Tennessee Criminal Lawyer Blog

The General Assembly passed a proposal—SJR 127—to amend Article 1 of the Tennessee Constitution. If passed, the amendment could open the door for changes to Tennessee criminal abortion laws. The proposal reads,
“Nothing in this Constitution secures or protects a right to abortion, except in cases involving rape or incest or in cases where the procedure is medically necessary to save the life of the pregnant woman. Nothing in this Constitution requires the funding of an abortion. No person shall perform a partial-birth abortion.”

How might this change existing abortion Tennessee criminal law? By reading the amendment, one might think that it would allow the General Assembly to pass a blanket law banning abortion. Since states are also bound by the Federal Constitution and Supreme Court decisions interpreting the Constitution (particularly Roe v. Wade and Planned Parenthood v. Casey), it is unlikely that the General Assembly would attempt to pass such a bill unless it wanted to launch a full-scale assault on settled federal law. (Given the conservative bent of the Supreme Court, this is not outside the realm of possibility.)

What it might change is the Tennessee Supreme Court decision that struck down a statutory requirement that an abortion must take place in a hospital when it is performed after the first trimester. In coming to this decision, the Supreme Court held that Article 1 of the Tennessee Constitution guaranteed a pregnant woman a right of privacy, which includes the right to have an abortion. Requiring a woman to have her abortion in a hospital, the Court held, violates this right. If the Constitution is changed, however, the reasoning of this case would no longer apply, and law enforcement would be free to enforce the hospital requirement.

On the Internet, as is often the case, there is much misinformation regarding the Amendment. Without publishing the text of the Amendment, Planned Parenthood stated, [i]t is a dangerous, extreme, and deceptive measure [that] makes no exception for rape, incest or health of the mother.” This is absolutely false. When it was initially proposed, the proposal stated that the “people retain the right [to enact legislation under] circumstances of pregnancy regarding rape, incest or health of the mother.” While this could be read as a clandestine effort to open a door to remove the infamous health exception, the revised language shuts this door completely when it states, “except in cases…where the procedure is medically necessary to save the life of the pregnant woman.”

The abortion proposal will be up for a second vote in 2011 when it will have to pass the House by a two-thirds majority. Only then can it move forward to a gubernatorial ballot. While the amendment seems a long way off, the culture war is just heating up. As such, there will be much misleading information on what is and what is not an abortion crime in Tennessee. If you have been charged with such a crime, you will want a criminal defense attorney with the knowledge necessary to help you understand your case. Call the experienced Knoxville criminal defense attorneys skilled in abortion crimes at Baker Associates today so that we can help you mount the best possible defense.

The choice of how to plead to criminal charges in Tennessee can be a difficult and confusing matter. It can also be very stressful given the consequences that flow from entering a plea. The following is a brief description of the various pleas available in Tennessee.

Not Guilty Plea - To plead “not guilty” is a Constitutional right. In fact, where the defendant fails to appear, the court must enter a plea of not guilty. By pleading not guilty, the defendant denies every material allegation of the prosecution’s complaint. A defendant who pleads guilty may rely on defenses, including affirmative defenses that admit certain facts while asserting other facts that, if proven, relieve the defendant from liability.

Guilty Plea - A guilty plea is the defendant’s admission in open court that he has committed the offense for which he has been charged. Once the guilty plea is entered, the court must verify that the plea was voluntary. If it is found that the plea was not voluntary, the trial court judge will reject the plea.

Plea of Nolo Contendere (no contest) - The defendant also has the option to plead no contest but must do so with the consent of the court. While the no contest plea has the same legal effect as a guilty plea, it differs from a not guilty plea in one major respect: The no contest plea cannot be used against the defendant in a criminal or civil action based upon the same facts since the plea is not an admission of guilt.

Best Interest Plea - A defendant sometimes enters this kind of plea when he or she wishes to accept a plea bargain and plead guilty while maintaining that he or she is innocent. This plea has given the courts some trouble because a guilty plea requires a factual finding that the plea was entered into voluntarily. The Supreme Court, however, has found the plea valid where 1) the defendant is represented by competent counsel, and 2) there is a record that strongly evidences guilt. Tennessee courts are not required to accept such a plea.

