Tennessee Criminal Lawyer Blog

The trials of the defendants accused of killing college students Channon Christian and Christopher Newsom in Knoxville present the opportunity to examine a myriad of legal subjects and issues. Yesterday, October 28, 2009, marked the beginning of the sentencing hearing of defendant Lemaricus Davidson, who was found guilty on thirty-eight different counts including first degree murder of both Newsom and Christian. A sentencing hearing in a capital murder case is a necessary prerequisite to the jury’s decision between life in prison with the possibility of parole, life in prison without the possibility of parole, and the death penalty. Since this is a decision of paramount importance, Tennessee law basically allows the jury to hear all of the relevant information both sides want to present pertaining to appropriate punishment that does not otherwise prejudice either the prosecution or the defense. One important source of such information is the victim impact statement.

Victim impact statements are mostly known for being emotional and gut-wrenching in capital cases, because they almost always consist of someone grieving the loss of a loved one, but they also play material role in the proceedings beyond that of just informing the jury. Tennessee law defines a “victim” for purposes of giving such a statement as not only the person who suffers direct harm during the offense but also that person’s immediate family if the person harmed was a minor or homicide victim.

It is important to note, however, that the court is not merely allowing these statements to come into court because it feels sorry for the victim or the victims’ families (which would be completely understandable). Rather, the sentencing judge is compelled by T.C.A. section 40-38-202 to “solicit and consider” victim impact statements prior to sentencing an offender who has been found guilty of causing physical, emotional, or financial harm to a victim. In fact, T.C.A. section 40-38-204 requires that the department of correction notify the victims or their representatives that they have such a right where the defendant is convicted of a felony that involves one of the three types of aforementioned harm. Once a victim impact statement has been given, it becomes a part of the presentence report to be considered in sentencing and must also be considered as evidence in deciding whether mitigating or enhancement factors should apply to the defendant’s sentence.

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The internet has become a phenomenally effective medium for advertising products and services for many businesses around the globe. Facilitating this effectiveness are websites like EBay and Craigslist which allow their users to advertise or attempt to sell their products at an extremely low cost relative to advertising or selling via other methods while still reaching millions of potential customers. Thus, if you are trying to sell clothing, you will want to find an e-commerce site such as these and attempt to sell your product. If you are trying to sell your body, however, it is probably best not to advertise your services via the World Wide Web.

Authorities say a woman who lives in a Philadelphia suburb did something of the sort, advertising on Craigslist in an effort to trade sexual services for World Series tickets. Her ad apparently stated that she was a Phillies fan, a buxom blonde, and desperately in need of two World Series tickets. The ad also indicated that the price was negotiable and hinted at creative solutions where the exchanging parties could “help each other.”An undercover police officer contacted the woman after seeing the article and alleges that she did indeed offer to perform various sexual acts in exchange for the tickets. She was consequently charged with prostitution and other related offenses.

Prostitution is defined in the Tennessee Code as “engaging in, or offering to engage in, sexual activity as a business or being an inmate in a house of prostitution or loitering in a public place for the purpose of being hired to engage in sexual activity.” Thus, whether or not the lady would have been guilty of prostitution as a sex crime in Tennessee would turn on whether or not her offering sexual favors for sporting events tickets would be considered “a business” in Tennessee.

Continue reading "Woman Tries Her Hand at Harlotry to Obtain World Series Tickets" »

For many Tennesseans, this time of year means football, barbecuing, and just generally taking advantage of the pleasant fall weather. Many outdoor activities common to the fall season involve the use of fire such as grilling, bonfires, and campfires. Although these activities are completely harmless for the most part when conducted in a responsible manner, failure to exercise due caution when starting or maintaining a fire can lead to criminal charges in Tennessee, even if the spreading of the fire was completely accidental.

T.C.A. section 39-14-304 provides that anyone who:

1. recklessly starts a fire on the land, building, structure or personal property of another; or


2. recklessly allows a fire built on their own property to escape and burn the property of another;or


3. recklessly starts a fire in violation of a burning ban as provided in T.C.A. section 39-14-306(b) is guilty of the misdemeanor of Reckless Burning.

