U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at NYTimes.com.

TN Supreme Court Refuses to Overturn Man’s Felony Murder Conviction

The Tennessee Supreme Court recently denied an appeal by a man from Knoxville attempting to have his felony murder conviction overturned. The man, Travis Kinte Echols, had been sentenced to life in prison and appealed claiming that there had been a number of errors during his trial.

Echols claimed that the trial court failed to suppress a statement the defendant made to the police which he said was the product of an unlawful arrest. Echols appealed his case to the Tennessee Court of Criminal Appeals which found that the arrest lacked probable cause. Despite the unlawful arrest, the Court of Appeals said that the statement qualified as harmless error and thus did not serve as grounds for reversal.

Echols appealed again and the Supreme Court agreed to hear the case. In a unanimous decision, the justices rejected Echols’ argument that his conviction should be reversed because the police did not have probable cause when they arrested him back in 2005.

Echols was arrested and ultimately convicted of murdering Robert Steely in the parking lot of the Townview Towers apartment complex in East Knoxville. During his interrogation, Echols waived his right to remain silent and, in the course of a conversation with officers, admitted to shooting Steely, but said that he only did so in self-defense. Specifically, Echols admitted to shooting Steely and then disposing of the weapon. This claim of self-defense did not ring true to the jury and they found him guilty of felony murder during a robbery of Steely, ultimately sentencing him to life in prison.

The Supreme Court heard the case and disagreed with the Court of Criminal Appeals. The High Court ruled that the police were able to establish probable cause for the warrantless arrest of Echols and, given this probably cause, the statement Echols later made to investigators was admissible at trial. The Supreme Court did find that the trial court incorrectly limited cross-examination of two witnesses, but that these errors were harmless and did not affect the final result of the trial. As such, the judgment of the lower court convicting Echols of felony murder was upheld.

To read the full opinion, click here.

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

The Tennessee Court of Criminal Appeals on Split Confinement

By Stevie Phillips

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.  

Texting While Driving Leads To Homicide Conviction/Jail Time

by Jay Perry

            Recently, Aaron Deveau, an 18 year old student from Massachusetts was sentenced, to 2 ½ years with one year to serve in prison for a car crash in 2011 that killed one person and serious injured another.  There was strong evidence that Mr. Deveau (who was 17 at the time) had been texting while driving, and he was convicted of motor vehicle homicide and negligent operation while texting.  The second charge is a relatively new criminal charge in Massachusetts and applies only to cases involving injury.  Mr. Deveau also had his driving privileges suspending for 15 years.  

            While Tennessee does not have a criminal charge specifically related to texting, our vehicular homicide law prohibits the reckless killing of another when driving via “conduct creating a substantial risk of death or serious bodily injury to a person.”  Such a crime is a Class C Felony carrying between 3-6 years of punishment.  There is also the charge of reckless homicide, a Class D (2-4 years), which prohibits the “reckless killing of another.” 

            The conviction of Mr. Deveau (and sentence) demonstrates that many states are recognizing the dangers of “texting while driving”.  Text messaging while driving is currently banned in 39 states with another 5 states banning it for younger drivers.  While it is hard to know exactly how many crashes are due to texting, it is estimated that “distracted driving” was the cause of 18% of all accidents in 2010.  These accidents (in 2010) were responsible for the death of 3092 people with an additional 416,000 estimated injuries. 

Despite these laws and sobering statistics, it does not appear that many people fully understand the risks.  A recently released Centers for Disease Control and Prevention (CDC) study found that 58% of high-school seniors admitted to texting or emailing while driving in the past month.  For high school juniors the percentage who admitted doing so was 43%.  The survey involved questioning more than 15,000 high school students from across the country.  In many ways, these results aren’t surprising.  Anyone who has been a teenager (or who now is the parent of one) understands that most adolescents don’t fully appreciate risk.  There is increasing evidence that the part of the brain (the striatum) that seeks rewarding experiences matures earlier than the prefrontal cortex, which regulates the ability to control behavior and overcome impulsivity.

          There are underway a great many educational campaigns to help students appreciate the dangers of texting while driving.  We can only hope that as texting becomes a more and more common method of communication, these dangers are better internalized, not only by adolescents but adults as well.  The story of Aaron Deveau is a tragedy for all involved.  It was a terrible accident that took the life of Donald Bowley Jr., seriously injured his girlfriend, and has changed Mr. Deveau’s life forever.

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.

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!

Notorious "Daycare Shooting" Case Goes to Trial in DeKalb County, Georgia

If there was ever a real-life case that was made for Law and Order, this would be it. In November 2010, a bearded man in a hoodie fired several shots at Russell Sneiderman on the lawn of a day-care in Dunwoody, an affluent suburb of Atlanta. Sneiderman had just dropped his two-year-old son off at the day-care facility. Mr. Hemy Neuman has been accused of the murder of Sneiderman. If convicted, he could receive a sentence of life without parole. His highly-publicized trial began this week in DeKalb County, Georgia. There have been more wacky and unbelievable twists in the facts of this case, many believe it has the makings to be the next Lifetime movie. As you might have imagined, the case has flooded news outlets Atlanta and even national news outlets.

