TN Supreme Court Holds That Raw IQ Scores Are Not Alone The Limiting Factor In Death Penalty Cases For Intellectual Disability

• MICHAEL ANGELO COLEMAN v. STATE OF TENNESSEE

The Tennessee Supreme Court finds in the case of death penalty inmate Coleman that Tenn.Code Ann. §39-13-203(a)(1) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated.


The underlying facts to Coleman's case are that the victim, Leon Watson, left his home on the morning of May 2, 1979 to go to a nearby grocery store. On the way, he was confronted by Michael Coleman and another.  Coleman robbed and killed Watson, Coleman fired the fatal shot. Coleman also looked through Watson’s wallet and stole a pistol and citizens’ band radio from Watson’s car. A short time later, officers arrested Coleman on another charge. After being advised of his Miranda rights, Coleman confessed that he had shot and robbed Watson.  After a jury trial, Coleman was convicted of robbery and murder and given the death penalty--in part due to his prior violent history including convitions for felonies.  Mitigation evidence on the issue of intellectual disability was limited to raw IQ test scores.

On this appeal from death row, considering the issue of intellectual disability as a possible mitigating factor, the Tennessee Supreme Court observed: "our review of all the cases involving the application of Tenn. Code Ann. § 39-13-203 reflect that the parties and the courts have not been limiting their consideration of whether a criminal defendant has a functional intelligence quotient of seventy (70) or below to the defendant’s raw I.Q. test scores. Even though the state is asserting here that raw I.Q. test scores are the sine qua non for determinations under Tenn. Code Ann. § 39-13-203(a)(1), it has not been hesitant in other cases to present evidence challenging the accuracy of I.Q. test scores that are not favorable to its position."


Accordingly, Coleman's case is remanded to the trial court where Coleman and the state are free to present additional evidence regarding whether Coleman meets the definition of intellectual disability under Tenn. Code Ann. § 39-13-203(a).

District Court Abused Its Discretion Regarding Non Frivolous Arguments For Leniency, says Sixth Circuit

• US v. ROBERT M. PIZZINO,

This case is from the Eastern District of Michigan.  In 2009, Robert Michael Pizzino pleaded guilty to distributing child pornography and received a 180-month sentence. He appealed his sentence in part based upon the district court's not fully addressing his sentencing memorandum and arguments at sentencing based upon the memorandum.

The Sixth Circuit in Pizzino held that the district court abused its discretion in failing to consider Pizzino’s non frivolous arguments for leniency, the court vacated his sentence and remanded for a resentencing that addresses them.

In his presentencing memorandum, Pizzino's lawyer presented several arguments for a lower sentence, including his limited criminal history, his low risk of recidivism, and the alternate sentences available. Pizzino's lawyer supplemented the memo with a statement from his therapist, as well as the

therapist’s notes from Pizzino’s sessions, all of which highlighted his progress and low risk of recidivism. Pizzino’s lawyer further emphasized these factors at the sentencing hearing.

The Sixth Circuit found that a district court’s acknowledgement that it received and understood a defendant’s sentencing memorandum does not fulfill its duty to respond to the defendant’s non frivolous arguments, as such a conclusive statement leaves the Sixth Circuit unsure as to whether the district court adequately considered and rejected Pizzino's arguments regarding proper application of the § 3553(a) factors or whether it misconstrued, ignored,or forgot them.

Tennessee Sex Offender Act Applies to Other State Convictions Prior to Act's Passage

• JOHN DOE, alias a Citizen and resident of Hamilton County, Tennessee, v. MARK GWYN, TBI

The Tennessee Court of Appeals held that the TN Sex Offender Act applies to people living in TN convicted of crimes from other jurisdictions prior to the Act's existence.  At issue here is the civil declaratory action taken by one such affected individual.  A John Doe plaintiff filed suit seeking to show that the act was unconstitutional.  Of particular force was the argument that of the crimes that Mr. Doe pleaded guilty to, he was not required to register as a sex offender in his home state at the time, nor would he have been required to register in TN then, as the law then did not require registration.  The law changed in 2004 and now Tennessee law requires registration not only for current sex offenders but also for people from other states now living in TN and from earlier convictions as listed in the act.


The Court of Appeals affirmed the ruling of Chancellor Frank Brown, Hamilton County on essentially five major points.  They are as follows: 1. Courts have overwhelmingly viewed sexual offender registry statutes as nonpunitive. 2. Mr. Doe has failed to articulate how the registration requirements would uniquely impose disability or restraint on him, as he must to sustain an “as applied” challenge. 3. The court agrees that the Act was enacted to protect the welfare of the people of Tennessee and not to further punish the offenders who are required to register. 4.  The court concludes that there is a clear and rational non-punitive interest in the State of Tennessee’s desire to inform the public of Mr.Doe’s history of sexual offense. 5.  Here, Mr. Doe has not stated any reasons why requiring him to register would be more excessive than for any of the other thousands of sexual offenders registered in Tennessee.