Conditional Guilty Plea - With the consent of the court, the defendant charged with a misdemeanor may enter a conditional guilty plea. When such is established, the court enters the plea but does not accept it until some condition is met. For example, the guilty plea may be conditioned upon the defendant’s successful completion of probation or community service. In this way, the defendant is still able to be punished without having his or her record tainted with a criminal conviction.

For additional information on pleas for a criminal case or if you’ve been charged with a crime in Tennessee, contact Baker Associates. Our knowledgeable and experienced attorneys can help you make the best decision for your specific case. Call 866-853-2888 today to speak with a skilled Sevierville criminal defense attorney willing to fight for you.

On January 14, 2009, the Tennessee Criminal Court of Appeals had an opportunity to revisit the law on the voluntariness of a guilty plea. In Shockley v. State of Tennessee, a Davidson county grand jury indicted the petitioner/defendant on four counts of rape of a child and nine counts of aggravated sexual battery. Under a plea agreement, the defendant pled guilty to only four counts of aggravated sexual battery in Tennessee. The trial court then imposed an effective sentence of sixteen years in prison.

After sentencing, the defendant petitioned for post-conviction relief claiming that his guilty plea was not knowingly and voluntarily entered because he had taken Zoloft, Xanax, and Ambien prior to the plea hearing. The Court, however, rejected the defendant’s petition because there was no evidence other than the defendant’s testimony that he had taken the prescription drugs. Moreover, the record of the sentencing hearing showed that defendant represented on several occasions that he understood the nature and consequences of his guilty plea.

Post-conviction relief in Tennessee describes the many laws that can help you after your conviction. The Tennessee code states that post-conviction “relief…shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.”

Pursuant to this Tennessee criminal law, a person who pleads guilty must do so voluntarily and with knowledge of the consequences that are involved with such a plea. In reviewing the voluntariness of a guilty plea a court must look at the totality of the circumstances. The circumstances relevant to a guilty plea include:

• the relative intelligence of the defendant;
• the degree of his familiarity with criminal proceedings;
• whether he or she was represented by competent counsel and had the opportunity to confer with counsel about the options available to him;
• the extent of advice from counsel and the court concerning the charges against him or her; and
• the reasons for his or her decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury trial.

Although the court ruled otherwise, it seemed as though the defendant was not fully apprised of the full breadth of the consequences of his plea. At Baker Associates, our skilled Gatlinburg criminal defense attorneys work hard to help you understand the issues involved in your case, including the consequences of a plea. If you have been charged with a crime, or convicted of a crime and seeking post-conviction relief, don’t hesitate to call 866-853-2888 for a complete case evaluation.

Credit card fraud in Tennessee has jumped by 38 percent over the last three years, according to a report released by the Tennessee Bureau of Investigation.

Fraud typically begins with theft of the card or some compromising of data associated with the card account (such as the account number). A common example of the latter is when a store clerk copies sales receipts for later use. The increased use of credit card numbers over the Internet has also made security lapses more common.

In Tennessee, if a person obtains property or services as a result of unlawful possession or fraudulent use of a credit card, he or she will be charged with a felony. Possession of a credit card is a Tennessee white collar offense if a person knowingly possesses the card or uses information from the card without the consent of the owner or issuer.

A person commits fraudulent use when he or she uses the card without the consent of the owner or issuer for the purpose of obtaining property or services. Fraudulent use of a card is punishable as theft, and the punishment varies depending on the value of the property or services unlawfully obtained.

If you have been charged with credit card fraud or unlawful possession of a credit or debit card in Tennessee, you will want a skilled and experienced Knoxville criminal law attorney who has the resources and knowledge to defend your rights. The skilled criminal defense attorneys at Baker Associates will fight for you. For help with your criminal case, call 866-853-2888 today.

Under present law, first degree murder in Tennessee is:
• A premeditated and intentional killing of another;
• A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
• A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.

Senate Bill 1093 expands first degree murder as homicide crimes in Tennessee by including within the actions that constitute first degree murder the killing of another while committing domestic abuse if there was a past pattern of abuse upon the victim or another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life.

