Tennessee Criminal Lawyer Blog

A fifty-one year old Florida woman reached another one of life’s little milestones last week when she successfully robbed a bank in Sanford Florida. The woman reportedly decided to rob the bank because it was on her “bucket list,” which has become a popular term for a list of accomplishments or activities a person wants to see completed before he or she passes away. The woman is quoted as saying that she really did not have a plan for robbing the bank, but just decided to do so on impulse. She then went into the bank apparently armed with nothing but a note demanding cash, handed it to the teller, and walked out with some cash. The woman, who was arrested three days later, now says she regrets the decision and that she will accept the consequences, whatever they may be.

This situation is notable for more than just the woman’s bizarre explanation as to why she robbed the bank. Rather, this situation provides a great example of when multiple mitigating factors may come into play for the defendant at sentencing. The first major issue at play here is that the woman reportedly suffers from non-terminal leukemia and bipolar disorder and had not taken her medication for several days prior to the incident. While this will most likely not be a valid defense to the crime (because someone cannot just forget to take their medicine and then break the law with impunity) it may mitigate toward a lesser sentence for the woman as a substantial ground tending to justify her conduct. Also working in concert with this factor would be the fact that the woman was suffering from a mental condition at the time of the offense that may significantly reduce her culpability for the offense. The defendant in a situation such as this would also potentially be able to rely on the mitigating factor that the offense was committed under such unusual circumstances that it is unlikely that the lady had a sustained intent to violate the law. Finally, the offense did not pose the risk of bodily injury to anyone, which should also work in her favor.

It is also important to note, however, that the “bucket list” excuse is unlikely to buy you any leeway from the court. After all, telling the police that you just wanted to rob a bank one time before you died may make it seem like your life-long aspiration is to be a criminal, an aspiration for which a sentencing court would have very little sympathy. As always, suspects would be well-advised to speak with an attorney prior to revealing any information to the police that may have a tendency to incriminate them with regard to criminal involvement.

Source: http://www.foxnews.com/us/2010/03/30/florida-woman-reportedly-robs-bank-citing-bucket-list/

Most people are familiar with the constitutional guarantee of the right to counsel, but the question of when to invoke it can be a confusing one. As a practical matter, the right to an attorney can be invoked at any time after the suspect has been placed under arrest and read his or her Miranda rights. It is questioning prior to arrest, however, that leads to problems.

The police or other law enforcement officials are allowed to ask you questions prior to arresting you or anyone else for the purposes of gathering information as part of a criminal investigation. These questions are not limited by the Constitution or any other law as to the subject matter about which the police can question you. Persons answering these questions need to be extremely careful as to which questions they answer and what answers they give. How forthcoming an individual chooses to be is probably best determined by how involved in the criminal activity he or she is.

For example, a person who was an eyewitness or innocent bystander and had absolutely nothing to do with the criminal activity under investigation may want to cooperate with the police and assist them in their investigation. Of course, there is absolutely nothing wrong with being helpful to law enforcement. A bigger issue arises, however, when the individual who is being questioned may be a suspect with respect to the criminal activity being investigated.

Continue reading "When to Invoke the Right to an Attorney" »

In what can only be described as one of the odder mother-son interactions you will ever see, a fourteen year-old Toronto boy was arrested last Saturday after he threw a knife at his mother in an effort to stop her from driving drunk. Reportedly, the woman had been drinking and was attempting to get in the car and drive against the wishes of her son. The son took the keys away from his mother, and the dispute only escalated from there, resulting with the boy throwing the knife at his mother. Unfortunately, the throw was a good, one and the knife actually struck the mother in the upper body, causing fairly serious injury. She remained hospitalized in stable condition at the time the article cited below was written. The teen has been charged with aggravated assault.

This scenario provides a perfect example of when the mitigating factor found in T.C.A. § 40-35-113(3) may apply. This factor reads: “substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense.” In this case, the boy will not be able to assert the fact that his mom was attempting to drive drunk as an excuse or defense for launching a knife into his mother’s torso. However, the boy would be able to assert as a mitigating factor the fact that he was terrified at the prospect of his mother driving drunk and getting seriously injured and did anything he could to stop her, which, unfortunately, consisted of throwing his knife at her in a desperate attempt to prevent her from driving. Depending on how well this point is argued and the circumstances of the case, it may help the defendant receive a more lenient sentence. Defendants who feel that mitigating factors such as this one may prove beneficial to their cause should contact an experienced criminal defense attorney who can assist them in mitigating their sentence.

