Tennessee Criminal Lawyer Blog

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.

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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.

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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.”

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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.

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.

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DNA evidence is a critical component of some criminal investigations, and it is an essential component of most criminal investigations that take place on many popular network television shows. The acquisition of DNA evidence is often key in many criminal cases because the composition of the DNA in an individual is a combination of the DNA of that individual’s parents, and, unless that person has an identical twin, his or her DNA is unique. Thus, DNA evidence has been used not only to prove that persons were guilty of crimes but also that many individuals who were wrongly convicted in the past were actually innocent all along. Despite the advances DNA technology has offered to the world of criminal investigation, it is often not a foolproof method for determining whether someone committed a crime. The Tennessee Supreme Court has a case on its upcoming docket in which it will hear an issue regarding the strength of DNA evidence.

In the upcoming case styled State v. Lewter, the Tennessee Supreme Court will decide if the evidence was sufficient to convict the defendant of burglary and theft where the only evidence linking the defendant to the offense was a shirt that was left behind which contained skin cells matching the defendant’s DNA. The defendant was obviously convicted of the offenses based on this evidence at the trial court level or he would not have appealed. On appeal, the intermediate appellate court ruled that DNA is not like a fingerprint or blood sample in that its presence alone cannot prove that the defendant was present at the time of the theft and overturned the conviction. The Tennessee Court of Criminal Appeals agreed, and the case now comes before the state’s highest court.

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The concept of lesser included offenses is one that can at times prove confusing to defendants, attorneys, and, as the case of State v. Wellman shows, the courts. In Wellman, the defendant was arrested after an anonymous phone call informed police that the defendant was selling drugs in the Nashville area. The police investigated and arrested the defendant, and a search of his vehicle revealed a handgun in the automobile. Based on this finding the state charged him with, among other things, felony possession of a handgun, a Class E Felony in Tennessee. After a trial, he was convicted of, among other things, attempted felony possession of a handgun, a Class A misdemeanor.

On appeal, the Court of Criminal Appeals ruled that the evidence was insufficient to convict the defendant of attempted felony possession of a handgun. The court held that an essential element of the attempt offense was that the defendant had previously been convicted of “a felony involving the use or attempted use of force, violence, or a deadly weapon.” The Court found that the prosecution failed to prove this element, meaning that it was not a felony for the defendant to possess a handgun and thus he could not be convicted of the attempt offense of which he had been convicted in the trial court. Furthermore, the Court of Appeals held that there is no lesser included offense for attempted possession of a handgun, because the only possible lesser included offense contained an additional element. Where an offense contains an extra essential element than a more serious offense, the former cannot be a lesser included offense of the latter.

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The criminal process is set up so that defendants have a multitude of options at their disposal for making sure they are able to obtain a fair sentence. One of these options is the right to appeal, and defendants can appeal on a wide range of subjects, one of which is that the defendant received a sentence that was excessive. This will usually be based on the theory that the sentencing court did not take the proper considerations into account before sentencing. State v. Pedigo, a recent case heard by the Tennessee Court of Criminal Appeals, serves to illustrate this issue.

In Pedigo, the defendant pled guilty to aggravated burglary and theft over $1,000. He was sentenced as a Range III offender to 15 years in jail. He appealed, arguing that the sentence was excessive. During the sentencing phase, the trial court stated that it had considered mitigating factors but did not state which factors it had considered or how much weight each was given. Likewise, the trial court sought to apply several enhancement factors, but the trial court only discussed one of them. The trial court also failed to state the process by which it balanced the mitigating and enhancement factors in determining the sentence. The Court of Criminal Appeals found that due to these factors, the record did not properly establish that the trial court had considered all of the relevant sentencing principles before sentencing the defendant. As a result, the Court of Criminal Appeals ordered that the case be sent back down to the trial court for a more specific sentencing procedure in which the trial court would properly identify all of the relevant mitigating and enhancement factors, discuss the facts supporting each, and outline how the factors were balanced in determining the sentence.

This case demonstrates that defendants can appeal if they think that they were excessively sentenced due to a flaw in the sentencing process. The good news is that if this appeal is successful, the defendant’s case will be re-evaluated, and he or she may receive a new sentence. The bad news is that the new sentence may be a larger sentence than the first one, and if it is properly reached it may not be overturned. Thus, defendants should always seek out the advice of an experienced East TN criminal defense attorney before deciding whether or not to appeal and on what grounds.

Source: (State v. Pedigo, 35 TAM 5-27, 12/2/09, Nashville, Wedemeyer, 6 pages.)

Criminal defendants, for various reasons, are often unhappy with the way at least one issue was handled by the court at trial, especially if the trial results in a conviction accompanied by a lengthy prison sentence. Luckily for criminal defendants they have the right to appeal the trial court’s decision as long as they comply with certain procedural requirements and avoid certain pitfalls that cause them to lose that right. One such pitfall is waiving the right to appeal. A recent case heard by the Tennessee Court of Criminal Appeals illustrates how this works.

The defendant in this case pleaded guilty to obtaining a controlled substance by forgery and received a sentence of three years. The defendant felt that the sentence was too harsh, so he wished to appeal. Unfortunately for him, the judge had presented him with a waiver of his right to appeal at the conclusion of the sentencing hearing, and the defendant was placed under oath, freely and voluntarily asserted that he wished to waive his right to appeal, and signed a written waiver confirming that decision. By waiving his right to appeal, the defendant necessarily waived his right to appeal the sentencing decision reached by the trial court. Thus, the Tennessee Court of Criminal Appeals was unable to consider his contention that the sentence was too harsh.

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