Under Tennessee domestic abuse law, domestic abuse victims include:
• Adults or minors who are current or former spouses;
• Adults or minors who live together or who have lived together;
• Adults or minors who are dating or who have dated or who have or had a sexual relationship,
• Adults or minors related by blood or adoption;
• Adults or minors who are related or were formerly related by marriage.

To constitute extreme indifference to human life, the defendant’s conduct must be so lacking in concern for the lives of others that it warrants the same criminal liability as if the crime was done for the purpose of taking life.

If charged with first degree murder, you are facing the most severe punishments available under Tennessee law. Sentences can include life in prison or even the death penalty. This is why you will want a skilled attorney who has had considerable success in defending people who have been accused of this most serious crime. Call the experienced Knoxville assault attorneys today at Baker Associates for a free and comprehensive case evaluation.

With the number of bankruptcy petitions skyrocketing, there is bound to be an increase in the number of individuals charged with bankruptcy crimes in Tennessee. For the most part, statutes pertaining to bankruptcy crimes are found in sections 151 through 157 of Title 18 of the U.S. Code. This blog article outlines some of the key features of the federal bankruptcy crime laws applicable to persons in Tennessee.

Section 152 overlaps the state crime of fraud in insolvency. Under T.C.A. 39-14-117, conduct that generally interferes with the fair administration of the bankruptcy estate is prohibited. Section 152 overlaps the statute, concentrating on the concealment of assets, false oaths, extortion in connection with a bankruptcy petition, and bribery in Tennessee.

Section 153 makes it a crime for a bankruptcy trustee to embezzle assets from the bankruptcy estate. If guilty, the trustee faces a penalty of up to five years and a sizable fine. Furthermore, under section 154, a trustee or officer who purchases any property from the estate is subject to termination and a fine. It is also an offense under this section to deny any interested party a reasonable opportunity to inspect documents.

Section 155 affects parties in interest—whether it is the debtor or a creditor of the debtor—who knowingly and fraudulently agrees with another party in interest to the fixing of a fee or other compensation from the assets of the estate. Violation of this statute is punishable by imprisonment of up to a year and a fine.

Section 156 penalizes a petition preparer if the petition is subsequently dismissed because of a knowing attempt by the preparer to disregard the bankruptcy statutes and rules. Persons subject to this provision do not include the debtor’s attorney or employee of the attorney. If guilty, the accused faces a year of prison and a possible fine.

Finally, section 157 is a newer provision of the bankruptcy crime laws and authorizes a penalty of up to five years and a fine for anyone found guilty of devising a scheme to defraud creditors through the filing of a bankruptcy petition, document or making any other false or fraudulent representation relating to the bankruptcy proceeding.

As you can see, the penalties for bankruptcy crimes can be quite severe. Thus, you will want the skill of an experienced Knoxville criminal defense attorney preparing your defense and fighting for your rights under the law. If charged with a Tennessee bankruptcy crime, call the criminal defense attorneys at Baker Associates today for a comprehensive evaluation.

When clients come into our office at Baker Associates, there is often some confusion about the criminal process and criminal law in Tennessee. This blog entry hopes to clear up some of that confusion.

Criminal prosecution develops in a series of stages, which begins with an arrest and may or may not end with a jury verdict. In fact, the majority of criminal cases terminate when a criminal defendant accepts a plea bargain offered by the state prosecutor. In a plea bargain, the defendant pleads guilty to the charged offenses or to lesser offenses prior to trial in exchange for a more lenient sentence or for dismissal of related charges.

The stages of a criminal case along with a brief (and oversimplified) description are provided below:
• Arrest - This stage begins typically with an arrest by a police officer. After the arrest, the officer then books the suspect and places him or her in custody.

• Bail - If in custody, the suspect is granted bail and may pay the bail amount in exchange for release.

• Arraignment - At this stage, the suspect makes his or her first court appearance. At the arraignment hearing, the judge reads the charges filed against the defendant in the complaint, and the defendant chooses to plead "guilty," "not guilty" or "no contest" to those charges.