Source: http://www.cbc.ca/canada/manitoba/story/2010/03/28/man-aggravated-assault-teen-mother.html

As the past couple of articles on this blog have noted, criminal defendants have the right to represent themselves at trial thanks to the United States Supreme Court holding in Faretta v. California. However, as has also been noted, this can be a risky proposition. The previous article focused on the complexity of the rules of evidence and how they may pose a problem for inexperienced defendants at trial. This article focuses on an extension of that principle: ineffective assistance of counsel.

Ineffective assistance of counsel is one of the most popularly raised issues in criminal appeals. This is primarily so, because many defendants who are convicted at trial feel (rightly or wrongly) that if their lawyer had been more effective or attentive that they would have been acquitted. It is true that ineffective assistance of counsel does sometimes prejudice defendants at trial and potentially alter the outcome. For this reason, appellate courts will allow a defendant to put on evidence on appeal that his trial counsel was ineffective. In order to prevail on such a claim, however, the defendant must show that his or her trial counsel was indeed ineffective and that the attorney’s ineffectiveness altered the outcome of the case. This is a very big burden and is not often met.

Continue reading "Can I Represent Myself?: Ineffective Assistance of Counsel" »

Yesterday’s blog discussed the United States Supreme Court holding in Faretta v. California that a defendant in a criminal trial has a constitutional right to self-representation. Yesterday’s blog also noted that it is very often a bad idea for defendants to forego either hiring an East Tennessee criminal defense attorney or accepting the assistance of a public defender in favor of representing themselves. The reasons for this are plentiful and will be the subject of the next few blogs on this site.

One of the primary reasons a defendant should not choose self-representation at trial is that the rules of evidence are extremely complex and often vary depending on the jurisdiction. These rules govern how evidence is introduced and admitted at trial, how witnesses can be questioned, how evidence issues are preserved for appeal, how to qualify witnesses as experts, and a multitude of other evidentiary issues that may arise during a trial. The importance of a thorough knowledge of these rules can be seen from the fact that the judge in Farettai reversed his ruling and ordered that the defendant be represented by an attorney after the defendant did not demonstrate a satisfactory knowledge of the rules of evidence at a pretrial hearing. After all, what could possibly be more important in a criminal trial than knowing how and when to introduce favorable or exculpatory evidence and to keep your opponent from doing the same.

Trying to gain a working knowledge of these rules prior to trial would prove overwhelming for most criminal defendants. The criminal trial process can add a lot of anxiety and stress to a defendant’s life, which would complicate the process of preparing for self-representation even further. Often it would be a better course of action to rely on an experienced criminal defense attorney who has not only studied the rules of evidence thoroughly and knows how to use them, but also has experience applying those rules to real-life situations during the course of a criminal trial.

The United States Constitution guarantees a plethora of rights to the accused in criminal trials including rights that have previously been discussed in this blog such as the right to remain silent, the right to an attorney, and the right to be free from unreasonable searches and seizures. One right that has not been previously been discussed on this site, however, is the right not to have an attorney. That is, do criminal defendants have the right to represent themselves, also known as proceeding pro se, or can the court force them to have an attorney at trial?

The United States Supreme Court took encountered this issue head-on in Faretta v. California in 1975. In Faretta, the defendant was charged with grand theft and a public defender was appointed to represent Faretta at his arraignment. Prior to trial, Faretta (believing that he could provide himself with the best representation because the public defender had a heavy case load) requested that the public defender be removed from the case and that Faretta be allowed to represent himself. The trial judge warned Faretta that he believed him to be “making a mistake” and informed him that he would receive no special favors at trial, but the judge accepted Farretta’s waiver of counsel and allowed him to proceed pro se. A few weeks later, the judge held a hearing at which he sought to test Faretta’s knowledge of courtroom procedure and the rules of evidence. After the hearing, the judge was not convinced that Faretta was familiar enough with courtroom rules and procedure to represent himself at trial and reversed his earlier ruling, appointing an attorney for Faretta. After Faretta was convicted at trial, he appealed, arguing that he was denied his constitutional right to represent himself at trial.

Continue reading "Can I Represent Myself?" »

The right to remain silent is one of the most notable, useful, and important rights guaranteed to United States citizens via the Constitution. If you have ever watched even five minutes of any show featuring law enforcement, you have more than likely heard this right alluded to in a Miranda warning. However, one doesn’t have to be under arrest in order to exercise this right. In fact, one can use it to avoid giving any information that isn’t extremely basic, like what your name is, e.g., depending on the circumstances. This right, when asserted, allows the defendant to avoid giving incriminating information to the authorities, or at least avoid speaking to law enforcement before he is afforded the opportunity to speak to an attorney. In some situations, the failure to remain silent can have disastrous consequences.

