Tennessee Criminal Lawyer Blog

Every week, many Tennesseans all across the state are charged with drug or other offenses as a result of evidence uncovered by law enforcement officials pursuant to a routine traffic stop. In many such stops, the defendants feel like they have to allow the officers to search their car upon request, which simply isn’t true. Absent such consent, a search can only be conducted if the stop itself was valid (the officer must have reasonable suspicion to make the stop) and the officer has probable cause to conduct the search during the stop. Where a vehicle search is conducted and evidence of a crime is found, a defendant can face serious charges. The ability to prove that the stop was invalid can lead to suppression of the evidence and possibly result in the charges against the defendant being dropped.

Continue reading "Challenging Vehicle Searches Resulting From Traffic Stops" »

Unless you are Santa Claus, people probably aren’t going to take kindly to finding you stuck in their chimney. In fact, doing so will probably earn you a host of criminal charges just as it has for twenty-two year-old William Hussey of Chapel Hill, North Carolina who was found stuck in a chimney in South Knoxville early last Friday morning. There is no indication of exactly why the man decided to try to go through the chimney at around midnight on Friday but he apparently got stuck and rescue workers had to use rope to hoist him to safety. They also found his vehicle in the driveway of the home with seven cans of gasoline sitting inside. There is no word of what his plans were for the gasoline. He is charged with public intoxication, vandalism, and aggravated trespassing. Hussey told officers that it was not his intention to hurt anyone and that he was having mental issues.

Continue reading "Knoxville Man Found Stuck in Chimney" »

A major theme underlying Tennessee’s criminal code is that it is designed to protect Tennesseans from harm, especially serious harm such as death or serious bodily injury. For example, Tennessee’s criminal code would be doing Tennesseans a disservice if it were to punish them with a criminal charge, such as assault, for taking an action that ordinarily may be a criminal act but in the instant case actually operates to protect someone from even greater harm. For example, it would ordinarily be a crime to shove someone out a window, but such an act may not be criminal if it was done in order to get that person out of a burning house. Thus, Tennessee law contains the doctrine of necessity in order to distinguish criminal acts from those helpful acts society wants to encourage.

Continue reading "The Defense of Necessity" »

Defendants in criminal cases often find themselves in the unfortunate situation of being tried for multiple offenses in the same trial. This may or may not be appropriate depending on the circumstances of the case, but being on trial for several offenses poses some substantial risks to the defendant. The primary risk that the defendant faces is being convicted for one or more offenses based on evidence presented for the purpose of proving other offenses. For example, if the defendant is simultaneously on trial for arson and kidnapping, the jury may hear disturbing evidence related to the kidnapping and become prejudiced against the defendant, thereby jeopardizing his chance at a fair trial for the offense of arson. Judges are very careful to instruct juries under such circumstances to consider each offense separately in light of the proof, but a risk such as the one described above is not one that a defendant wants to take unless he or she absolutely has to.

Continue reading "Severance" »

Yesterday's blog focused on the inchoate offense of attempt, which is very similar in a lot of ways to the focus of today's blog: solicitation. Solicitation is defined in the Tennessee Code as using basically any form of communication (written, oral, sign language, Morse code, etc.) to command, hire, or otherwise enlist someone to commit a criminal offense. Like assault, the offense of solicitation is complete as soon as the act of solicitation is completed; it makes no difference that the solicited party actually does or does not follow through with the completion of the crime except that completion of the offense may lead to more serious charges for all responsible parties under the doctrine of merger. Also like assault, it is no defense to solicitation that the offense could not be completed because the soliciting party was mistaken about the facts and could never have completed the intended offense. It is also no defense that the person who is solicited to commit the offense lacks the capacity or ability to carry out the offense as long as the soliciting party believes that the person is so capable.

The good news for Tennesseans charged with solicitation is that a few very effective defenses to the charge do exist. They are much the same as those described in yesterday's blog as defenses to an attempt charge. The defendant's best hope at beating a solicitation charge is to prove that he lacks the requisite mental state for the intended offense as required by the statute or that he completely abandoned the commission of the offense and successfully prevented it from occurring. Defendants who wish to pursue such defense strategies would be wise to consult an experienced criminal defense attorney in order to put forth the best possible legal defense.

Tennessee recognizes three different types of inchoate (basically another word for preparatory) offenses which allow a person to be charged with a crime even though the crime was not committed.

The first type of inchoate offense recognized by Tennessee is an "attempt" offense. Attempt basically occurs when a person has the requisite mental state required for a crime (such as intentional, knowing, or any other mental state set out in the statute describing the attempted offense) and "attempts" to commit the crime. This can happen where a person tries to commit the offense but is caught before he or she can carry it out, where a person tries to commit the offense but is mistaken about the facts (thinking a certain poison will kill someone but it turns out to be harmless), or where a person does everything he or she thinks necessary to commit the crime but is unsuccessful (picking up someone's suitcase thought to have $100,000 in it but which is actually empty). Attempt is graded one offense lower than the offense actually attempted.

A person can defend an attempt charge by proving that the person did not have the requisite mental intent to commit the offense or by showing that the person abandoned the offense and prevented its completion (renunciation). Such defenses can be hard to prove however, and consulting a skilled criminal defense attorney can greatly increase the effectiveness of these defenses and provide the defendant with the best opportunity to avoid conviction.