• Preliminary hearing or grand jury proceedings - At this stage, the government brings criminal charges by either a “bill of information” or by a grand jury indictment to determine whether there is “probable cause” for the case to proceed.

• Pre-trial motions - Motions hearings may be bought by both the prosecution and the defense to resolve issues related to the admissibility of evidence and testimony prior to trial.

• Trial - At trial, the prosecution presents his or her case first and bears the initial burden of proof. The defense then presents its proof to rebut the prosecution’s case. After closing arguments and the jury instructions, a jury makes the final determination of guilt or innocence.

• Sentencing - If found guilty, the court determines the appropriate punishment.

If you have been charged with a crime, you will want a skilled and experienced Pigeon Forge criminal defense attorney to defend your rights at every stage of the criminal process. Call Baker Associates today for a thorough consultation.

Tennessee State House Representative Joe Town, Jr., recently proposed House Bill 2083, which would criminally penalize anyone who knowingly wears pants below the waistline to show underwear or buttocks. According to KnoxNews.com, similar bills have been proposed in South Carolina and Louisiana.

A first offense yields a Class B misdemeanor, punishable by a fine of 200 dollars and 40 hours of community service. Subsequent offenses go as high as a 1000 dollar fine and 160 hours of community service.

The fiscal summary predicts that the bill will produce over 100,000 dollars. These proceeds are earmarked for new equipment for Tennessee schools.

The Constitutional issues that the new law invokes will likely prevent the “anti-crack” bill from becoming law. The First Amendment, for instance, grants individuals a right to freedom of expression, a concept that just may include fashion. The equal protection clause of the Fourteenth Amendment may also be invoked because the new law may unfairly target minorities—particularly those who live in Shelby county where Representative Towns resides.

The Constitutional concerns of the new bill reveal themselves in a quote by the author of the South Carolina bill, Senator Robert Ford. He stated, “[w]e want Americans to look decent…it doesn’t make sense for anybody to be looking like a thug.”

If you have been charged with a crime in Tennessee, the skilled Knoxville criminal defense attorneys at Baker Associates can help. Call 866-853-2888 for a case evaluation.

The Tennessee Bureau of Investigation Statistics Unit recently released its annual crime report for 2008. The following provides some of the highlights of that report.

Group A offenses dropped 2.9 percent from 2007 with a total of 619,465 crimes. Group A offenses consist of crimes against persons (e.g., murder and assault), property crimes (e.g., burglary and arson), and crimes against society (e.g., drug offenses and prostitution).

Among the Group A offenses, property crimes were in the majority at 61.3 percent. Of these, theft was the most common offense reported (44.4 percent), followed by vandalism (19.3 percent) and burglary (17 percent). Credit card fraud showed the most increase from previous years rising 34.5 percent from 2006. White males committed the majority of all property crimes.

Personal crimes consisted of 27.2 percent of all Group A offenses reported. Of these, simple assault made up a majority (56.4 percent), followed by intimidation (19.4 percent) and aggravated assault (18.8 percent). Murder rounded out the bottom at .02 percent of all Group A offenses reported. White males also committed the majority of these crimes.

Crimes against society (sometimes called “victimless” crimes) consisted of 11.2 percent of all Group A offenses reported. Of these, drug and narcotic violations in Tennessee made up the majority (59.5 percent), followed by prostitution (27.6 percent), and weapons violations (8.6 percent). White males committed the majority of these crimes.

Some surprising statistics in the report:
• Juveniles comprised 10.3 percent of all arrests.
• Crime rate per 100 thousand people was 10,066 for 2008.
• Arrest rate per 100 thousand people was 5,907 for 2008.

If you have been charged for violating any of the crimes referred to above or any other crime, it may be in your best interest to contact a skilled criminal defense lawyer in Pigeon Forge. At Baker Associates, our Tennessee criminal defense attorneys will aggressively defend your rights and ensure that you understand the complexities of your case. Call us today for a comprehensive evaluation.

Damage to personal property is often thought of as a cause of action in civil litigation. If someone destroys property, they should have to pay for it. But what about the criminal side of it? Can criminal sanctions be brought against someone who destroys property? Under certain conditions: yes. TCA § 39-14-408 lays out the standards for criminal vandalism.