Two Tennessee men were rolling through New York recently when they were pulled over by the police for having tinted windows and a missing license plate. When police asked the driver for his license, he handed it over along with his Tennessee gun permit while informing the policeman that he had a gun in the car, evidently in an attempt to be forthright with the officer. Unfortunately for the driver, his valid Tennessee gun permit was meaningless in the jurisdiction in which he was pulled over, so he had unwittingly given the police cause to arrest him. The driver also didn’t stop there with his efforts at being helpful, as he also informed the police that he had drugs and drug paraphernalia in the car as well as handcuffs, bullets, and an extra gun magazine. The passenger, also feeling particularly chatty at the time, volunteered that he too had a couple of “blunts” in the car’s ashtray.

These men were extremely helpful to and honest with the authorities and that may pay off when it comes to the sentencing phase of their trials if they are convicted, a topic which will be discussed in a later blog. However, there is a decent chance that if they had remained silent the police may have conducted the entire traffic stop without ever garnering any knowledge of the drugs or weapons at all. In situations like this, the defendants could have benefited greatly from either refusing to talk or asking to speak to an attorney immediately and may have been able to avoid many of the charges which they are now facing.

Source: http://www.cbsnews.com/8301-504083_162-20000932-504083.html

A defendant’s criminal history is extremely relevant once a conviction or guilty plea has been obtained and the trial proceeds to the sentencing phase. The defendant’s criminal history will play a significant role in sentencing and may factor into the length of the sentence, the type of sentence, and whether the sentences will run consecutively or concurrently. If sentences run consecutively, it means that they run back-to-back. For example, two five-year consecutive sentences would amount to a ten year sentence. Conversely, concurrent five-year sentences run at the same time, meaning two five-year concurrent sentences would only result in five years of jail time. As you can see, this distinction can make a world of difference in the amount of punishment a citizen is subjected to.

The Tennessee Code allows a defendant’s sentence to be enhanced or allows two sentences to run consecutively if the defendant has an extensive criminal history. It is important, then to know what exactly can be considered in determining a defendant’s criminal history. The answer may surprise you.

In State v. Harris, the defendant was convicted of possession of marijuana with intent to sell, possession of marijuana with intent to deliver, and evading arrest. He was sentenced to four years total on the felony charges and given an eleven month and twenty-nine day consecutive sentence on the evading arrest charge. The defendant appealed this sentence, and the Court of Criminal Appeals held that the consecutive sentencing was justified based on the fact that the defendant had an extensive criminal history. In detailing the defendant’s criminal history, the Court of Criminal Appeals cited the defendant’s twenty-five prior felony, misdemeanor, and traffic offenses as a sufficient basis for conviction.

It may seem unfair that something that running a red light can enhance a conviction for a felony but under the rule explained in Harris, that potentiality actually does exist. For this reason, criminal defendants would be well-advised to contact an experienced criminal defense attorney who can work to minimize the effect of prior offenses and get the defendant a lenient and fair sentence.
Source: (State v. Harris, 35 TAM 12-19, 2/2/10, Jackson, Glenn, 8 pages.)

Mootness is an issue that is not encountered all too often in criminal law, but it can have important consequences when it surfaces. When an issue is moot, it basically means that circumstances surrounding or pertaining to the issue are such that there is no reason to take further legal proceedings with regard to the issue or that the issue is beyond the scope of court proceedings. Basically, it just means there is no reason to discuss or treat the issue any further. The doctrine of mootness is well-illustrated by a case that recently came before the Tennessee Court of Criminal Appeals.

In State v. Willis, the defendant was charged with DUI and went to trial. At the trial, there was an issue as to whether a breathalyzer machine was available and the defendant objected to the court’s admission of the breathalyzer results into evidence. The jury, even after considering the breathalyzer results, found the defendant not guilty of DUI per se, but he was still convicted of DUI by impairment. He was sentenced to eleven months and twenty-nine days, sixty days to be served in a workhouse and the rest on probation. He tried to appeal the decision based on the trial court’s admission of the breathalyzer results.