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.

Sixth Circuit Finds No Error In Knoxville Accessory to Carjacking Case

• US. v. ERIC DEWAYNE BOYD

In this Sixth Circuit case from the Eastern District of Tennessee,  Eric Boyd appeals his jury conviction of being an accessory after the fact to a carjacking and misprision of a carjacking. (Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to a judge or other authority.) 


This case relates to Boyd's part in the help he rendered to Lamaricus Davidson. Davidson was one of the principal defendants convicted in the brutal rape and murder in Knoxville of Christopher Newsom and his girlfriend, Channon Christian. Boyd was not charged with actually committing the crime of carjacking which resulted in the death and serious bodily injury to another person.  Instead, he was charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime.


Statements made between Davidson and Boyd were introduced at Boyd's trial and are among the things he chiefly complains about on appeal. Prior to his trial, Boyd moved to exclude the portions of his videotaped interview in which he discussed the things Davidson told him about the carjacking, rapes, and murders.  Boyd argued that Davidson’s statements were inadmissible hearsay and violated the Confrontation Clause. Boyd’s recounting of Davidson’s statements presents a double hearsay issue, because it constitutes a statement within a statement.  There is no dispute that Boyd’s statements to police were admissible under the admission by a party-opponent exception. The issue is Davidson's statements.


The Sixth Circuit held that Davidson’s statements to Boyd were properly admitted as non-hearsay offered to prove Boyd’s knowledge of the carjacking and murders.  Both charges against Boyd required the Government to prove that he had knowledge of a crime.  And the Court found that as his state of mind is an element of the offense, this evidence is relevant.

Boyd also argues that the admission of Davidson’s statements violated the Sixth Amendment Confrontation Clause because he had no opportunity to confront the witness Davidson. Here, the Court held that the statements are  non-testimonial.  Davidson made the statements to a companion, and a reasonable person in Davidson’s position would not have anticipated the use of the statements in a criminal proceeding like a trial. Lastly, the statements do not trigger the Confrontation Clause because they were offered as non-hearsay.  Sixth Circuit affirms his convictions of 180 months accessory after the fact to a carjacking and 36 months for misprision of a carjacking .

Direct Observation of Drug Test Not a Violation of Fourteenth Amendment, says Sixth Circuit

• NORRIS v. PREMIER INTEGRITY SOLUTIONS,

Norris asserts that conditions of his pretrial release amount to an unreasonable search in violation of the Fourth Amendment when a drug testing company, Premier, required him to provide a urine sample while directly facing a Premier employee. Premier used this “direct observation” method for monitoring the provision of the sample because of the ease with which persons giving a sample could otherwise evade the requirement of supplying a valid one. The district court held that Premier’s method of obtaining the urine sample did not constitute an unreasonable search inviolation of the Fourth Amendment. The Sixth Circuit Affirms.

The dissent notes, "the possibility of cheating should not justify every precaution that the state deems efficacious. By reaching the opposite conclusion, the majority unravels Fourth Amendment protections for pretrial releasees."

Justice Thomas Opinion is a Rebuke to the Ninth Circuit and District Court in this Death Penalty Case

• CULLEN, ACTING WARDEN v. PINHOLSTER

This Justice Thomas opinion is a rebuke to the Ninth Circuit and District Court grant of post conviction relief to a California Death Penalty inmate Scott Pinholster. The Supreme Court essentially found that the California state court process was not flawed enough to be in violation of federal law.


The short facts: In 1982 Scott Pinholster and two others broke into a house at night and brutally beat and stabbed to death two men who interrupted the burglary.  A jury convicted Pinholster of first-degree mur­der, and he was sentenced to death. After the California Supreme Court twice denied Pinholster habeas relief,  a Federal District  Court held an evidentiary hearing and granted Pinholster ha­beas relief  under 28 U. S. C. §2254. The  District Court concluded that Pinholster’s trial counsel had been consti­tutionally ineffective at the penalty phase of trial. The Court of  Appeals for the Ninth Circuit af­firmed.  Consid­ering the new evidence adduced in the District  Court hearing, the Court of Appeals held that  the California Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.”  §2254(d)(1). The Supreme Court granted certiorari and reversed.