Under TCA § 39-14-408, a person may be charged with criminal vandalism if they knowingly or intentionally damage the personal or real property of another. “Another” can mean a private individual, the state, the United States, or a city or town. The person against whom the vandalism occurs in not important; the important factor in vandalism cases is that this destruction takes place when the accused knows that they do not have the owner’s effective consent to damage or destroy the property. Therefore, negligent or reckless damage to the property of another will likely not rise to the level of vandalism. The statute is clear that the accused must either knowingly or intentionally caused the damage without the owner’s consent.

The damage caused may include destroying, polluting, or contaminating property, or tampering with the property in such a way as to cause pecuniary loss or substantial inconvenience to the owner or a third party.

Often times, vandalism charges may be compounded with a number of other charges, including trespass and burglary. The trespass and burglary charges in Tennessee will relate to the entry on the property, while the vandalism charge will relate to the actual damage caused.

If convicted of vandalism, the punishment is the same as that for theft (TCA § 39-14-105). If the value of the damage is less than $500, it will be a Class A misdemeanor; $500-$1,000 is a Class E felony; $1,000-$10,000 is a Class D felony; $10,000-$60,000 is a Class C felony; and more than $60,000 is a class B felony.

If you are facing any of the charges mentioned above, then it may be in your best interest to contact a skilled Pigeon Forge criminal defense attorney. Call Baker Associates today for a free evaluation.

Tennessee statutes give law enforcement officers a great deal of leeway in their ability to exercise force in the apprehension of criminal suspects. However, that leeway is not unlimited, and an officer’s failure to abide by the prescribed standards may affect the rights of a criminal suspect.

Law enforcement officers, after identifying themselves, their authority, and their purpose, may break open any door or window of a house if they have been refused admittance. However, this option is only available to an officer if it is in an effort to make an arrest, and may be done so with or without a warrant. If an officer resorts to these means in an effort to obtain evidence, the officer must first have a valid search warrant.

Law enforcement officers, after identifying themselves as such, may use or threaten force that is reasonably necessary to accomplish the arrest of a criminal suspect who has resisted or fled from arrest. However, deadly force, which is the use of the officer’s gun, may only be used if all other reasonable methods of apprehension have failed, and the officer has attempted to alert the suspect that deadly force may be used unless the suspect immediately begins cooperation.

Still, deadly force may only be used if one of two other conditions are met: (1) the officer has probable cause to believe the individual has committed a felony involving the infliction or threatened infliction of bodily injury, or (2) the officer has probable cause to believe that the individual poses a threat of serious bodily injury to the officer or another person.

As you can see, the use of deadly force is statutorily limited to a very specific set of circumstances, and law enforcement officer are given specific training in the implementation of the use of force in the apprehension of criminal suspects. If you have any questions regarding your encounter with an officer relating to deadly force during your arrest, the experienced criminal defense attorneys in Tennessee at Baker and Associates can help. Call us today at 866-853-2888.

Fines are a form of criminal punishment, just the same as imprisonment. Sometimes fines are the only form of punishment levied against a criminal defendant; other times fines are assessed to accompany a term of incarceration. That being the case, the payment of court-ordered fines is essential to clearing one’s record and avoiding further punishment. The traditional fines that most people are aware of are those for Tennessee traffic violations; however, fines can be assessed for almost any crime, both misdemeanors and felonies.

So what happens if you fail to pay your fines? The answer is found in TCA § 40-24-104.

If you fail to pay your fines, the court has several options at its disposal for you to review with your criminal defense attorney. First, if the failure to pay the fine was caused by an inability to pay, the court may, in its discretion, reduce the amount of the fine to a level that you are able to pay. Second, the court may also require that you be imprisoned until all or a designated portion of the fine is paid. This period of time is generally limited to the specified limits of imprisonment for a Class C misdemeanor, meaning that incarceration will be limited to 30 days.

Sometimes courts will permit an individual to make installment payments on their fines in order to ease the burden that a lump sum payment would impose. Default on these payments is generally treated the same as failing to pay the entire amount, and will be punished within the guidelines set forth above. There is one exception to this, however. When the installment plan is established to aid a defendant in the payment of fine for a traffic violation in Knoxville, default on the payments will result in the court revoking the defendant’s drivers license until the entire amount due is paid in full.