The Court of Criminal Appeals ruled that the issue he raised for appeal was moot, because the jury acquitted the defendant of DUI per se, which is what the breathalyzer test establishes. The defendant was convicted of Tennessee DUI by impairment based on other evidence which included that the officer saw defendant toss beer can into back seat of his truck, the defendant smelled of alcohol, had bloodshot eyes, and stumbled when he walked, and that the defendant failed three field sobriety tests on scene and failed them again when he repeated the tests at the police station. The Court thus found that the evidence was sufficient to convict the defendant of DUI by impairment.

In this case, the admission of the breathalyzer test was a mot issue because the breathalyzer results portended only to the issue of whether the defendant was guilty of a DUI per se, which by statute is established if a defendant has a BAC in excess of the legal limit. Since the defendant was acquitted by the jury on the DUI per se charge, it made no difference for all practical purposes whether the breathalyzer results were admitted properly. Thus, the defendant stood nothing to gain by pressing the issue on appeal.

Source: (State v. Willis, 35 TAM 11-27, 1/20/10, Jackson, McLin, 7 pages.)

For various reasons, a guilty plea is not an agreement to be entered into lightly and the considerations that the defendant must take into account extend beyond merely what punishment or lack thereof is being offered by the state. For example, entering a guilty plea may also impose additional burdens on a defendant (depending on the terms of the agreement) including the loss of the right to appeal the case.

This principle is illustrated by taking a look at State v. Weaver, a case that recently came before the Tennessee Court of Criminal Appeals. In Weaver, the defendant pled guilty to possession of cocaine in Tennessee with intent to sell and was given a four-year suspended sentence. Soon thereafter, he tried to withdraw his guilty plea, claiming that at the time he pleaded guilty, he was not aware that he was forfeiting his right to appeal a question of law relating to his charges. The Court of Criminal Appeals denied the defendant’s request to withdraw his guilty plea, holding that the defendant’s situation did not meet the standard of “manifest injustice” required to withdraw the plea.

Continue reading "Appealing A Guilty Plea" »

The way that Tennessee’s simple possession statute is written provides that it is an offense for a person to possess a controlled substance “[u]nless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.” Thus, Tennessee law creates a “valid prescription” defense to a simple possession charge. To establish such a defense, a defendant basically has to prove to a jury’s satisfaction that he or she had a valid prescription to possess the controlled substance at the time the offense was committed.

In a case that recently came before the Tennessee Court of Criminal Appeals, the defendant tried to prove that he possessed a valid prescription for a controlled substance by arguing that the prescription belonged to his friend and that his friend had a prescription for the substance which created a situation that would establish a “valid prescription” defense. However, the defendant offered no evidence that his friend had a valid prescription for the substance other than the friend’s testimony. No pharmaceutical or medical testimony or records were offered at all. The jury was thus free to find, and did so find, that the “valid prescription” defense was not established and that the defendant was guilty of simple possession.

When, as here, a defense against a criminal charge exists, proof of the defense must be established in a persuasive enough manner to convince the jury or judge trying the case that the claim of defense is actually true. With regard to a valid prescription defense, medical or pharmaceutical records showing proof of the prescription are by far the most persuasive evidence that can be offered, and should have been offered in the above case if such records existed. Defendants who find themselves in similar situations would be wise to contact an experienced East Tennessee drug crime defense attorney who can assist them in the presentation of their defense
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Source: (State v. Kilpatrick, 35 TAM 11-25, 1/21/10, Nashville, Witt, 6 pages.)

A would-be burglar got more than he bargained for last September when he broke into a home shared by several Johns Hopkins University Students. Apparently the students had heard him come into the house and four of them confronted him in the garage, one of whom was somehow armed with a samurai sword. The students, who had contacted authorities, were attempting to hold the burglar in the garage until police arrived when the burglar reportedly lunged at the student who was holding the sword. In a seeming self-defense effort, the student swung the sword at the burglar, severing the burglar’s left hand completely and cutting the man’s upper body. The burglar died from his injuries. Controversy surrounded the case concerning whether or not the student should face criminal charges. As of this writing, he has not been formally charged in connection with the incident.

One important point to be taken from this situation is that it is not wise to break into the homes of ninjas. On a more serious note, this case illustrates how fine the line can be between murder and self-defense. In Tennessee, a person has the right to use a reasonable amount of force against another to prevent the suffering of death or bodily harm. Thus, the factors that would be considered in charging the individual in Tennessee would be whether the burglar could reasonably have been thought to have presented a risk of serious bodily injury or death to the students and whether the use of the sword in self-defense was a reasonable use of force. Considering that the burglar was reportedly lunging at the student holding the sword in what may have been an attempt to obtain control of the weapon, the student may have been justified in using that sword to defend himself from that risk. Whether or not this situation weighs more toward self-defense or homicide charges will ultimately rest with the discretion of the prosecutor.