Voluntary intoxication occupies a unique position with regard to criminal law in Tennessee because it does not provide an actual defense to the commission of any crime but it can serve to negate the specific intent required by a criminal statute and thereby enable the defendant to avoid conviction. Some criminal offenses require that a specific intent on the part of the defendant exist in order for the defendant to be found guilty of the offense. First-degree murder, for example, requires that the killing of another individual be premeditated and intentional. Where a defendant is intoxicated, he or she may lack the ability to deliberate with regard to the offense (premeditate the killing) and thus may be able to avoid conviction under the first-degree murder statute.

Where an offense does not require a specific intent, however, voluntary intoxication will be no defense. For example, criminally negligent homicide in Tennessee does not require that the defendant have acted with any specific intent to kill but rather just that the defendant acted with a necessary level of negligence which resulted in the death of another individual. Voluntary intoxication will be no defense to a criminally negligent homicide charge because there is no specific mental state to negate and the intoxication may even be used at trial to prove that the defendant was indeed criminally negligent due to the intoxication. It is also noteworthy that voluntary intoxication is not a defense to a strict liability offense such as speeding, where the intent of the defendant is irrelevant.

Many such principles and defendants apply in certain situations but not in others, and it can be crucial for a defendant to know all of her available defenses and how the elements of each crime relate to her specific case before proceeding to trial. Thus, it is important to rely on an experienced criminal defense attorney who is familiar with Tennessee’s criminal code and can assist the defendant in presenting the most effective case possible.

A New Jersey woman is being charged with filing a false report after police say that she made up a story about being the victim of a carjacking to cover up the fact that she crashed her car while having sex. The woman and her accomplice who was driving the car were apparently having an intimate moment of sorts when the car ran off the road and crashed into a tree. According to police officers, the woman then tried to set the car on fire to cover up the accident. When that did not work, she apparently contacted police and told them a fairly elaborate story about being the victim of a carjacking at gunpoint and said that the injury left her with several injuries including a broken arm. After the woman was subjected to further questioning, she finally admitted the truth and was charged with filing a false report.

In Tennessee, filing a false report is a felony and can earn the offender years worth of jail time, so presenting a strong defense to such charges is critical. A criminal defendant charged with filing a false report is not going to be able to deny that the report was made altogether, so a defendant’s best hope for avoiding or reducing jail time may be to rely on the existence of mitigating factors if the defendant was in some sort of altered mental state (not due to the voluntary use of intoxicants) or was under some sort of duress that reduced the defendant’s mental culpability for filing the report. For example, if the woman in this scenario had an abusive husband and lied to the police out of fear that her husband would uncover her illicit affair if he knew the truth, then that situation, though not serving as a legal defense to the crime, could serve to lessen her culpability for the offense and thus to reduce her sentence.

Source: http://news.findlaw.com/ap/other/1110/07-15-2010/20100715055004_09.html

Evidence is what it is all about in criminal cases. What a criminal case basically boils down to is whether the state or federal government can introduce enough evidence in an effective manner to convince a jury that the defendant is guilty beyond a reasonable doubt of committing every element of the offense charged. Thus, the admission or exclusion of one piece of evidence, particularly if it is something of great importance like security-camera video or a murder weapon, can dictate the outcome of the entire trial.

There are basically two criteria for determining whether or not evidence will be admitted into the record for the jury’s consideration at trial: (1) relevance and (2) admissibility. Both the federal and Tennessee rules of evidence require that both of these elements be satisfied before evidence can be used at trial. However, relevant evidence will be admissible unless some other evidentiary rule states otherwise. This blog focuses on the first of these two criteria.

Federal and state rules of evidence both have an extremely broad definition of relevance. This means that evidence that tends to shed any light whatsoever on any fact material to the case will be considered relevant as long as its prejudicial effect does not outweigh its probative value. The last part of that sentence essentially means that the evidence is useful enough in deciding the issue at trial to outweigh the negative impact it will have on the jury’s feelings toward a defendant. Very few pieces of relevant evidence are held to be too prejudicial under this standard.

The fact that almost any useful evidence is relevant evidence can sometimes make it tough on defendants who are trying to exclude such evidence at trial. Thus, it is essential that the defendant is represented by competent criminal defense counsel who can put forth every effort to make sure irrelevant and prejudicial evidence is excluded when appropriate. A skilled Knoxville criminal defense attorney will have a thorough knowledge of the evidentiary rules and how to use them to a client’s advantage.

If you have ever watched one of the many legal dramas that pervade cable television, you have undoubtedly heard a lawyer vehemently declare the phrase “Your honor, I object. That’s hearsay!” The concept seems simple enough: if you hear the witness say something along the lines of “he said” or “he told me” then you stand up, object to hearsay, have your objection sustained and then sit down triumphantly. Unfortunately, it rarely, if ever, works this way in the courtrooms of the real world.

Hearsay, which seems simple enough at first glance, is actually a complicated concept. The entire purpose of classifying certain evidence as hearsay and thus excluding it from the courtroom is that some information is not reliable enough to be used in court. This is often the case because allowing certain hearsay statements to come in would make those statements part of the record without providing an opportunity to cross-examine the person who made the statement with regard to the conditions surrounding the statement and whether or not it is indeed true.

