Nominating Commission selects three candidates for Court of Appeals Eastern Section

Jerri S. Bryant, Chancellor


The Judicial Nominating Commission met in Chattanooga today to review the 11 applicants for the Court of Appeals Eastern Section vacancy which serves 13 judicial districts in east Tennessee. The vacancy was created by the retirement of Court of Appeals Judge Herschel P. Franks.


After holding a public hearing and interview for each applicant, the Judicial Nominating Commission has recommended the following three candidates to Governor Bill Haslam:

Jerri S. Bryant
Chancellor
10th Judicial District
Athens, Tennessee

Michael A. Faulk
Solo Practice/State Senator
The Faulk Law Office
Church Hill, Tennessee

Thomas Radcliffe Frierson
Chancellor
3rd Judicial District
Morristown, Tennessee

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. 

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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TN Supreme Court Reiterates Definition of “Serious Bodily Injury”

The Tennessee Supreme Court ruled in a recent opinion, State of Tennessee v. Michael Farmer and Anthony Clark, that a gunshot wound is not necessarily the same thing as a serious bodily injury. The state’s high court clarified the legal standards in an opinion published late last month in the case of two men found guilty of especially aggravated robbery for shooting a man in the leg during a 2008 Memphis robbery.

The victim, Terrell Westbrooks, was shot while trying to flee from the two burglars who burst into an apartment where he and a friend were illegally purchasing prescription painkillers. Westbrooks testified that he did not at first realize he had been shot, a through and through injury that left surprisingly little damage. In fact, Westbrooks said that he was treated at a hospital and released in around an hour.

The opinion, written by Justice Sharon G. Lee, said the prosecutors failed to show that Westbrooks was at risk of dying, lost consciousness or suffered extreme pain, disfigurement or substantial impairment. Those are the standards spelled out in the state statutes that define serious bodily injury. Tenn. Code Ann. § 39-11-106(a)(34) states that  “serious bodily injury” is defined as “bodily injury that involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; [or] (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.”

As a result of the failure to demonstrate the statutory definition, the Court threw out the especially aggravated robbery convictions for Anthony Clark and Michael Farmer. It instead ordered the trial court to sentence the two on the much less serious charge of aggravated robbery.

In a concurring opinion, Justice William C. Koch Jr. said the case demonstrated the need for criminal prosecutions going forward to use expert medical testimony when trying to prove serious bodily injury. “We should candidly acknowledge that some injuries which appear bloody and gruesome to laypersons may not have a substantial risk of death, while other injuries that are seemingly benign might, in fact, pose a substantial risk of death.”

To read the full opinion, click here.

See Our Related Blog Posts:

Motion for New Trial may be amended

Tennessee Supreme Court Develops Training Video on Providing Legal Services to Persons with Disabilities

Tennessee Court of Criminal Appeals Discusses Factors for Determining Whether a Plea was Voluntary and Intelligent

by Lee Davis

• Jonathan Lawrence v. State of Tennessee

Jonathan Lawrence appealed Davidson County Criminal Court’s rejection of his petition for relief from his convictions on two counts of especially aggravated kidnaping, one count of aggravated kidnapping and three counts of aggravated robbery which resulted in a sentence of 25 years. Lawrence contends he did not plead guilty knowingly, intelligently or voluntarily. 

In 2008 Lawrence was indicted on the above-mentioned charges following one incident in June of that year where he and a friend robbed a man at gunpoint and then forced him into his apartment while they fled. Just a few days later Lawrence robbed another man, robbing him at gunpoint and then demanding he drive him to an ATM to withdraw money. His partner in crime stayed behind, forcing his way into the man’s apartment and repeatedly raping his girlfriend. In 2009 he pled guilty and was sentenced to 25 years to be served at 100 percent. 

The Court of Criminal Appeals said that for a plea to comply with the Constitution it must be both voluntary and intelligent. A defendant must be advised of the consequences of a guilty please and must understand those consequences. The court says that in answering this question it looks at the following factors: 1) the relative intelligence of the defendant; 2) the degree of familiarity with criminal proceedings; 3) whether he was represented by competent counsel; 4) extent of advice from counsel; and 5) the reasons for his decision to plead guilty.

The Court concluded that the lower court was correct in denying Lawrence’s petition for post-conviction relief. The Petitioner was informed by the court of his right to a jury trial and of the consequences of a guilty plea. The court then asked if Lawrence understood and he said “Yes.” Lawrence had a credible attorney advise him of the plea arrangement before entering into it and Lawrence made the choice to accept on his own. Thus, his guilty plea was knowing, intelligent and voluntary. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test

Tennessee Court of Criminal Appeals says stops based on dirty license plates constitutional

by Lee Davis

• State of Tennessee v. Eric A. Martin

Eric Martin was stopped by a police officer for violation of a the law requiring that a car license plate be maintained free from foreign materials and in a clearly legible condition. Martin’s plate was covered in oil or dirt and was illegible. The officer soon discovered that Martin was driving on a revoked license and arrested him.

Martin struck a plea deal with prosecutors and pled guilty to driving on a revoked license, fifth offense. He was sentenced to 11 months and 29 days but the trial court suspended all of the sentence but for the 29 days and placed Martin on probation. Martin has now appealed the section of Tennessee Code dealing with the condition of license plates. The Court of Criminal Appeals held that no question of law was raised by the appeal and it was dismissed.