T.C.A. section 39-14-306(b) prohibits the starting of an open-air fire in violation of a ban on such fires issued by the Commissioner of Agriculture pursuant to extreme fire hazard conditions in some area or all of the state. Violation of either of these sections is a Class A misdemeanor, punishable by eleven months and twenty-nine days in jail and a fine not to exceed $2,500.

Continue reading "Bonfires, Campfires, Can Lead to Criminal Charges" »

There comes a time in every driver’s life when the light turns yellow at the worst possible moment and the decision has to be made: keep going or slam on the brakes. The root of the problem in this situation is that it is hard to calculate in a split-second whether or not the failure to stop will constitute running a red light and lead to a possible citation. Having to make this decision is frustrating and usually boils down to whether or not the driver thinks a policeman may be nearby. The Tennessee Court of Criminal Appeals recently heard a case that may shed some light on this vehicular vexation.

In a case styled State v. Mowery, the Court of Criminal Appeals was faced with the question of whether or not the defendant was guilty of failing to obey a traffic signal under Tenn. Code Ann. Section 55-8-110(a)(1) where he had entered the intersection to turn left when the light was green, properly yielded to oncoming traffic, and then turned left when the way was clear although the light facing him had already turned red. The court held that the turn was legal unless there was some sort of signage at the intersection that prohibited the turn, which in this case, there was not.

Continue reading "Court of Criminal Appeals Clarifies Rules of the Road" »

The 2007 murders of two college students in Knoxville, known to some as the Chipman Street Murders, have captured the attention of many Tennesseans. In addition, they have produced some of the most high-profile criminal trials in the East Tennessee area in quite some time. One of the most recent developments in this series of trials is that the judge has ruled that Lemaricus Davidson, one of the defendants accused of the murders, has until Monday to decide whether or not he wants to testify in his own defense. While Davidson seems to want to do so, it may be problematic for him because his taking the stand will allow the prosecution to question him about a Tennessee aggravated robbery charge that was levied against him in 2001. Ultimately, the decision is up to Davidson, as the United States Supreme Court has repeatedly held that a defendant’s right to testify is guaranteed by the United States Constitution.

The Sixth Amendment guarantees a defendant’s right to testify by giving the defendant the right to compulsory process to obtain witnesses in the defendant’s favor. Clearly this would give the defendant the right to call witnesses to the stand, and the defendant can be such a witness. Additionally, the Fourteenth Amendment’s guarantee of due process of law has been found to give the defendant the right to testify on his own behalf, as this right is an essential part of the adversarial system. The Fourteenth Amendment’s due process clause has been further construed to apply these rights to the states, so that the right to testify is guaranteed in both state and federal court.

Continue reading "Defendant in Chipman Street Murders Mulls Decision to Testify" »

People frequently classify themselves as “animal lovers,” but a man from Maury County, Tennessee was recently arrested for taking that concept a little too far. According to police, the man was arrested after investigators learned he was having sex with horses on a farm owned by another person, who was also arrested and charged with animal cruelty. Authorities believe the man is involved in bestiality pornography and could have been having sex with the animals in order to obtain photos of the act. This is not the first time the man has been charged in connection with such activity, as he was arrested in 2005 for filming another man (who actually died from internal injuries related to the incident) having sex with a horse.

Sex with animals in Tennessee is criminalized under Tenn. Code Ann. Section 39-14-214(a) which states that a person is committing a sex offense in Tennessee when he or she:

1. “Engages in any sexual activity with an animal;


2. Causes, aids, or abets another person to engage in any sexual activity with an animal;


3. Permits any sexual activity with an animal to be conducted on any premises under the person's charge or control;


4. Engages in, organizes, promotes, conducts, advertises, aids, abets, participates in as an observer, or performs any service in the furtherance of an act involving any sexual activity with an animal for a commercial or recreational purpose; or


5. Photographs or films, for purposes of sexual gratification, a person engaged in a sexual activity with an animal.”

Violation of this subsection is a Class E Felony, punishable by up to six years in prison and a fine not to exceed $3,000. In addition, the statute grants the court the power to order the offender to participate in counseling at the offender’s expense and the power to order the offender to reimburse any animal shelter or humane society for the costs incurred in caring for animals taken to those organizations as a result of the offender’s conduct. The court may also prevent the offender from harboring any animals or residing in a household where animals are present. Having sex with animals is not only unsafe from a medical standpoint, it is forbidden by Tennessee law. Such conduct should be avoided, as the consequences are severe.