Lack of mitigation evidence presented is the substantial claim behind these ineffective assistance of counsel appeals.  At the penalty phase, counsel did not call a psychiatrist, though they had consulted Dr. John Stalberg at least six  weeks earlier.  Dr. Stalberg noted Pinholster’s “psychopathic personality traits,” diagnosed him with antisocial personality disorder, and concluded that he “was not under the influence of extreme mental or emotional disturbance” at the time of the murders. 


This is a lengthy opinion with several justices sharing in parts but not all of the decision but the majority says that: "Even if the Court  of Appeals might have reached a different conclusion as an initial matter, it was  not an unreasonable application of our precedent for the California Supreme Court to con­clude that Pinholster did not establish prejudice." The Court said that reviewing federal courts are limited to the record of what was raised in and by the state courts under 28 U. S. C. §2254. The Ninth Circuit is Reversed.

Anyone Arrested For A Felony Must Give DNA Sample, Propsed TN Bill

• SENATE BILL 257

This Bill from the Tennessee Senate requires all persons arrested on or after January 1, 2012, for the commission of any felony to have a biological specimen taken for the purpose of DNA analysis. Requires the bureau to destroy the sample and all records of the sample if the charge for which the sample was taken is dismissed or the defendant is acquitted at trial. (S: Ramsey R.; H: Lundberg)


In short, all felony arrests to offer biological specimen for DNA analysis and that is a condition of bond and release: "After the person is arrested, but prior to the person's release from custody on bail or otherwise, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing." How will that impact the time it takes to make bond?

Illegal Vote Gets TN Man 15 Days in Jail, Sentence Upheld by CCA

• STATE v. GREGORY D. ROBERTS

Gregory D. Roberts, was convicted by a Fayette County, TN jury of illegal voting, a felony, for having intentionally voted in a November 2008 election knowing that he was ineligible to vote due to his felony convictions. He was sentenced by the trial court to four years in the Department of Correction, with the sentence suspended to fifteen days in the county jail with the remainder of the time on supervised probation.


The State’s main witness was, the Deputy Administrator of the Election Commission, who identified the following items:a copy of the defendant’s signed voter registration card, dated May 21, 2004; a page from the “voter signature list” from the November 2004 general election, which contained the defendant’s signature and preprinted address and social security number; an application to vote from the November 2008 general election, which contained the defendant’s hand-printed name, address, and signature; and a page from the voter signature list from the November 2008 general election, which contained the defendant’s signature and preprinted address and social security number.


The defendant chose alibi and lost.  Roberts will serve 15 days active jail time and be on supervised probation for 4 years for his illegal vote. His sentence was upheld on appeal in an opinion published March 30, 2011.

No Error Found In Denying Defendant's Request To Show Scar To Jury At Close Range, CCA Says.

• STATE v. NAPOLEON STEPHAN MEREDIT

In this appeal to the CCA Napolean Meredit asks whether the trial court erred in failing to allow the appellant to be viewed from a close distance by the jury and in doing so whether that error forced him to relinquish his Fifth Amendment right not to testify. The Court found no error on appeal.


This was a robbery trial and identity was an issue.  At trial, defense counsel asked that Meredit be allowed to stand “a foot or two” in front of the jury so they could see that he had a distinctive scar on his forehead which was never mentioned by the victims, calling their identification of Meredit as the perpetrator into question. After the trial court denied the request, counselasked that the jury be allowed to come to the front table to see Meredit. When that request was also denied, counsel asked that the Meredit’s face be displayed on a projection screen for the jury. The court refused, stating that the court did not possess the necessary equipment. Finally, counsel asked that the photographs he took of Meredit the previous afternoon be admitted but stated that he might have to testify in order to get the photographs admitted as an exhibit. The court advised that Meredit could put on the desired proof in other ways, such as by standing “in the well”; by having a witness, such as a friend or family member, testify regarding the scar; or by having Meredit testify about his scar. Meredit ultimately chose to testify. On appeal, Meredit argues that the trial court erred by refusing to allow him to get close to the jury, thereby infringing upon his right to present a defense, and that the error forced him to relinquish his right not to testify, violating his Fifth Amendment rights.


In upholding the trial Court's decision, the court followed existing precedent:  “[t]he determination to allow the display of body parts and physical traits to the jury is within the sound discretion of the trial court.” State v. David Lee Richards, No. 03C01-9207-CR-230, 1993 WL 80536, at *3 (Tenn. Crim.
App. at Knoxville, Mar. 23, 1993). 


No Fifth Amendment protections are implicated here where Meredit felt compelled to testify by a previous court ruling. His choice was still free and voluntary.