In 1980, Gary Bradford Cone was convicted of brutally beating an elderly couple to death in their Memphis home. At trial, Cone claimed that he suffered from post-traumatic stress disorder caused by his service in Vietnam, and that this post-traumatic stress left him incapable of having the requisite mental state to commit first-degree murder in Tennessee. He also claimed that he was a habitual drug user. Prosecutors aggressively challenged Cone’s claims, often mocking him while doing so, and a jury convicted him of first-degree murder. He was sentenced to death.

So what is the problem? It turns out that at the time of the trial, prosecutors were in possession of evidence that could have substantiated Cone’s claims of mental instability. This evidence was withheld from Cone’s attorney, the judge, and the jury. It is this simple act of withholding that has resulted in the United States Supreme Court ordering Cone be granted a new hearing so that this “new” evidence may be considered. Under criminal evidence procedure, prosecutors are required to supply potentially exculpatory evidence to the defense. Failing to do so is a denial of due process and can result in the denial of a fair trial – a Constitutional guarantee.

Since Cone’s trial 1980, lower courts have consistently refused to hear the new evidence, and the United States Supreme Court finally decided to hear his case in December 2008. The Supreme Court did not overturn cone’s conviction, as the justices agreed that the evidence bore no weight on whether Cone actually committed the murders; however, the evidence is vitally important to the issue of Cone’s intent to commit the murders, and could result in his conviction being reduced to second-degree murder. The effect could be a reduction in his sentence from death to life imprisonment. The Supreme Court demanded that Cone be given a new hearing to allow this evidence to finally be considered, nearly 30 years after his initial trial.

Cone’s nearly 30-year battle has resulted in an important victory for defendants’ rights. As evidenced by Cone’s trial, prosecutors carry extraordinary powers and, if left unchecked, can abuse those powers to the detriment of the rights of criminal defendants. Nonetheless, aggressiveness and persistence of do pay off in the criminal justice system, even if it takes 30 years.

If you have been charged with a crime in Tennessee, the skilled Pigeon Forge criminal defense attorneys at Baker Associates can help. Call 866-853-2888 for a case evaluation.

With the recent national attention being paid to anabolic steroid use, it is important to know specifically what the Tennessee drug laws governing steroid distribution are. In Tennessee, these laws are found in TCA § 39-17-430, and have been on the books since 1989, long before the modern scandals erupted.

Tennessee’s anabolic steroid law is divided into two parts. The first part governs “practitioners,” while the other part governs lawpersons. Both parts are concerned with distribution.

Under part one, it is illegal for a practitioner (a physician, dentist, or veterinarian) to prescribe, order, distribute, supply, or sell an anabolic steroid. This illegality is in regards to two activities: (1) where the purpose is to enhance performance in exercise, sports, or games without some sort of medical necessity; and (2) where the hormonal manipulations is intended to increase muscle mass, strength, or weight without necessity. Therefore, Tennessee’s anabolic steroid distribution law covers the common reasons for which anabolic steroids are often deemed illegally distributed. Anabolic steroids can have valuable medical benefits, and the law allows distribution where there is a medical necessity.

Under part two, it is illegal for any person who is not a practitioner or lawful manufacturer of anabolic steroids to knowingly or intentionally manufacture or deliver anabolic steroids, or possess anabolic steroids with an intent to manufacture or deliver. This section covers persons, or middlemen, who may be used to transport anabolic steroids from the prescribing practitioner to the end user. It is important to note the requisite mental state for this type of drug offense in Knoxville, either knowingly or intentionally, which means that a person may not be charged with violating this section of the statute if they are unaware of the fact that they are manufacturing or delivering the steroids.

Violation of this section of the code is punished the same as violating the provisions regarding a Schedule III controlled substance. This would result in a Class D felony, with the possibility of up to $50,000 in additional fines.

At Baker Associates, our experienced Tennessee criminal defense attorneys will help defend your rights if you’ve been accused of a crime. Call us today for a free consultation.