A Tennessee man recently learned the hard way that you cannot evade authorities by hiding in a tree. According to WBIR.com, the man had entered a convenience store and stuffed several beers in his clothes before walking out. When the man was confronted in the parking lot by an employee, he pulled out what appeared to be a gun and escaped. Upon searching the area in response to an armed robbery call, the police found their suspect camouflaged among the branches of a nearby tree.

Near the man, they also found beer and a BB gun, leading to the logical conclusion that this was indeed the man who had robbed the convenience store. When confronted with this evidence, the fact that he was hiding in a tree, and the fact that two witnesses placed him at the scene, the man gave the police a series of fake aliases in order to attempt to avoid prosecution. Police were able to see through the ruse, however, and have identified the suspect’s real name. His attempt at assuming a fake identity resulted in his being charged with criminal impersonation in Knoxville.

Continue reading "Suspect Trees Himself, Gives Fake Identification Info" »

Many amateur magicians like to perform a trick where they stick a playing card to their forehead and then wow the audience by guessing what it is without seeing it. A Pennsylvania man recently tried a similar trick using a bag of marijuana, but unfortunately for him the spectator happened to be a law enforcement official who knew exactly what was in the bag and was not at all impressed. It is unclear if this was a crime of stupidity or if the man may have just been trying his hand at reinventing the American lexicon by giving new meaning to the term “pothead.” Most people use this phrase as a euphemism implying that the object of their labeling uses marijuana or uses marijuana in excess, and most probably never contemplate applying the term literally, but that may change now that the man was recently arrested by Pennsylvania law enforcement officials for walking around a convenience store with a bag of marijuana stuck to his forehead. Apparently an officer happened to notice the man looking into his baseball cap inside the convenience store, and when the man looked up from his cap the officer noticed that he had somehow managed to attach the bag of marijuana to his forehead. More than likely, the man had hidden the baggie in the sweatband inside his cap and the baggie had become stuck to his head while he was wearing the cap around. He has been charged with drug possession.

Thousands of people in the United States are charged with some form of simple possession each year, and it is one of the most common crimes committed on a daily basis. Unless you stick a baggie of marijuana to your head and parade around convenience stores, you are unlikely to attract a whole lot of attention when charged with the crime. Simple possession (which also includes casual exchange) is among the least serious drug offenses in Tennessee. Assuming you do not possess enough of a controlled substance to garner a felony or trafficking charge, possession of marijuana in Tennessee is a Class A Misdemeanor, punishable by up to eleven months and twenty-nine days in jail and a fine not to exceed $2,500.00. However, it is also worth noting that a simple possession charge can be a Class E felony charge if the offender has two prior simple possession convictions. A Class felony is punishable by up to six years in prison and a fine not to exceed $3,000. Thus, it is important to remember that even though Tennessee simple possession charges are not serious offenses relatively speaking, it can still carry serious consequences such as incarceration, stiff fines, and possible public humiliation if you happen to walk around with the controlled substance dangling from your forehead.

Source: http://news.aol.com/article/police-say-cesar-lopez-busted-with/719655

The right of a person to be free from unreasonable searches and seizures of their home, business, property, or person is one that courts historically have been reluctant to infringe upon. Both the Fourth Amendment to the United States Constitution and Article One, Section Seven of the Constitution of the State of Tennessee guarantee citizens that their privacy will not be invaded in an unreasonable manner, meaning that law enforcement officials wishing to search a citizen’s person or property have historically been forced to obtain a search warrant in order to do so. After a recent Tennessee Supreme Court ruling, that may no longer be the case in certain circumstances.

