Tennessee Criminal Lawyer Blog

Prosecutorial Misconduct

2010-03-12T18:44:45Z

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.)

Circumstances are Key in Criminal Cases

2010-03-12T00:27:16Z

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.

]]> The defendant was convicted of especially aggravated robbery and then appealed, arguing that because the robbery was completed and then a period of time elapsed before the victim was injured (and hence that the injury did not actually occur during the robbery) that he could not be convicted of especially aggravated robbery. The Court of Criminal Appeals agreed with the defendant and held that the defendant’s injury did not occur “contemporaneous with” the robbery, overturning the especially aggravated robbery conviction. Thus, this was a situation where the order and spacing of events played a critical role in the defendant’s sentencing. Defendants who feel like the circumstances surrounding their case are such that they have been incorrectly charged or convicted should contact a criminal defense attorney in East Tennessee who can assist them in resolving their case.

Source: (State v. White, 35 TAM 11-20, 1/25/10, Jackson, Welles, 17 pages.)

Electronic Recording of Statements Made to Police Should Be Mandatory

2010-03-11T04:29:32Z

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.

What Happens When the Laws Change?

2010-03-10T02:54:52Z

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.)

What is a “Life Sentence?”

2010-03-09T02:41:31Z

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.)

Enhancement Factors

2010-03-06T02:46:04Z

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.

Search Warrants: What is a “Search?”

2010-03-04T19:48:32Z

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 Warrants: "Open Fields" Doctrine

2010-03-03T22:36:18Z

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.

]]> Open fields are often viewable and accessible by the public with little trouble. Even protections such as fences and “no trespassing” signs do little to keep trespassers off of a parcel of property, especially if it is particularly amenable to some sort of recreational activity, such as hunting or fishing. Thus, the Court concluded, it is simply not reasonable for a property owner to expect the same type of privacy on such land as he or she does with respect to their own home.

This doctrine has been eroded somewhat by a later decision of the Supreme Court in a case styled Katz v. United States, which is the subject of tomorrow’s blog. Search warrant issues, like many Constitutional issues, are complex and persons who feel that their privacy rights have been violated by an illegal search would be wise to consult an experienced criminal defense attorney for assistance in resolving their case.

US Supreme Court Rules on Miranda Issue

2010-03-03T00:18:11Z

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

Use of Prior Convictions at Trial

2010-03-02T02:51:57Z

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.

Request for an Attorney Must be Unequivocal

2010-02-26T22:01:53Z

In what is a somewhat bizarre case, the Tennessee Supreme Court will decide soon what type of speech qualifies as a request for an attorney. A defendant is constitutionally guaranteed the right to an attorney but in order to exercise that right, the defendant must make a clear and unequivocal request for an attorney so that law enforcement officials know that an attorney is being requested. In State v. Turner, the Tennessee Supreme Court will take a look at just how clear and unequivocal that request has to be.

In Turner, the defendant was arrested for murder and robbery and taken into custody. While in custody, he gave a statement to police admitting his involvement in the crimes. However, defendant apparently made several different statements indicating his desire for a Tennessee criminal defense attorney during the interrogation process, which seemed to indicate that he was asserting his Miranda right to counsel and did not wish to proceed further into the process without an attorney. The defendant made statements such as “Are you my lawyer?”; “How quick will my lawyer get here?”; Will my lawyer get here today?”; Do I need to get a lawyer?”; and “Get me a lawyer.”

]]> Thus, it would not seem to be one of the great mysteries of the world that the suspect wished to be represented by counsel. Nonetheless, interrogation proceeded, and the defendant’s motion to suppress the admission was not granted by the trial court. Likewise, the Court of Criminal Appeals ruled that under the circumstances the defendant did not make an unconditional and unequivocal request for counsel and upheld the ruling of the trial court.

The statement “Get me a lawyer” seems to be devoid of any ambiguity and altogether not subtle in its demand for counsel. However, the courts to approach the issue so far have not agreed. In deciding this case, the Tennessee Supreme Court will essentially be deciding how to make a clear and unequivocal request for counsel, which should be an interesting decision and one that could prove important in the field of criminal law for years to come.