Martin claims that T.C.A. Section 55-4-110(b) is unconstitutionally vague and overbroad in that fails to establish sufficient guidelines for determining that a tag is free from foreign materials and clearly legible. Martin claims the law as written permits police officers with far too much discretion. The statute specifically states:

Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12) from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible. No tinted materials may be placed over a license plate even if the information upon the license plate is not concealed.

The Court held that the officer in this case executed a traffic stop due to an equipment violation, something that the Tennessee Supreme Court has found to be a valid reason to stop a vehicle. As a result, the traffic stop was constitutional. After a brief investigation the officer determined that Martin was driving on a revoked license. The question that Martin now wants reviewed does not concern the revoked license, but the license plate. The Court found that the license plate issue was not dispositive to the case at trial. 

Even if the issue were dispositive the Court stated that both Tennessee state courts and the U.S. Court of Appeals for the Sixth Circuit have found that traffic stops made pursuant to T.C.A. Section 55-4-110(b) are valid and constitutional.  The bottom line is that police can pull over a vehicle if the license is illegible--that is a valid reason to base a police stop.

To read the full opinion, click here.

Earlier:

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

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

Lee Davis practices criminal law in Chattanooga and across Tennessee.

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

by Lee Davis

• MICHAEL DESHAY PEOPLES, JR. v. STATE OF TENNESSEE

The Petitioner in this case, Michael Deshay Peoples, Jr., was indicted for first-degree felony murder, especially aggravated robbery and one count of aggravated kidnapping. A jury found Peoples guilty as charged and sentenced him to life in prison for felony murder. Other charges were given varying sentences determined at a sentencing hearing. Petitioner filed for post-conviction relief. 

Post conviction is little known outside of criminal law circles, this is the process by which a defendant challenges a conviction.  A defendant may challenge the validity of a conviction on constitutional or the effectiveness of his trial counsel--two common challenges. Post conviction challenges are made after exhausting the well known direct appeals process and may be made sometimes several years after the original conviction. Here the Court of Criminal Appeals found no error and affirmed the dismissal of Peoples’ petition. The discussion below concerns Peoples' post conviction challenge.

Peoples filed his petition for post-conviction relief and alleged, merely by checking boxes on a form--not by specifically detailing facts--that his convictions were based on evidence gained by an unconstitutional search and seizure and that he was denied effective assistance of counsel. The form required that he attach a separate sheet of paper containing facts support his petition, Peoples failed to attach such a document and gave no facts in support of the grounds he alleged.  It is not uncommon for individuals to start with this form an the courts allow it as many petitioners are incarcerated and are proceeding without counsel (pro se) at this late stage in their case.

This petition for post-conviction relief was dismissed because it failed to present a full disclosure of factual grounds in which relief would be appropriate. Tennessee law allows for the dismissal of such complaints when the necessary facts have not been specifically alleged. That’s precisely what took place in this case.

People’s claims he should have been allowed to amend his petition to bring it into compliance. The Court of Criminal Appeals said that Peoples made no attempt to comply with the statutory requirements for his post-conviction relief petition. Merely checking the boxes contained on the form does not comply with the requirement that specific facts be alleged in support of a petitioner’s claims. The Court of Appeals concluded that while lower courts should be more lenient in construing pro se filings, no courts should be required to ignore a failure to provide factual support for claims raised. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Refuses to Overturn Murder Conviction Based on Self-Defense

Tennessee Court of Criminal Appeals upholds Conviction for DUI: no requirement for police to give blood or breath test

Tennessee cases on appeal are handled by the lawyers at Davis & Hoss, PC

Tennessee Court of Criminal Appeals: 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?

TN Court of Criminal Appeals Reverses Evidence Tampering Conviction

• State of Tennessee v. Ashlee N. Appleton

The Tennessee Court of Criminal Appeals decided the case of Ashlee Appleton last week. A jury convicted Appleton of tampering with evidence. The case centers around a murder that occurred on September 8, 2009. There are no accusations that Appleton had any involvement in the murder itself; however, Appleton was charged with tampering with evidence because she admitted to disposing of the gun that was used to commit the murder.

According to Appleton's written confession, given voluntarily after being advised of her Miranda rights, Appleton was at the house with a bunch of her friends. While she was standing in the yard of the house, she heard a pop that sounded like a firework from the other side of the house. She immediately got in her car with some of her friends and drove off. Amidst her journey back to Chattanooga, Jeresse Edwards, the accused shooter, informed Appleton that he had the gun in her car. Wanting to get the gun out of her car, Appelton said she threw the gun off a bridge around the Nickajack Dam.

The State relied on this evidence at trial. Once Appleton was convicted, she appealed to this Court arguing that the State did not satisfy their burden of proving beyond a reasonable doubt that she tampered with the evidence.

The Court of Appeals agreed. The standard used by the Court was "corpus delicti", which means the "body of the crime." In order to obtain a conviction, the State must prove the corpus delicti of tampering with evidence. Two elements are required to prove the corpus delicti: first, that a certain result has been produced, and, second, that the result was created through criminal agency. Because of this standard, the Court reasoned, when a Defendant confesses to a certain crime, some corroborating evidence is required to establish the corpus delicti of the offense charged. The problem with the State's case, the Court held, was that they did not produce enough corroborating evidence to prove that Appleton tampered with the evidence. Specifically, the defendant never admitted to knowing that a gun had been fired, or that anyone had been killed. Further, investigators never found the gun, and the State did not produce any evidence that the Defendant had knowledge that the gun had been used in a crime. Without this corroborating evidence, the Court held, the conviction must be reversed.