The Tennessee Supreme Court handed down a ruling in a case styled State v. Turner on October 15th that could potentially alter the constitutional landscape in Tennessee forever. In the case at issue, the defendant was convicted of drug charges and endangerment in Kentucky in 2002. She was paroled in 2005 and moved to Tennessee. In April of 2007, an officer who knew the defendant pulled her over under the pretext of a traffic stop because he suspected she was selling drugs. Upon, pulling the defendant over, the officer found that she was not in possession of drugs, but had $975 in cash. Finding the cash fueled the officer’s suspicion that the defendant was selling drugs, so he searched her home without a warrant (because it is highly unlikely he would have been able to demonstrate probable cause to obtain a warrant) and found a loaded handgun. The defendant was thus charged with being a felon in possession of a handgun. At trial, the lower court judge said the search of her home was unlawful, meaning the evidence seized pursuant to the search would be suppressed, and the Court of Criminal Appeals agreed. The Tennessee Supreme Court took a different view, however, and overturned the ruling.

The Tennessee Supreme Court held that people who are on probation in Tennessee or parole, and are thus under judicial supervision anyway, should not expect to have privacy rights equal to those citizens who have not already been found guilty of criminal activity. The Court noted that this did not, however, mean that those citizens should be entitled to arbitrary or harassing searches. This is a departure from the standard prior to this case, however, as neither Constitutional provision referenced above protecting the rights of citizens to be free from unreasonable searches and seizures contains a similar limitation.

Continue reading "Tennessee Supreme Court Limits Privacy Rights for Those on Probation, Parole" »

It seemed like the entire United States was paying attention to the happenings in Fort Collins, Colorado last week when a family reported that their son had apparently taken to the skies inside a giant helium balloon. When the balloon returned to earth minus the child, fears began to emerge that the story might end tragically. After several anxious hours, however, it was eventually discovered that the boy was safe and had been hiding in the garage the whole time. Thus, it seemed like the family could expect a happy ending after all. However, recent comments by the sheriff involved in the case give the indication that the story is just beginning.

After the child had made some questionable comments in interviews following the incident, including commenting during one interview that his father may have set up the stunt “for a show,” authorities have began an investigation into the family’s motive for reporting that their son had taken off in the balloon. The sheriff seems certain that the whole incident was a hoax, ruefully explaining that the only charge that may arise from the incident is filing a false report, a Class 3 misdemeanor in Colorado. The sheriff does say, however, that he will investigate the possibility of filing federal charges.

Filing a false report is punished more harshly in Tennessee. Depending on the circumstances, T.C.A. section 39-16-502 classifies making a false report in Tennessee as either a Class C or Class D Felony. More than likely, the family responsible for the balloon incident would be charged under T.C.A. section 39-16-502(a)(3), which provides that it is unlawful to:

“(3) Intentionally initiate or circulate a report of a past, present, or impending bombing, fire or other emergency, knowing that the report is false or baseless and knowing:

• (A) It will cause action of any sort by an official or volunteer agency organized to deal with those emergencies;


• (B) It will place a person in fear of imminent serious bodily injury; or


• (C) It will prevent or interrupt the occupation of any building, place of assembly, form of conveyance, or any other place to which the public has access.”

Continue reading "Balloon Hoax may Lead to Criminal Charges" »

Kidnappings seem to be increasingly dominating the national headlines, partly due to the fact that kidnapping is a serious crime that often has devastating effects, but also partly due to the fact that the kidnappings themselves are usually carried out in a bizarre manner. One bizarre kidnapping case from Tennessee has recently found a prominent place on the national news scene.

A baby in Nashville was kidnapped after a lady posed as an immigration official to gain entrance into the mother’s home, stabbed the mother several times, and fled with the baby. Remarkably, the baby was found a few days later and is alive and well. Apparently, immigrant families are frequent targets for such ploys, because the attackers feel that immigrants are less likely to report the kidnappings to the police since they may be illegal immigrants themselves. According to the linked article, the perpetrators of such kidnappings are often women who have faked a pregnancy in order to salvage a relationship or for some other reason and then have to find a way to acquire a baby in order to maintain the façade. This may seem like a good idea to someone who feels like they are in a desperate situation, but kidnapping in Tennessee is met with serious consequences.