Source: State v.Turner, 34 TAM 13-20 (Tenn.Cr.App. 2009), appeal granted 6/15/09, oral argument 11/5/09.

Right to Confrontation Case to Come Before State's Highest Court

2010-02-25T21:52:34Z

Cases that deal with constitutional rights are often some of the most difficult to analyze and thus often find their way to the highest courts. As such, it is no surprise that a case dealing with a defendant’s constitutional right to confrontation would make its way to the Supreme Court in a case on its upcoming docket styled State v. Franklin, especially considering that what is at stake may be a prison sentence in excess of a decade. To quickly summarize the constitutional right at issue in this case it is sufficient to say that when a witness offers important testimony or evidence against a defendant in a criminal case, that defendant has a constitutional right to confront the witness. This does not mean that the defendant gets to personally confront the witness like the witness said something about the defendant’s mother, but rather that the defendant gets the opportunity to cross-examine the witness at trial rather than just having to accept the damaging testimony or evidence without further questioning.

In the case detailed above, the state introduced testimony from a gas station clerk stating that after the gas station had been robbed, the clerk had went to a nearby witness and asked him to write down the license plate number of the van he had seen the suspect drive away in. The clerk then testified to the license plate number she had seen the witness write on the piece of paper. This raised an obvious confrontation issue because the defendant would thus have been forced to accept the facts that the witness had seen the defendant get into the van and had seen the license plate number of that van accurately without being availed of any opportunity to cross-examine the witness to see if he or she was actually in a position to see the license plate, was able to see well enough to make out the license plate from that distance, etc. The trial court allowed the testimony, but it was overruled by the intermediate appellate court. The Tennessee Supreme Court will now have to decide which one of those courts made the correct holding.

Source: State v. Franklin, 34 TAM 5-23 (Tenn.Cr.App. 2009), appeal granted 6/15/09, oral argument 2/12/10.

Tennessee Supreme Court to Hear Right to Privacy Issue

2010-02-25T01:50:13Z

The right to privacy is one of the most important rights guaranteed to Americans by the United States Constitution, and implicit in that right are many constitutional guarantees that are protected by the courts. One such right is the right to be free from unreasonable searches and seizures at the behest of law enforcement. The right to privacy in this context basically guarantees that in most situations a law enforcement official cannot make a warrantless entry unsupported by probable cause into a person’s home for the purposes of searching for or seizing evidence.

The right to privacy, however, does have some limitations. One of those limitations is that the right does not exist where the person has no reasonable expectation of privacy. There can be a plethora of reasons for why a person may have a diminished expectation of privacy, and one of those reasons is set to come before the Tennessee Supreme Court on its upcoming docket. In an upcoming case styled State v. Talley, the Court will decide if the defendant had a reasonable expectation of privacy with regard to the common areas of his condominium complex, a common area to which many third parties had unrestricted access. In this case, detectives had performed a warrantless search of the common areas by asking a third party if they could come inside the condominium and look around and obtaining consent to do so. They then gathered evidence that was in plain view in order to provide them with probable cause to execute the search later. The defendant contended that the search was unconstitutional, but his motion was unsuccessful.

While it is true that defendants do not generally have a reasonable expectation of privacy with regard to places where a numerous amount of third parties have unfettered access, some circumstances in this case suggest that law enforcement officials may have overstepped their constitutional boundaries. For example, they specifically went to the defendant’s condominium and knocked on the door, asking if the defendant was home. Upon learning that he wasn’t home, they asked to be let in anyway while concealing the fact that they were detectives. This was done deliberately in an attempt to gather evidence that would provide probable cause for a more extensive search at a later time. Thus, law enforcement officials here essentially exploited the fact that the defendant was not home to manufacture probable cause without first obtaining a search warrant. The Court’s ruling on this one should be intriguing, as it pits the strength one of the most important rights guaranteed to citizens by the Constitution against the necessity of law enforcement officials having discretion as to how they perform their work.

Source: State v. Talley, 34 TAM 33-16 (Tenn.Cr.App. 2009), appeal granted 11/23/09, oral argument 2/11/10.