Hearsay is broadly defined as any statement made out of court offered in court to prove the truth of the matter asserted. For example, the phrase “he said she ate a hot dog on Tuesday” would be hearsay if it was offered to prove that she did in fact eat a hot dog on Tuesday. If it was offered for any other relevant purpose or fell under one of the many hearsay exceptions, then the statement would not be classified as hearsay and might be admissible. Hearsay exceptions exist because although some evidence technically constitutes hearsay under the definition provided it is reliable enough to be used as part of the record in court. Often hearsay exceptions are based on the principle that certain people in certain conditions would not tell a lie or would keep accurate records. The hearsay rules tend to differ in a number of areas in federal courts and figuring out how to use them to your advantage is key to properly conducting a civil or criminal trial. Using an experienced Tennessee criminal defense attorney can let a defendant rest securely in the knowledge that his counsel has a thorough understanding of these rules and will use them to the client’s benefit.

Evidentiary rules are one of the more difficult aspects of law practice to master. In fact, case after case has proven that when defendants decide to go ahead with a case pro se (representing themselves), evidentiary issues present such defendants the most problems and seems to be where they make the most mistakes at trial. Our next few blogs will pick out a few key evidentiary issues in order to show how perplexing they can be and why a defendant may want to hire an experienced criminal defense attorney to represent them at trial so they do not have to bother themselves with trying to master such topics.

One confusing area of evidence is character evidence. In this blog, we will only discuss character evidence as it pertains to criminal cases since this is in fact a criminal law blog. In criminal cases, the most important rule to remember regarding character evidence is that such evidence cannot be used to prove that defendant engaged in conduct in conformity therewith. Huh? This simply means that if the defendant is on trial for murder, evidence cannot be presented that purports to prove that the defendant has a character for violence and thus must have committed the crime in question. The concern with character evidence then, is that the jury will view the defendant in a poor light and convict him based on their opinion of the defendant rather than the strength of the actual relevant evidence presented.

There is an exception regarding the use of character evidence that basically allows the defendant’s character to be attacked if the defendant first tries to present evidence that he has good character (called “opening the door”) or attacks the character of the victim or a witness. Thus, the decision that the defendant must make regarding whether to open the door is a critical one that will greatly affect which evidence will be admitted at trial and which evidence will be kept out. The defendant would be wise to have skilled legal counsel assisting with the case in order to correctly weigh the pros and cons of such a decision.

The beauty of the American criminal justice system is that it allows a defendant to be presumed innocent until he is proven guilty, and that proof must establish that the defendant is guilty beyond a reasonable doubt. This also means that the burden is on the prosecution (almost always the state or federal government) to prove that the defendant is guilty rather than being placed on the defendant to prove that he is innocent. The concept of reasonable doubt has been defined in many ways by many states, but it is sufficient to say that if a reasonable person would harbor a doubt about the defendant’s guilt in that particular case, the defendant should not be convicted. This means that criminal cases do not require the jurors to be 100% certain that the defendant is guilty but they must be pretty close to that level of certainty to harbor no reasonable doubts at all.

In American courts, the idea that defendants must be proven guilty beyond a reasonable doubt extends to every element of a criminal offense, meaning that the prosecution must prove beyond a reasonable doubt that the defendant had the requisite criminal intent and knowledge if it is required, that the defendant committed whatever acts are prohibited by that statute, and that the defendant caused the harm alleged in that statute. Many criminal cases are decided favorably for defendants based simply on the fact that the state cannot prove one or more particular elements of the crime beyond a reasonable doubt. An experienced criminal defense attorney can examine all the facts and circumstances of the case, decide which element(s) the state cannot prove beyond a reasonable doubt, and make the state’s inability to prove that fact apparent to the court and jury which greatly increases a defendant’s chance of acquittal or dismissal.

Let it be known that neighbors Darren Wilkerson and Bruce Willard of Bartow, Florida are serious about lawn care. So serious, in fact, that when Mr. Wilkerson took it upon himself to trim Mr. Willard’s hedges, the situation turned into a no-holds barred fiasco that threatened the life of both men involved. Apparently the two neighbors had quarreled over lawn care in the past, and when Mr. Willard saw that his hedges were being trimmed by Mr. Wilkerson without permission, he armed himself (apparently believing he had reason to fear for his safety) and went to confront Mr. Wilkerson. Mr. Wilkerson reportedly responded by waving his weed-eater at Mr. Willard’s face, which prompted Mr. Willard to shoot Mr. Wilkerson several times in apparent self-defense. Mr. Wilkerson was taken to the hospital for his gunshot wounds, and, if that wasn’t bad enough, was also arrested for aggravated assault upon being released from treatment. At this time, there is no report of Mr. Willard facing any charges.

This situation helps to illustrate how the use of deadly force works in Tennessee and in most other states. The principle of self-defense allows a person to use deadly force to defend themselves when appropriate, but the use of such force is only appropriate when its use is necessary to prevent death or serious bodily injury. Clearly someone coming at your face with a weed-eater would qualify as a situation in which the threat of serious bodily injury is present. Had Mr. Wilkerson assaulted Mr. Willard with a water hose, Mr. Willard could not have reasonably been in fear of death or serious bodily injury and thus his use of the firearm would not have been justified. Had the weapon been something like a garden hoe the situation would have been much murkier. Defendants often find themselves in situations where they have used deadly force and been charged with some sort of assault or homicide offense. In such situations, the Defendant will have to prove that he or she was in fear of death or serious bodily injury at the time deadly force was used in order to avoid jail time. Using a competent Tennessee criminal defense attorney can be extremely useful in such situations, as an attorney can make sure such an argument is presented appropriately and effectively.