Continue reading "Kidnapping in Tennessee" »

If you are someone who likes to enjoy a few beers while traveling on horseback down a dark road, then you can sympathize with a man from McMinn County, Tennessee who was recently arrested for doing just that. According to WBIR.com, the police received complaints about someone riding a horse down a country road at night and sent a deputy out to see what was happening. Upon arriving, the deputy found a man riding his horse down the dark road and noticed that the man was slurring his speech and had several empty beer cans and prescription pills in his saddlebags.

Police arrested the man apparently as much for his own safety as anything else, as the speed limit on the road was fifty-five miles per hour, making it an extremely unsafe area for after-hours equestrian travel. The bad news for the man is that he was charged with public intoxication for his tipsy trek, a Class C misdemeanor under T.C.A. section 39-17-310 punishable by up to thirty days imprisonment. There is some good news for him, however, in that driving under the influence is only applicable to operation of a “motor vehicle” in Tennessee, thus preventing him from being faced with an additional fine of up to $1,500 and suspension of his drivers’ license for one year in accordance with T.C.A. section 55-10-403.

To be guilty of driving under the influence in Tennessee, the statute requires that a person must be in physical control of an automobile or “motor-driven” vehicle at the time of the alleged offense. Thus, while the statute would clearly apply to the operation of an automobile, golf cart, tractor, lawnmower, motorized scooter, or any other similar vehicle it does not apply to the riding or control of animals.

Continue reading "DUI Applies to Motor Vehicles Only" »

Using what may possibly be the worst disguise of all time, none at all, a naked man apparently under the influence of drugs or alcohol broke into a residence in Slidell, Louisiana and made himself at home for a while before eventually leaving. According to the Associated Press, the bare-naked burglar was captured on a surveillance camera taking a shower via a garden hose before breaking several windows and then entering the house. After ransacking the house, the man cooked and ate a full meal, had a few drinks, took another shower (this time inside the home), wrapped himself in a bed sheet, and then exited the home. The police are still looking for the suspect, who will presumably have clothed himself by the time this blog is posted.

Although this is an amusing manner in which to perpetrate a crime, burglary is a serious offense in Tennessee. Burglary in Tennessee of a habitation is considered aggravated burglary and is a Class C felony, punishable by up to fifteen years in prison and a fine not to exceed $10,000. A “habitation” under Tennessee law is basically any building that is designed or adapted to provide overnight accommodations for a person.

The entering of a building or dwelling only constitute a “burglary” as defined by Tennessee law where the offender does one of the following without the consent of the property owner:

1. Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;


2. Remains concealed, with the intent to commit a felony, theft or assault, in a building;


3. Enters a building and commits or attempts to commit a felony, theft or assault; or


4. Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

Continue reading "Naked Man Breaks Into Home, Cooks Dinner" »

Juries are critically important in the American legal system. In civil trials, they often decide if the plaintiff was harmed by the defendant, and how much harm was done. In criminal trials, they often decide not only if the defendant is guilty, but how much time the defendant will have to spend in prison. In more serious criminal trials, they literally decide whether or not someone guilty of a crime has forfeited the right to live. Because having an impartial jury is critical to the outcome of a defendant’s case, the Tennessee Rules of Criminal Procedure contains safeguards to ensure that the jury selected is fair and unbiased. One such safeguard is the right of both the prosecution and defense to exercise peremptory challenges during jury selection.

Tenn. R. Crim. P. Rule 24 allows parties to use peremptory challenges during jury selection to eliminate specific jurors during the jury selection process that either side feels should not be on the jury for one reason or another. The number of peremptory challenges allowed depends on the seriousness of the offense and ranges from three in misdemeanor cases to fifteen in death penalty cases. The Rule also provides for an additional peremptory challenge for each additional or alternate juror that is selected by the court. For example, the court may pick the twelve jurors and then add two jurors as alternates before hearing the case. Likewise, the court may empanel fourteen jurors, hear the case, and then randomly select who the two alternates will be before deliberations begin. Either way, each side would be awarded two additional peremptory challenges for use during the jury selection process.