Source: http://www.cnn.com/2009/CRIME/09/15/samurai.sword.killing/index.html

In previous articles, this blog has discussed the vehicle exception to the requirement that law enforcement officials must obtain a search warrant in order to search a person’s property for evidence of a crime. Simply put, law enforcement officials may search a vehicle without a warrant where they have probable cause to believe that evidence of criminal activity will be found inside the vehicle and where exigent circumstances exist that necessitate searching the vehicle immediately. With respect to automobiles, the requisite circumstances basically exist where the automobile can be driven out of the jurisdiction and thus poses the threat of loss or destruction of evidence. Although this exception has been in place for quite a while, it has not always been clear exactly how intrusive the search was allowed to be with respect to items found inside the vehicle. That is, can law enforcement officials only seize what is in “plain view” in the vehicle, or may they conduct a more extensive search that extends to opening containers, bags, etc. that are found inside the vehicle?

In California v. Acevedo, the United States Supreme Court provided some clarity on this issue. In summary, the Court held that where police officers have probable cause to search a vehicle under the vehicle exception the officers are allowed to search containers such as bags, cans, pouches, and so forth to the same extent that they would be allowed to search them had they actually gone before a magistrate and obtained a search warrant. This holding basically means that if the police have probable cause to search a part of a vehicle, they are also allowed to search inside containers found in that part of the vehicle that may contain evidence of criminal activity. It should be noted, however, that this ruling does not extend outside the subject of containers found inside vehicles. That is, the ruling does not take away the requirement that law enforcement officials have probable cause in order to search all or part of a vehicle. This requirement will be explained in more detail in upcoming blogs.

Prosecutors in criminal cases are often placed in difficult positions. On one hand, they have to be diligent in representing the state for which they work while on the other hand, they have to avoid doing or saying anything inappropriate that might be challenged by the defendant on appeal as having been unduly harmful to the defendant’s case. A good example of this principle can be found by looking at State v. Young, a case that recently came before the Tennessee Court of Criminal Appeals.

In Young, the defendant alleged that the prosecutor made several inappropriate remarks during closing arguments that unfairly prejudiced the jury against the defendant. However, since the defense counsel only objected to one such remark (the prosecution calling the defendant a “pervert”) and did not address any other remarks in the defendant’s motion for a new trial, the Court of Criminal Appeals only considered the use of the term “pervert” in deciding whether or not the defendant should be granted a new trial. The court found that although the use of the term “pervert” was an inappropriate use of a personal epithet by the prosecutor, it was not so prejudicial to defendant as to harm his case because defense counsel objected immediately and the trial court sustained the objection and made clear that the comment was inappropriate. Also, the defense counsel repeated the term in his closing argument and there was no evidence that the prosecutor acted maliciously.

Misconduct by prosecutors is often unintentional and is done without malice. However, it still may be prejudicial to the defendant’s case and may even warrant a new trial. In this case, much of what the defendant wanted to raise in front of the Court of Criminal Appeals was seemingly beyond the scope of the appeal at least in part because steps were not taken to preserve the issues for the record. The issue of prosecutorial misconduct thus also emphasizes the need for skilled and experienced Knoxville criminal defense counsel who can work to ensure that the defendant receives a fair trial.

Source: (State v. Young, 35 TAM 11-23, 1/15/10, Jackson, McLin, 7 pages.)

With regard to criminal offenses, the circumstances surrounding the offense are often critical in determining both how a defendant is charged and how a defendant is sentenced if he or she is convicted. In many cases, the events occur in a particular order or in a particular way that makes the difference in whether or not the defendant is subjected to much more serious punishment than the defendant would be absent the particular circumstances. For an example, look to State v. White, a case that recently came before the Tennessee Court of Criminal Appeals.

In White, an issue arose as to whether or not the victim suffered serious bodily injury during the commission of a robbery. If the victim did suffer such injury during the commission of the offense, the defendant would be facing a Class B felony charge of especially aggravated robbery which carries a thirty year maximum prison turn. However, if the victim did not suffer the injury during the commission of the offense, the defendant would be looking at the Class C felony charge of aggravated robbery, which carries a fifteen year maximum prison term. The difference in this case was thus a possible fifteen year prison sentence increase.