Source: http://www.truecrimereport.com/2010/07/darren_wilkerson_shot_after_th.php

Misdemeanors are offenses that are punishable by less than a year of incarceration. Misdemeanors comprise the least serious of the criminal offenses and consequently are committed more frequently than felonies, which comprise more serious criminal conduct which a smaller number of people seem willing to engage in. Misdemeanors in Tennessee range from Class C misdemeanors, such as using a radar jamming device in your car, which carry a maximum penalty of thirty days in jail to Class A misdemeanors, such as reckless endangerment, which carry a maximum penalty of eleven months and twenty-nine days in jail.

Misdemeanors differ from felonies in other ways besides merely the severity of the punishment. One significant way is the way in which arrests can be made for misdemeanors as opposed to felonies. For both types of offense, a police officer may arrest a suspect if authorized by statute or if the officer has a properly-obtained arrest warrant. Where the two differ, however, is that where the officer does not have a warrant or statutory authorization she can only arrest a suspect for a misdemeanor where the violation occurred in her presence or the offense involved domestic violence.

This requirement gives an advantage to defendants who may want to contest their misdemeanor conviction in court. If the defendant can prove that the officer did not actually see the defendant commit the misdemeanor or, for some types of misdemeanors, if the officer does not show up to court on the date the case is heard, the defendant may be able to avoid conviction for the offense altogether. Unfortunately misdemeanors do carry the risk of jail time, so Tennesseans would be wise not to try to contest these issues on their own. Use of a skilled criminal defense attorney can enable the defendant to present the strongest possible defense against a misdemeanor charge and work for the most lenient punishment possible.

The insanity defense is perhaps the most famous defense in all of criminal law. It is frequently used in capital murder cases and with good reason. Jurors are more willing to buy into an insanity defense if the crime for which the defendant was charged seems like a crime no sane or rational person could commit (for example, an especially heinous murder or the murder of a young child). Also, it may quite simply be the only defense that is available to a defendant who seems to have been caught red-handed and has a mountain of evidence piled up against him.

The insanity defense is also a tough defense to raise successfully. Tennessee law places a heavy burden on defendants by requiring them to prove by clear and convincing evidence that they were in such a state of mind that they did not know the nature and quality of the acts they committed or did not know that their actions were wrong. This is made even tougher by Tennessee’s requirement that the defendant must prove that he or she was insane at the time of the offense in question, meaning a prior or subsequent history of mental defect may be irrelevant for all intents and purposes if the defendant cannot prove his or her state of mind at the time of the offense.

While these legal hurdles are tough, there is also one huge practical hurdle to raising an insanity defense: juries are skeptical of the defense because it is used so often. Legal news outlets and television shows make it seem as if every person who is charged with a serious crime in the United States falls back on the insanity defense, and in truth a lot of defendants do. Therefore jurors tend to think that it is a type of catch-all defense that guilty people generally use as a last resort. This is not the case, but it does lead to a skewed perception of the defense of insanity. This does not mean, however, that an insanity defense is not the appropriate course of action for a particular defendant given the facts and circumstances of his or her case. What it does mean is that defendants should hire skilled criminal defense counsel who can expertly present the defense to the jury in order to maximize its effectiveness.

Effective consent is a term used by Tennessee law that allows a person who is charged with causing or threatening to cause bodily injury to another person to use as a defense the fact that the alleged victim effectively consented to the conduct. This defense is allowable under Tennessee law where the conduct in question did not actually cause or pose the risk of serious bodily injury or where the conduct and the harm involved were reasonably foreseeable hazards of any kind of planned or arranged activity not forbidden by law. For example, if Steve decides to play tackle football with his friends he can’t later go to the police and report that his friend assaulted him by tackling him and causing him injury. This is so because under the principle of effective consent, being tackled and injured as a result is a reasonably foreseeable consequence of playing tackle football. The situation might be different if Steve’s friend committed some physical act against him that was outside of the scope of the game, but if the injury and conduct naturally flowed from the game itself, the person who injured Steve could not be charged with assault, reckless endangerment, or any such crimes under Tennessee Law.

The principle of effective consent thus helps to ensure that people aren’t charged with crimes for engaging in what is essentially legal, although sometimes dangerous, conduct. Fairness is a basic principle that underlies the American judicial system and there would be nothing fair about allowing a person to consent to facing the risk of injury and then punishing the other participants when that person is in fact injured. Unfortunately, however, many Tennesseans find themselves in just such a situation when someone with whom they have participated in a planned or group activity is injured and seeks to hold them accountable. As explained above, assault or any other charges would be wrongful in this situation. Persons who are facing wrongful charges should contact an experienced criminal defense attorney who can assist them in contesting the charges and avoiding punishment.

Criminal trials are often long and complicated and present many confusing issues for defendant, lawyer, and judge alike. It is unavoidable, then, that mistakes will be made at some point along the way with regard to how the trial is conducted, which evidence is admitted and how it is used, or at various other stages of the trial. It is no surprise, then, that a defendant who is found guilty of a crime will often seek to be granted a new trial on the basis that such error prejudiced the defendant at trial and skewed the outcome of the case. Many states, Tennessee included, will only grant a new trial under these circumstances if the error was “harmful” to the defendant. Harmless error, which is basically error that does not negatively impact the defendant in a substantial way, is not a sufficient basis for a new trial in Tennessee. Error that is sufficiently harmful to the defendant as to warrant a new trial is known as “reversible” error.