As a law student here in Atlanta, I am surrounded by the constant coverage of the trial and thought it would be interesting to blog about its progress. Here is some necessary background information: Neuman is a wealthy, high-ranking manager at GE. In early 2010, he hired a woman named Andrea Sneiderman (the victim's wife). It is alleged that the two began an elicit affair. After romancing Andrea on several occasions, it has been said that Neuman believed he and Andrea were going to get married despite the fact that Andrea was married with children. It got to the point where Neuman believed Andrea's children were his children, and that the children were in danger when around their father, Russell.

This is where the facts get interesting: according to the State, Neuman attempted to murder Sneiderman outside of the Sneiderman home but did not succeed for fear of being spotted by Andrea or their neighbors. On the morning of the shooting, Neuman went to work at 5:36 a.m. and snuck out the back door (where there exists a convenient lack of cameras). The State argues this was an attempt to secure an alibi. He drove to the day-care in a silver minivan, fired several shots, and quickly got back into his car and tried to take advantage of the notorious rush hour traffic in Atlanta so as to blend in with the thousands of motorists on the road at that time. All of this, the State argues, is evidence that Neuman planned out the murder in meticulous detail. The State also claims that Neuman was so callous to the situation, he went back to work that day and even attended the funeral services for the victim.

The defense, however, tells a different story. Neuman has plead not guilty by reason of insanity, claiming he did not know the difference between right and wrong at the time of the shooting. To further bolster this claim, the defense's opening statement claimed Neuman believed an angel who looked like Olivia Newton John ordered him to shoot Sneiderman. That's right, Olivia Newton John told him to shoot the victim.

The second day of trial was today, and Andrea was the State's first witness. Once her testimony is finished, I will update with a summary of her testimony. I must admit, along with the rest of Atlanta, I'm captivated by this trial. I will continue to update you on its progress.

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.

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.

1969 Murder Conviction Reversed By Court of Criminal Appeals

Now this is a wild one. The original robbery and murder occurred at a Memphis liquor store in 1966 and a conviction against Ms. Freshwater was returned in 1969. The robbery and murder were committed by Attorney Glen Nash and his partner in crime Margo Freshwater. After her conviction, Margot Freshwater escaped from prison in 1970 and she was on the run until 2002.  Now, 45 years after the crime, her case has been overturned on a Brady (withholding favorable evidence by the State) violation and sent back to Shelby County for a new trial.

• MARGO FRESHWATER v. STATE OF TENNESSEE

The main issue was whether State prosecutors withheld from Ms. Freshwater's lawyer a statement of a witness, Johnny Box, that Ms. Freshwater's co-defendant, Glen Nash, told him that he, Nash, had been the lone shooter of the victim, which, had it been revealed to her lawyer, would most likely have resulted in a different judgment. The Court of Criminal Appeals thinks so and reversed the  conviction.


The evidence in question is a four page written statement that details what Attorney Nash told to Johnny Box and was in the files of the District Attorney. The relevant part states that he, Nash, was the sole shooter.  The statement provided in part to Freshwater's lawyer was missing that important part, intentionally.


While it is highly unlikely that the events here will repeat themselves, it is significant that it was through a petition for a writ of error coram nobis that Freshwater found relief.  Typically the court is reluctant to hear arguments about evidence from trial and how the parties exchanged it at such a late date.  But here a fundamental fair trial right was touched upon when it was shown that the state had the actual statement in its possession that this statement was at odds with the partial evidence disclosed by the state with the inference that Freshwater was the actual shooter in the murder.


As a point of interest, the lawyer Glen Nash was found to be insane in Mississippi where the couple was arrested and he remains committed there today.

Appeals Court Reverses Homicide Conviction: Case Dismissed

• STATE v. LARRY WARD

In this Memphis case a jury convicted Larry Ward in the negligent homicide of his wife.  The issue at trial was homicide vs. suicide.  The state indicted on first degree murder and the jury returned a verdict on the lesser included charge of negligent homicide.

The proof showed that the victim died as a result of a close contact gunshot wound to the head. However, the evidence presented could not establish that the victim died as a result of a homicide as opposed to suicide. The state--says the court-- simply failed to put forth sufficient evidence that any rational trier of fact could have found the essential elements of criminally negligent homicide beyond a reasonable doubt. The evidence in this case is inconclusive. The court went further to say, that even if the evidence at trial was sufficient to prove homicide, rather than suicide, the evidence was not sufficient to establish the defendant as being the person responsible for the victim’s death. The court concluded that the evidence was insufficient to convict the defendant of criminally negligent homicide.

The Court of Criminal Appeals reversed the judgment of the trial court, vacated the conviction, and dismissed the charge against Larry Ward.