Continue reading "Circumstances are Key in Criminal Cases" »

Whether statements and confessions given by suspects to police should be electronically recorded is an issue that is beginning to come to the forefront of criminal law across the nation. Proponents of mandatory recording argue that recording is necessary to ensure fairness for defendants and efficiency in the courts. The thrust of their argument is that if all statements and confessions had to be recorded, there would be no question about what the defendant said or admitted to during interrogation and there would also be evidence of whether or not various constitutional requirements were met concerning the interrogation, such as whether the defendant was properly Mirandized. Opponents of mandatory recording argue that such a requirement would impede the interrogation process, make defendants less likely to give statements, and would interfere with the discretion of law enforcement in doing their jobs.

Associations such as the National Association of Criminal Defense Lawyers, The Innocence Project, and the American Civil Liberties Union are all in favor of mandatory recording of interrogations, with good reason. Studies by those groups have shown that rather than the interrogation process being hindered by mandatory recording, jurisdictions that have implemented mandatory recording have noticed that suspects are no less willing and in many instances more likely to give statements or confessions than before.

The benefits of mandatory recording are numerous. First, it ensures that suspects are protected because they are allowed to have their exact words recorded electronically rather than having a statement or confession written for them by a law enforcement official. In this way, it also protects law enforcement officials from accusations of coercion or intimidation because the entire confession is recorded and available verbatim for use at trial. Electronic recording also helps to protect suspects from false confessions resulting from coercion, intimidation, exhaustion, etc. There are many more benefits to electronic confessions that can be found in this article from The Justice Project.

Simply put, there is no reason given the state of technology today that some form of electronic recording of interrogations should be mandated in all fifty states, including Tennessee where there is no such mandate currently in place. Electronic recording of interrogation would provide an important safeguard against false and coerced confessions at merely the cost of a tape recorder or video camera. Given that the liberty of suspects is at stake, there is no persuasive reason why the interrogation process should not be preserved verbatim for use during the trial process.

Criminal trials can take months, years, or even decades from start to finish. Not surprisingly, laws can change mid-trial for many defendants for various reasons and can cause a great deal of confusion for defendants when laws change that directly affect the defendant’s case or sentencing. For an example of this, one can look to State v. Gholston, a case that recently came on appeal before the Tennessee Court of Criminal Appeals.

In Gholston, the defendant committed the offenses for which he was indicted in July of 2004. While the case was going through the trial process, the Tennessee legislature adopted the Sentencing Reform Act of 2005, which changed, in various ways, the procedures and methodology for sentencing defendants. Due to the fact that the defendant was sentenced in 2006, an issue arose at trial as to whether the defendant should be sentenced under the sentencing regime that existed prior to the 2005 Reform Act (at the time the defendant was charged) or under the 2005 Reform Act, which existed at the time the defendant was sentenced. The Court held that unless the defendant had signed a written waiver acknowledging that he wished to be sentenced under the new regime, the sentencing regime that was in effect at the time the defendant was charged would be the one that was applied in the defendant’s case.

This holding makes sense for many reasons, maybe most notably the fact that the criminal justice system places a great emphasis on making sure that defendants receive notice of the laws under which they are charged. It is this emphasis on notice that is evident in the United States Constitution, which forbids the government from passing any ex post facto law that would criminalize conduct or change the penalty for that conduct after the conduct has already happened. Simply put, it is unconstitutional for a defendant to be affected by any law that was not in effect and published at the time of the defendant’s alleged misconduct without the consent of the defendant.

Source: (State v. Gholston, 35 TAM 10-18, 1/5/10, Nashville, Tipton, 5 pages.)

Hearing that someone is sentenced to a “life sentence” is fairly common, especially with regard to the legal headlines where the most heinous crimes (with the harshest sentences) tend to dominate. However, what exactly constitutes a life sentence is not a subject that comes up with much frequency. A recent case that came before the Tennessee Court of Criminal Appeals helps to explain the exact meaning of the term.

In the case of State v. Martinez, the defendant was accused of aggravated rape and fled to Mexico to avoid the charges. He was apprehended in Mexico and signed an extradition agreement that allowed him to be sent back to the United States for trial which contained a provision that stipulated that the trial court could not seek a sentence of life imprisonment in the defendant’s case. The defendant pleaded guilty upon returning to the United States and was sentenced to eighty-eight years in prison. Since the defendant was not born in the Old Testament and is most likely not a vampire, this is effectively a life sentence. Not surprisingly, the defendant argued that the trial court had imposed a life sentence on him in violation of the extradition agreement. The Tennessee Court of Criminal Appeals did not agree with the defendant and upheld his sentence.