Reviewing courts in Tennessee basically look at five factors to see whether or not an error is reversible: (1) The error complained of viewed in context and in light of the facts and circumstances of the case; (2) the curative measures undertaken by the court and the prosecution; (3) the intent of the prosecution in undertaking the improper conduct; (4) the total effect of the improper conduct and any other errors in the record of the trial; and (5) the relative strength or weakness of the defendant's case. These five factors essentially work together to measure how severe an error occurred at the trial level and how harmful that error was to the defendant. When an error has occurred at the trial stage, it is imperative that a defendant be represented on appeal by a competent criminal defense attorney who can argue these five factors in the defendant’s favor and then expertly represent the defendant should a new trial be granted. This may enable the defendant to avoid the sentence that was handed down at the first trial or possibly conviction altogether.

Source: State v. Francis, 669 S.W.2d 85 (Tenn. 1984)

Probation is one of a few types of alternative sentencing that is used by the Tennessee Courts when sentencing defendants who have been found guilty of, or plead guilty to, a crime. Simply put, alternative sentences are used when the defendant is able to convince the court that he or she does not deserve to have to spend the entirety of the defendant’s sentence in confinement. This is usually due to the fact that the defendant is a first-time offender or a non-violent offender, or the circumstances of the offense warrant lenient treatment for the defendant. If a defendant can show the court that alternative sentencing is warranted, the defendant may be ordered to do community corrections work or serve all or a part of his or her sentence on probation as an alternative to being incarcerated. Such a sentence is very favorable to a defendant, but does not allow the defendant complete freedom.

Whenever a defendant is placed on probation or community corrections, the court imposes a number of restrictions on the defendant. Failing to abide by those restrictions constitutes a violation of probation. For example, a defendant is almost always prohibited from using illegal drugs or carrying a firearm as a term of probation. If the defendant is found to have engaged in either course of conduct while on probation, he or she has violated the terms of probation and the court will revoke the probation. When this happens, the usual course of conduct for the court is to require the defendant to serve out the remainder of his or her sentence in confinement. This can be disastrous for a defendant if, for example, she is in the first year of serving out an eight year probation sentence.

As discussed above, violating probation can have dire consequences. Therefore, persons who are alleged to have violated probation should seek experienced legal counsel who can assist them in proving to the court that they have not done so. A skilled criminal defense attorney can not only assist the defendant as he or she serves out a probationary sentence but also in contesting an alleged violation, enabling the defendant to avoid confinement if at all possible.

Being subjected to a police search is a harrowing experience. Even if the person who is subjected to the search is completely innocent, it is nerve-racking to have someone sifting through your possessions and looking for any evidence they can find that may lead to your arrest. This is particularly true if the police have already obtained a search warrant, because that generally means that law enforcement was able to provide a magistrate with probable cause to believe that evidence of illegal activity would be found in the home or area that is the subject of the search.

The Constitution provides a variety of different protections for persons who are subjected to searches. In fact, the invasion of a person’s right to privacy in their home has been designated by the United States Supreme Court as the primary evil that the Fourth Amendment is meant to prevent. One way in which this protection takes shape is through the requirement that a search warrant describe with particularity the things or evidence sought to be seized. This means that a search warrant can’t just authorize a general search of a place or dwelling; rather, it must describe with reasonable particularity what those who are performing the search are looking for. This is supposed to prevent those conducting the search from using a general warrant and ransacking the entire house or business in order to find any piece of incriminating evidence that they can. Whether it works this way in reality is sometimes a different story as many motions to suppress are made every year on the basis that the law enforcement agency conducting the search exceeded the scope of the search.

When law enforcement officials overstep their bounds by exceeding the limits of a search warrant, the defendants against whom evidence was gathered may be able to get the evidence suppressed depending on the circumstances surrounding the search and whether or not law enforcement officials were acting in bad faith when they exceeded the search parameters. The likelihood of success of such an argument would depend heavily on comparing the facts of the defendant’s case to those in previous search warrant cases in order to see if the actions taken by law enforcement warrant exclusion or inclusion of the evidence. This can be a complex process, one which would be best-handled by an experienced criminal defense attorney who has the knowledge and expertise to advance the defendant’s best argument to the court.

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/

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.

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.

Continue reading "Search Warrants: "Open Fields" Doctrine" »

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.

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.”

Continue reading "Request for an Attorney Must be Unequivocal" »

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.

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.

Continue reading "State Supreme Court to Look at Traffic Stop Issue" »

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.

Continue reading "More on the Upcoming Tennessee Supreme Court Docket" »

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.

Continue reading "DNA Evidence Issue to be Reviewed" »

The Tennessee Supreme Court is set to hear a case that could significantly expand the scope of the crime of theft in the state. In a case styled State v. Butler, the defendants are charged with theft of services for allegedly underreporting their income in order to obtain cheaper public housing. The trial court dismissed the indictment based on the fact that the public housing obtained by the defendants does not fall within the definition of “services” under the theft of services statute.

The Tennessee Code Annotated defines “services” for the purposes of theft of services in T.C.A. section 39-11-106(35). The term “services”:
“includes labor, skill, professional service, transportation, telephone, mail, gas, electricity, steam, water, cable television or other public services, accommodations in hotels, restaurants or elsewhere, admissions to exhibitions, use of vehicles or other movable property, and any other activity or product considered in the ordinary course of business to be a service, regardless of whether it is listed in this subdivision (35) or a specific statute exists covering the same or similar conduct”

Continue reading "State's Highest Court to Hear Theft of Services Case" »

It seems schools these days are more dangerous than ever before, with stories of school-related violence constantly finding a place on the news and in the headlines. Such violence comes in many different forms, whether it be by a student or a student’s parent against a teacher, by a teacher against a student or another teacher, or often even by a student against another student. Many states have laws that specifically target school-related violence, and Tennessee is one of them. One specific law Tennessee has enacted with this goal in mind can be found in T.C.A. section 39-13-114 which concerns communicating a threat concerning a school employee.