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It is always a horrible idea to drive while intoxicated, so when a couple from California decided to find a designated driver rather than to drive home in such a condition they were undoubtedly using great judgment. However, their judgment was not as crisp when they decided to bestow that honor upon a thirteen year-old boy. Not wanting to add to an already long list of DUI convictions, the couple decided their best move was to rely on the thirteen year-old to get them home safely. Unfortunately for the couple, the boy apparently got nervous when he drove onto a busy street and stopped in the middle of the road. Police approached the stopped vehicle to see what the problem was and the couple’s plan was foiled. The female member of the couple was charged with child endangerment and contributing to the delinquency of a minor. Her male counterpart was not charged.

Minus aggravating circumstances, child endangerment and contributing to the delinquency of a minor are both Class A misdemeanors in Tennessee, punishable by up to eleven months and twenty-nine days of imprisonment and a fine not to exceed $2,500. Thus, the penalties for these offenses may not be as severe as would the DUI charge if a person already has multiple DUI convictions; however, the real danger in using a thirteen year-old as a designated driver lies in the potential of facing much more serious charges. For example, if the designated driver were to cause or be involved in an automobile accident that resulted in the death of the driver or someone else, the person responsible for allowing the adolescent to drive the car could face a host of very serious charges that encompass a wide spectrum of behavior such as reckless homicide and criminally negligent homicide. These are felony charges and carry much more severe penalties than the misdemeanor charges described above.

Continue reading "Thirteen Year-Old Becomes Designated Driver" »

It seems to be a growing trend for people to call 911 for assistance in non-emergency matters.

Recently, a Florida lady called 911 three times to report that McDonald’s was out of McNuggets and refused to give her a refund. When informed that her situation was not an emergency, she protested that it was indeed an emergency because they were trying to force her to order a McDouble, which she did not want. She did get eventually get her refund but was charged with misusing 911, making her decision to report the McNugget mishap a costly one.

Another prominent example of misusing 911 was provided by Joe McCain, brother of former Presidential candidate John McCain, who called 911 to report that he was sitting in traffic and would like to know why. When the operator questioned McCain’s motive for calling emergency services, McCain became offended, cursed at the operator, and hung up. To make matters worse, McCain again called 911 to complain after an emergency services representative left him a voicemail informing him that such misuse of 911 was illegal.

Continue reading "Dial 911 for Emergencies Only" »

The concept of the plea bargain is one that is at the forefront of criminal law today. Inherent in plea bargaining is the concept of negotiation, and, like in any negotiation, the concept of leverage is critical to the plea bargaining process. Leverage in plea bargaining can take many forms, but as this example will show, a major source for defense lawyers is a pitiable client.

An 85 year-old man from Clarksville, TN was recently charged with raping a mentally disabled victim who was between the ages of thirteen and eighteen. Despite the fact that an eyewitness saw the man inappropriately touching the girl and that some believe the victim could have testified to the rape in Tennessee, the district attorney’s office offered the man a best interest plea to sexual battery, which he accepted. He was thus sentenced to a total of five years probation. The district attorney’s office cited a lack of evidence and the victim’s physical condition as reasons for the offer.

The circumstances of the case would seem to indicate that the offender’s physical condition and advanced age played a much greater role in the offer than the lack of evidence. Robert Nash, the assistant district attorney was quoted as saying "He's an 85-year-old man with serious heart troubles […] [W]e couldn't prove the rape allegations. We just couldn't do it." Nash also said the victim’s disability might have presented problems with testimony. However, Tennessee Rule of Evidence 601 provides that every person is presumed competent to be a witness unless otherwise provided by law, and there is no rule or law that would have prevented the victim in this case from testifying as a competent witness. The Clarksville Police Detective who investigated the incident took a different view, saying "I completely disagree that the evidence could not have been proven, […] I feel as though the eyewitness would've supported the evidence." The evidence certainly seemed adequate to proceed with the case given that the victim and an eyewitness could testify to the alleged behavior, and it is telling that Nash qualified his explanation of the inability to prosecute the case by referring first to the victim’s physical condition.