In this case, the Court of Criminal Appeals distinguished between a “life sentence” and a “sentence that exceeds the defendant’s life expectancy.” Even though the sentence in this case was eighty-eight years, it did not qualify as the former and merely fell into the latter category. Thus, the defendant basically pleaded guilty to the exact sentence that he was trying to avoid. The lesson learned, that a “life sentence” does not include sentences that extend beyond the amount of time a defendant expects to live but only includes a literal sentence of life in prison, was a costly one in this case. One way to avoid a mistake like the one that was made in this case is to rely on experienced defense counsel to guide you through the trial process.

Source: (State v. Martinez, 35 TAM 10-17, 1/11/10, Nashville, McLin, 17 pages.)

For a criminal defendant, an enhancement factor is something he or she wants to avoid if at all possible. Simply put, an enhancement factor is a factor that can be considered by the trial court in imposing a more severe sentence on the defendant than would otherwise be imposed in the absence of such a factor. For most offenses, Tennessee law presumes that the defendant will be sentenced at the minimum of the applicable sentencing range unless enhancement factors apply. Thus, avoiding enhancement factors is of critical importance in many critical trials.

The Tennessee Code sets out a list of enhancement factors the court may consider in imposing a sentence. When the court decides to use an enhancement factor to “enhance” a defendant’s sentence, the court must specifically state that it is applying the factor and set out how much weight it is placing on that factor and why. This enables the appellate court to review the use of the factor in determining if the sentence was appropriate.
One restriction that Tennessee law has placed upon the usage of enhancement factors is that an enhancement factor cannot be used to enhance a sentence if that factor is already an element of the offense. A good example comes from a case styled State v. Nolan that came before the Tennessee Court of Criminal Appeals recently. In this case, the defendant was convicted of aggravated assault, of which one element is “serious bodily injury.” In sentencing the defendant, the judge also applied the enhancement factor found in T.C.A. § 40-35-114(6) which states that a defendant’s sentence can be enhanced if the injuries inflicted on the victim were “particularly great.” The defendant contended that his sentence was excessive and the Court of Criminal Appeals examined the sentence. The Court ruled that the enhancement factor applied by the court was effectively equivalent to the “serious bodily injury” element of aggravated assault and that to apply the enhancement factor would essentially be equal to punishing the defendant twice for the same offense.

The moral of this story, however, is not that if you are going to commit an offense that involves serious bodily injury to go ahead and beat them up really good because no one can do anything about it. Rather, it is that defendants may be able to contest the application of enhancement factors in situations where they are not appropriate. An experienced criminal defense attorney can assist a great deal in such a matter.

Source: State v. Nolan, 35 TAM 9-29, 12/28/09, Knoxville, Tipton, 10 pages.

Yesterday’s article focused specifically on searches of open fields, the significance of those areas being that they are sometimes used for the purpose of conducting illegal activities such as growing marijuana. The question regarding those areas for constitutional purposes is basically whether or not law enforcement officials can search for and seize evidence from those areas without first having to obtain a search warrant. The “open fields” doctrine established by the United States Supreme Court in Hester made it clear that they did not.

The Hester analysis, while it was and still is accurate, has since been superseded with regard to how to analyze a search by a test set forth by the United States Supreme Court in the case of Katz v. U.S. Katz established a two-part test for what constitutes a search for Fourth Amendment purposes. First, for a search to have occurred, it must have taken place in an area for which a person has an actual expectation of privacy (this is based on the specific person’s expectation, not an objective analysis). Second, the expectation of privacy must be reasonable. This case was based on the idea that the Fourth Amendment aims to protect the rights of citizens rather than the rights of certain locations, thus basing whether or not a search has occurred largely on the perception of the suspect in light of what society considers reasonable.

This case overruled the “open fields” doctrine to an extent, as it shifted the focus away from what was or was not a constitutionally protected area and toward the two-part test described above. However, the same result would be reached for all practical purposes with regard to the subject of “open fields” under the new analysis. Under the Katz test, there simply would be no search at all, since the location is one in which the Supreme Court has already ruled a person can not reasonably expect to have a constitutionally protected privacy right.