The above-referenced statute applies to basically any institution that could be considered a “school,” including colleges and universities. It essentially has four elements:

• “ (b) A person commits the offense of communicating a threat concerning a school employee if:
  
  1. The person communicates to another a threat to cause the death of or serious bodily injury to a school employee and the threat is directly related to the employee's scope of employment;
  
  
  2. The threat involves the use of a firearm or other deadly weapon;
  
  
  3. The person to whom the threat is made reasonably believes that the person making the threat intends to carry out the threat; and
  
  
  4. The person making the threat intentionally engages in conduct that constitutes a substantial step in the commission of the threatened act and the threatened act and the substantial step when taken together:
  
  
  • (A) Are corroborative of the person's intent to commit the threatened act; and
  
  
  • (B) Occur close enough in time to evidence an intent and ability to commit the threatened act”

Continue reading "Communicating a Threat Concerning a School Employee" »

One of the most difficult things about the practice of law is that the law is constantly evolving. Even laws that have been worded exactly the same way for hundreds of years are always being reinterpreted and laws that seem to have plain meaning can be a source of controversy when they are applied to complicated or novel factual scenarios. Some such controversies make their way to the Tennessee Supreme Court, which has several notable criminal cases on its upcoming docket.

One case, styled State v. Swift presents an interesting fact situation that calls for an interpretation of Tennessee’s aggravated robbery statute. The issue presented in this case is whether the evidence is sufficient to justify convicting the defendant of aggravated robbery where the violence or intimidation occurred after the taking that constituted the robbery was complete. If the evidence is insufficient, the defendant seems likely to be convicted of theft and aggravated assault, which could potentially result in a much lower sentence for the defendant than would the aggravated robbery charge.

Continue reading "Tennessee Supreme Court Has Several Criminal Cases On the Docket" »

A Pennsylvania prosecutor is reportedly struggling with how to charge a boy suspected of murdering his pregnant stepmother when he was eleven. The woman was apparently shot in her own home last February, and investigators began to suspect the boy of being shooter when their investigation revealed no signs of forced entry or burglary. Authorities reportedly believe that the boy was jealous of his stepmother and the other children that had moved into the house with her, as well as the child that was on the way. Detectives apparently found gunshot residue on the boy’s clothing and his shotgun seemed to have been recently fired and looked to have burned a hole in a blanket that was covering it. The boy’s family, however, disputes these conclusions and says that his clothes would likely have gunshot residue anyway because he hunted frequently.

The boy has been in juvenile lockup for nearly a year while the prosecutor tries to decide how to charge him. Pennsylvania law apparently forces the prosecutor to either charge the boy as an adult or not charge him at all. Tennessee criminal law is much different in that it gives the prosecutor more leeway as to how to charge the suspect.

Continue reading "Twelve Year-Old May Be Tried As An Adult In Murder Case" »

One of the great things about baseball is that you can play it anywhere. All you need is a bat and something to use it on and you can play baseball in some form. A good example of this is provided by a Georgia man who walked into Lilburn, Georgia Wal-Mart on Wednesday, grabbed a baseball bat and smashed up twenty-nine flat screen televisions. He was reportedly arrested soon after he had finished teeing off on the televisions and authorities are still trying to discover his motive. The televisions are reportedly valued at over $22,000.

Under Tennessee law, the man would most likely be charged with vandalism, which can be charged against “[a]ny person who knowingly causes damage to or the destruction of any real or personal property of another or of the state, the United States, any county, city, or town knowing that the person does not have the owner's effective consent.” The destruction of Wal-Mart’s televisions with Wal-Mart’s baseball seems to clearly qualify.

Under Tennessee’s vandalism statute, vandalism is punished like theft. This basically means that the value of the property is determined according to either the fair market value of the property, or, if the fair market value cannot be determined, the cost of replacing the property. Once the value of the property is determined, the amount of value of such property that was lost due to damage or destruction of the property is determined. The offense is then graded according to the amount of property damage that occurred under the same grading system as theft. This is found in T.C.A. section 39-14-105 and classifies theft offenses according to the value of the property obtained, with the harshest possible penalty being a Class B felony for thefts over $60,000. In the case discussed above, the man would likely be looking at a Class C felony because the property’s value is between $10,000 and $60,000. A Class C felony is punishable by up to fifteen years in prison.

Source: http://www.ledger-enquirer.com/news/breaking_news/story/1008898.html

Intoxication often leads individuals to make less than optimal decisions, which is exactly what an Indiana man did early Sunday morning when he decided it might be a good idea to try to steal a backhoe. The man apparently climbed over a fence to get to the backhoe and then crashed the backhoe through the fence to make his escape. A host of witnesses reportedly saw the man try to make his escape and called the police, with one even following him down the highway while talking to police on his mobile phone. To make matters worse for the man, he reportedly attempted to make his escape by zig-zagging between his own lane and oncoming traffic on the backhoe. Police said he showed signs of intoxication. The personal injury consequences of this situation are discussed here.

