first state to record an execution by lethal injection. California recorded an execution in the gas chamber in 1992, and the execution of Timothy McVeigh was recorded and broadcast on a closed circuit. No other states with the death penalty currently allow recorded executions.

Critics of the decision by the Georgia Supreme Court fear that although the recording was placed under court seal, the video could be leaked to the public in some way. They also warned of various safety concerns involving the presence of the camera man inside the execution room.

For what it's worth, DeYoung showed no signs of pain during his execution. He remained calm and was able to state as his last words, "I'm sorry for everyone I've hurt."

TN Legislatures push for "Caylee's Law"

After the surprising not-guilty verdict in the Casey Anthony trial, legislatures have drafted a bill known as "Caylee's Law" for the state of Tennessee.

Under the current law, parents are required to report to the police that their child is missing, but do not suffer any penalties if they fail to do so. Caylee's Law will make it a Class A misdemeanor punishable by up to one year in prison and a $2,500 fine if a parent fails to report a missing child within 48 hours of the child's disappearance. Further, if the child experiences serious bodily injury or death during the course of their disappearance, the offense upgrades to a Class C felony punishable by three to fifteen years in prison and a fine of up to $10,000.

State Representative Craig Fitzhugh said he drafted the bill in response to the many emails he received from concerned Tennessee citizens following last week's verdict. Many citizens in Tennessee and around the country were outraged by the verdict, believing Casey had to have done something to Caylee or else she wouldn't have waited 31 days to report her as missing. Naturally, this sparked an online movement to enforce laws like "Caylee's Law" to prevent another situation like Caylee's.

Tennessee joins more than a dozen different states which have drafted different versions of "Caylee's Law." Lawmakers will consider the bill when the legislature comes back into session in January.


Richard Locker of the Commercial Appeal reported on this topic today.