State Supreme Court to Look at Traffic Stop Issue

2010-02-23T22:50:50Z

The validity of traffic stops is a frequently contested issue in Tennessee criminal law, and with good reason. In many cases, it is the act of initiating a traffic stop that leads to charges of driving under the influence, simple possession, possession with intent to distribute, and many others. The United States and Tennessee Constitutions protect drivers from unreasonable searches and seizures, which has basically been interpreted in Tennessee to mean that a police officer must have “reasonable suspicion,” to believe the vehicle or its occupants are involved in criminal activity in order to stop the vehicle. Such suspicion can be provided by many different circumstances, such as the driver violating a traffic ordinance or driving suspiciously in some cases.

In State v. Brotherton, the Court will decide if a police officer had reasonable suspicion to stop the defendant’s vehicle based on the fact that the taillight was not in “good condition” because it was projecting a glaring or dazzling light. In this case, the defendant had broken the taillight and attempted to repair it with red repair tape. The intermediate appellate court held that the taillight was in proper working condition in that it provided proper warning and safety measures to other motorists and thus was in “good condition.” Thus, it held that the officer did not have probable cause for the stop. As such, the stop would have been illegal and any evidence of criminal activity uncovered during the stop would probably be suppressed.

]]> In this case, the Court will basically be deciding whether or not police officers can initiate traffic stops based on the fact that a motorist’s car is not in absolutely perfect condition. Since the law requires that the car be in “good condition,” which essentially means that it can be driven safely on the roadway, it would be a severe limitation of drivers’ privacy rights to hold that law enforcement officers can pull a vehicle over any time it is not in perfect condition.

After all, what vehicle is ever in perfect condition once it leaves the dealership and acquires wear on the tires and brakes? Such a car would not be in perfect condition for driving, but it certainly should not be subjected to a traffic stop since it is still safe for driving with regard to both the driver and other motorists. It would be a surprise if the Court overturns the intermediate court of appeals here, but if it should happen, motorists should be prepared to be stopped with greater frequency on Tennessee’s roadways.

Source: State v. Brotherton, 34 TAM 24-24 (Tenn.Cr.App. 2009), appeal granted 9/28/09.

More on the Upcoming Tennessee Supreme Court Docket

2010-02-22T19:40:18Z

When the Tennessee Supreme Court hears a criminal case, it has the ability to redefine, reinterpret or otherwise affect an area of Tennessee criminal law in a substantial way. Thus every case that comes before the Court is worthy of discussion since it may have a lasting impact on the criminal framework. One such case, State v. Brown, will consider two separate issues that are fairly common in the criminal context.

The first issue is that of lesser included offenses. A lesser included offense is an offense of which all the elements are included in a greater offense, but the greater offense has additional or different elements and a more severe penalty (with rare exceptions). In this case, the defendant contended that the trial court erred by failing to instruct the jury as to criminally negligent homicide when the defendant was charged with felony murder. Instruction as to lesser included offenses can be key for defendants in cases like this, primarily because it informs the jury that there are lesser offenses for which the defendant can be convicted. The jury may not be willing to let a defendant walk away without facing some sort of punishment in some situations, so they may be tempted to convict the defendant of a more serious offense than is actually fair in order to prevent the defendant from walking away scot-free. The defendant will try to convince the Tennessee Supreme Court that the trial court erred in failing to let the jury know that a lesser included offense was available rather than just the felony murder charge he was facing.

]]> The second issue the court will address is the issue of harmless error. Simply put, when a court commits any sort of error in a criminal trial, that error will only warrant a reversal or vacation of the conviction if the error actually could have or did make a difference in the case. In this case, the intermediate appellate court ruled that the failure to instruct the jury on the lesser included offense was harmless error because all of the evidence received contradicted the defendant’s story of how the victim was killed. Basically, the court said that the failure to instruct the jury as to the limiting instruction did not really make any difference in the case.

The outcome of this case should be interesting and could have repercussions for the way harmless error and lesser included offenses operate in criminal trials, meaning it is one that both Knoxville defense attorneys and Tennesseans as a whole should keep an eye on.