The man in this scenario is likely looking at a charge of evading arrest in addition to DUI and whatever other charges he may be saddled with. In Tennessee, a person can be charged with evading arrest when he or she intentionally flees from any person that the suspect knows to be a law enforcement officer if the suspect knows the officer is trying to arrest them or if they have already been arrested. This is illegal both if the suspect flees on foot and if the suspect flees in a motor vehicle. Fleeing on foot is a Class A misdemeanor, punishable by up to eleven months and twenty nine days in jail. Fleeing in a motor vehicle after having received any signal to stop from a law enforcement officer is a Class E felony, unless such conduct creates a risk of death or serious injury to a third party (which could have very well happened in the scenario above) in which case it is a Class D felony.

The good news for suspects facing a charge of evading arrest is that it is a defense that the attempted arrest was unlawful. There are many ways an attempted arrest or traffic stop can be illegal, and a skilled criminal defense attorney can assist a suspect in going through those options. It is also a defense that the suspect did not know that he or she was being arrested or asked to pull over for a traffic stop, but that defense is not likely to succeed unless it is very cleverly made.

Source: http://www.azcentral.com/offbeat/articles/2010/02/09/20100209man-flees-in-backhoe.html

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.

Continue reading "Court of Criminal Appeals Overturns Possession of a Handgun Conviction" »

The word “consecutive” is a word that can strike fear into the heart of any criminal defendant. That single word can make decades’ worth of difference in defendants’ sentencing hearings, transforming multiple convictions into one extended prison term. Where sentences are imposed “consecutively” in Tennessee, they run back-to-back, meaning four sentences of four years each could result in a sentence of sixteen years. When sentences are imposed “concurrently” they all run at the same time, meaning those four convictions would net the defendant four total years of jail time. Since consecutive sentencing is an incredibly harsh punishment in many cases, Tennessee law requires that certain factors be met in order to sentence a defendant consecutively. One such factor is that the defendant is a “professional criminal.”

In State v. Talley, the Tennessee Court of Criminal Appeals upheld consecutive sentences for a defendant who was labeled as a “professional criminal,” by the trial court. In placing this label on the defendant the court looked to the defendant’s prior convictions, the defendant’s work history, and the length of time between incarcerations. Unfortunately for the defendant, none of these categories proved favorable for him and his convictions were affirmed.

The best way for a defendant to fight the label of “professional criminal,” will depend upon the circumstances of the case and the defendant’s history. Obviously the defendant stands a better chance of avoiding the label if he or she has not committed the same offense several times previously. It will also be helpful if the defendant does not have a lengthy criminal history and that the defendant’s criminal history has large gaps between offenses, showing that he or she has not made a career out of criminal activity. Also, since the label contains the word “professional,” it may help the defendant to show that he or she has been able to make a living doing something that is not some form of criminal activity. Which parts of this label a defendant wants to attack will depend on the circumstances of the case and the defendant’s history. A skilled criminal defense attorney will be able to rely on past experience and professional judgment in order to determine how to best avoid this categorization.

Source: State v. Tally, 35 TAM 6-22, 12/8/09, Jackson, Glenn, 7 pages.

An Oregon couple was convicted of criminally negligent homicide on Tuesday after a jury decided that prayer and anointing oils were not sufficient treatment for the couple’s son, who died from a congenital urinary tract blockage. The couple belongs to a church known as Followers of the Church of Christ and as such adheres to the view that doctors are to be eschewed in favor of faith healing. Stories where parents forego medical treatment in favor of faith healing practices have become increasingly common, and such practices have spawned many criminal trials. In fact, this couple’s own granddaughter had passed away under similar circumstances, but her parents were acquitted of manslaughter. The couple in this case was not so lucky. They reportedly face up to sixteen months in jail for the criminally negligent homicide charge under Oregon law. Criminally negligent homicide is a Class E Felony in Tennessee and carries a penalty of one to six years in jail.

The most obvious issue presented by this case is the conflict between protecting and criminalizing legitimately held religious beliefs. However, that issue is extremely complex and could not be treated in a blog format. Instead this case will just have to suffice for our purposes to illustrate the use of a statutorily recognized mitigating factor found in Tennessee Code Annotated section 40-35-113(3) which says that where substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense, the defendant can use such grounds as a mitigating factor.

Continue reading "Belief in "Faith Healing" Results in Criminal Conviction for Oregon Couple" »

Parents often talk about how hard it is to see a child through their teen years, and a father from Niceville, Florida would probably agree with that assessment after he had to call the police on his fifteen year-old son after a family dispute became (kind of) dangerous. The two were reportedly arguing about the son being grounded when the father demanded the son hand over his iPod. The kid refused and reportedly grabbed a spoon “in a knife-like hold” with which to threaten his dad. Fearing for his life, the father called the cops. He was charged with criminal mischief.

The notable thing about this story from a criminal law standpoint is that the son was described as grabbing a spoon in a “knife-like hold” according to the arrest report. Tennessee law, and the law of most other states, has not set a bright-line rule that defines exactly what is and what is not a deadly weapon for purposes of the criminal code. The definition of a “deadly weapon” in the Tennessee code includes “[a]nything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Thus, the definition literally encompasses any object in the world, as it is technically possible to kill someone with a piece of paper or a cotton swab if used in the appropriate manner. Whether something actually qualifies as a “deadly weapon” for purposes of the criminal code, then, will often depend on the circumstances.

In this situation, the classification of the way the spoon was held would indicate that the police possibly considered the spoon as a deadly weapon. This classification can be extremely important, because use of a deadly weapon greatly enhances the classification and punishment of certain criminal offenses. For example, robbery is a Class C felony in Tennessee, punishable by three to fifteen years in prison. Use or display of a deadly weapon during a robbery, however, automatically escalates the charge to aggravated robbery, a Class B felony that is punishable by eight to thirty years in prison.