Search warrant issues arise with great frequency in the East Tennessee criminal law context, as law enforcement officials often seize narcotics, weapons, or some other evidence that is extremely damaging to the defendant’s case. As such, the defendant needs to find a way to keep such evidence from getting admitted if possible. The defendant will thus look for a way to argue that the search is unconstitutional and seek to have the evidence excluded. Defendants have a constitutional right to be free from unreasonable searches and seizures of their homes, persons, papers, and effects under the Fourth Amendment to the United States Constitution. Whether a particular area or piece of property falls within these protected categories has often been a subject of contention in criminal cases.

As a result of such a controversy, the United States Supreme Court established what is known as the “Open Fields” doctrine. In Hester v. United States, the Supreme Court ruled that although a person is free from unreasonable seizures with respect to the four categories mentioned above, open fields do not fall within any of those categories. In doing so, the court basically held that a citizen cannot reasonably expect to have a constitutionally protected right of privacy with respect to open fields, in part because it would be near-impossible to safeguard that privacy in many situations.

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In a case styled Florida v. Powell that threatens to erode the effectiveness of Miranda warnings a great deal, the United States Supreme Court ruled on February 23, 2010 that a suspect does not have to be expressly advised during an interrogation of his or her right to have counsel present during the questioning in order to satisfy the requirements of Miranda. The Miranda warning given in this case, which was held by the Court to satisfy all constitutional requirements consisted of the following text:

"You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

The problem with this warning is that the defendant was not explicitly advised that he had the right to have counsel present during questioning. While the Court found that the language of this warning was sufficient to convey to the defendant that he had this right and that it could be exercised at any time, the plain language of the warning suggests a different interpretation. While the warning suggests that the defendant can invoke any of his rights at any time during the interview, the right to talk to a lawyer is specifically limited by the phrase “before answering any of our questions.” Such phrasing could easily have suggested to the defendant that he had the right to consult to his attorney prior to questioning but no such right during or after questioning given the way that right was described in the above warning. This may not, and probably was not, how the phrase was intended by the law enforcement official who gave the warning, but it was nevertheless ambiguous and arguably did not clearly convey that the defendant had the right to have his criminal defense attorney present before, during, and after questioning.

Given that what was at stake here was basically the right of law enforcement officials to ad lib Miranda warnings with impunity versus the constitutional rights of the defendant, the Court should have been much stricter in applying the requirements of Miranda to the instant case. The decision in this case threatens to engender situations in which defendants are clearly not advised of their rights in accordance with Miranda but courts decide the warning given was effectively “good enough.” This is a dangerous situation that may serve to severely jeopardize defendants with regard to confessions and other evidence gathered during the interrogation process.

Source: http://onthedocket.org/articles/2010/02/23/court-approves-floridas-miranda-warning-feb-23-2010-0

For a criminal defendant, one of the most damaging pieces of evidence at trial can be a prior conviction. The admission of a prior conviction via impeachment can do irreparable damage to a defendant, making them appear untrustworthy, dishonest, or otherwise not credible as to their testimony. As such, both state and federal courts provide defendants with protection in the form of a multi-prong test that must be met before the prior conviction can be admitted.

First, the witness must be asked about the conviction on cross-examination. Basically, this means that the conviction can’t just be entered into evidence without the witness being asked about it. The thrust of this rule is that such convictions cannot get into evidence if the witness does not take the witness stand. This gives the witness the opportunity to admit, deny, or explain the conviction and allows the witness to have a fair chance to mitigate the damage that the conviction might to do his or her credibility or case.

Second, the crime must either be a felony or be a crime of dishonesty or false statement. This basically means that petty crimes and misdemeanor offenses that have nothing to do with the witness’s character for truthfulness will not be admissible. This reflects a conscious determination that felonies and offenses bearing on truthfulness are the only prior convictions with enough relevance to be presented to the jury in the courtroom.

Third, if the witness is the defendant in a criminal trial, the State has to give the defendant reasonable written notice of the conviction before trial, and the court must make a determination that the conviction's probative value as to credibility outweighs its unfair prejudicial effect on the substantive issues. The court can rule on the admissibility of the conviction prior to the trial but it must rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused does not have to actually testify at the trial to later challenge the court’s admission of the conviction.

The rule also contains various other protections designed to make sure that the conviction is relevant in the current proceeding. One of those protections is a rule that a conviction is much harder to get admitted if more than ten years has elapsed since the conviction or release from incarceration, depending on the circumstances. Such evidence is also not admissible in some circumstances where the defendant has received a pardon. In sum, although such evidence can be very damaging to the defendant, the defendant also has a substantial amount of protection against the admission of convictions that are not relevant and meaningful to the case at hand.