Continue reading "Using Age as Leverage" »

Courts in Tennessee are generally prone to elevating substance over form whenever possible. For example, a court may treat an incorrectly named motion as though it were correctly named both in the interest of fairness and in order to increase judicial efficiency by preventing the needless revision of formal but harmless defects. Many jurisdictions have extended this concept to the search and seizure arena, holding that evidence seized pursuant to a defective or invalid warrant can be admitted into court if the officers acted honestly and reasonably in executing the search. This is known as the “good faith” exception to excluding evidence. Although Tennessee recognizes this exception in some circumstances, a recent decision by the Tennessee Court of Criminal Appeals reaffirms that Tennessee will not allow use of the exception to overcome the strict standards set forth for the execution of search warrants under the Tennessee Rules of Criminal Procedure.

A search warrant was issued authorizing a search of the home of the Defendant, Mr. Daniels, on December 2, 2005. This search warrant contained a facial defect, with “p.m.” having been circled by the magistrate in scribing the time of the warrant’s issuance rather than the appropriate “a.m.” Apparently this defect went unnoticed at the time the warrant was issued. Pursuant to the search warrant, police discovered illegal drugs in Mr. Daniels’s home, and he was arrested later that same day. Mr. Daniels was charged with two counts of possession with intent to sell, two counts of possession with intent to deliver, and unlawful possession of a handgun. Prior to trial, Mr. Daniels filed a motion to suppress the evidence seized pursuant to the defective search warrant, alleging that the warrant was fatally defective as the magistrate’s endorsing of the incorrect time on the warrant failed to comply with the standards set by Tennessee Rule of Criminal Procedure 41(c). The trial court ruled that it was merely a “clerical error” and said the “good faith” exception was applicable because the error was not significant enough to warrant suppression. The Court of Criminal Appeals disagreed.

Continue reading "Formal Defect Causes Fatal Deficiency" »

When a person is convicted of a crime and proceeds to the sentencing phase, the judge will begin to determine the sentence by looking at the applicable statutory sentencing range as a starting point. The judge will then proceed by applying enhancement or mitigating factors to increase or decrease the sentence as warranted. Tennessee law enumerates several enhancement factors that can be used to increase a defendant’s sentence if the factor is not an essential element of the offense. A simple way to look at enhancement factors is that they tend to be anything that makes the commission of the crime more offensive to the victims or to the public at large.

Tenn. Code Ann. Section 40-35-114 contains a list of enhancement factors in Tennessee, one of which is particularly relevant to this discussion. Tenn. Code. Ann. Section 40-35-114(14) states that an enhancement is warranted where: [t]he defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense.” This enhancement factor will typically be used to increase the sentences of people, such as certain government officials and doctors, who abuse positions in which the public places a higher degree of trust. However, the factor can apply to any person who occupies a position in which the public or a private individual places its trust. Illustrative of this point is a recent case decided by the Tennessee Criminal Court of Appeals, where a judge at the trial court level applied this enhancement factor to a mail carrier.

Although not a profession often thought of when the term “position of trust” is discussed, a mail carrier is responsible for delivering sensitive information and important packages to citizens in the same condition in which it was sent. One such mail carrier, Mr. Bradley, was suspected of abusing his position after a police informant tipped off investigators that he was stealing drugs through the mail. The police then proceeded to set up Mr. Bradley by getting a police informant to arrange to sell narcotics to Mr. Bradley in person, and arrested him for his drug offense at the arranged meeting. Mr. Bradley pled guilty to possession of a controlled Schedule III substance with intent to sell, and received a four-year sentence, which he contended was excessive.

Continue reading "Enhancement Factor: Position of Trust" »