It is clear, then, that whether or not the defendant uses an object that is considered a deadly weapon can play a large role in a criminal trial. The bad news for defendants is that there is no set rule for what specific objects can constitute a deadly weapon. The good news, however, for defendants who use borderline objects, such as forks or spoons, is that a skilled criminal defense attorney can argue from the circumstances surrounding the offense that the object was not intended to be a deadly weapon and was not used as such.

Source: http://www.nwfdailynews.com/news/boy-25379-son-police.html

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.)

A recent Tennessee Court of Criminal Appeals decision interpreted Tennessee’s DUI statute in a way that may prove confusing in the future. In the case, styled State v. Wright, the defendant was convicted of DUI based on the evidence that the officer saw him swerve over the center line of the road three times, the defendant approached a stop sign and turned left without stopping, the officer detected the odor of alcohol when she approached the vehicle, that defendant needed support when he exited the vehicle, and that the defendant failed all five field sobriety tests. Despite this, the defendant’s BAC level was only .03%, well below the legal limit of .08%. The court held that although the defendant’s BAC level was not sufficient to give rise to the legal inference that the defendant was driving under the influence, the evidence nevertheless supported a finding that the defendant was guilty of DUI. This is probably the right result in the case, as intoxication does not necessarily have any correlation to alcohol or BAC level and the defendant seems clearly to have been intoxicated. However, this case begs the question of what purpose the BAC restriction has at all.

Tennessee’s DUI statute, T.C.A. section 55-10-401, provides that it is unlawful for a person to control a motor vehicle on a public roadway or place while:

1. Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or


2. The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more.

Continue reading "BAC Level is not Dispositive in Tennessee" »

Self-defense is a theory of defense that is generally available in Tennessee to those who are charged with or accused of crimes involving the use of force against another individual. The basic premise behind the defense is that one person has the right to use a reasonable amount of force against another to prevent the suffering of death or bodily harm. This defense is recognized by statute in Tennessee, which effectively limits its applicability to situations where the elements are met. In other words, for a defendant to properly claim that he or she acted out of self-defense, certain conditions must have existed at the time the defendant committed the act for which he or she was charged. Trying to prove all of the elements of the self-defense statute is tricky in a criminal case and will often require the expertise of a skilled Knoxville criminal defense attorney.

The applicability of this defense will obviously depend on the circumstances surrounding the conduct, but certain basic conditions must always be present. Simply put, the defendant (the person who used force and is now claiming self-defense as a defense to criminal charges) must have reasonably and honestly believed that another person was using or about to use unlawful force that presented an imminent danger of death or serious bodily injury to that person or someone else which would justify the immediate use of necessary force.

Continue reading "Self-Defense in Tennessee" »

Understandably, one of the most pressing questions facing any person convicted of a criminal offense is some version of “How can I avoid jail time?” The unfortunate truth for many of those convicted of a criminal offense is that jail time is sometimes impossible to avoid. Luckily, the State of Tennessee recognizes several mitigating factors that can serve to aid defendants in obtaining shorter sentences or possibly even qualify for an alternative sentencing method and avoid jail time altogether. One such mitigating factor recognized by Tennessee is that the defendant had a mental or physical condition that significantly reduced his or her culpability for the offense. It should be noted that the voluntary use of intoxicants does not qualify under this factor. Thinking that you are a werewolf, however, probably does.

A girl from San Antonio, Texas is under investigation by authorities after she admitted to decapitating a dog, boiling its head, and mounting the head on her wall. The girl, who literally claims to be a werewolf, and goes by the name Wolfie Blackheart, told the authorities that she only took the head after finding the dog dead and that she would never hurt the dog because she herself is a canine. This is important because in Texas, just as in Tennessee, the statutes pertaining to animal cruelty and intentional killing of an animal apply by definition only to living creatures. It is unknown whether Wolfie will be charged at this time.

Continue reading "Mitigating Factors: "I'm a Werewolf"" »

For many people, the phrase “you have the right to remain silent…” is just a snazzy saying they hear on police dramas. For others, however, it is an important reminder of a Constitutional right that can be extremely beneficial if invoked when necessary. The right to remain silent derives from the Constitutional protection against self-incrimination afforded to criminal suspects. In its simplest form, it is the right to refuse to say anything that may implicate oneself as being involved in criminal activity. While the famous phrase quoted above is part of a standard Miranda warning that is typically given when a suspect is being arrested, the right to remain silent extends farther than that and can be invoked at routine traffic stops if necessary.

A good example of how this right may be beneficial comes from Crestview, Florida, where a twenty-five year-old man was recently arrested for possession of marijuana with intent to distribute. The man was pulled over for speeding, at which point the officers noticed that the man seemed nervous and that there was a strong odor emanating from his vehicle. When police asked the man if he had anything illegal in the truck, he replied with an ill-advised “I got $2,000 worth of weed in the truck,” immediately putting an end to the suspense and giving the officers probable cause to arrest him. He also admitted to selling marijuana on the weekends. Needless to say, there will be little trouble convicting the man on the charges unless there is some constitutional error with the stop.

Continue reading "The Right to Remain Silent" »

A New Jersey man pleaded guilty today to assault by automobile, two counts of aggravated assault and driving while intoxicated stemming from an accident in which the man’s drunk driving was responsible for seriously injuring three women. At the time of the wreck, which occurred on April 18, 2009, the man’s blood-alcohol content was reportedly twice the legal limit. According to his plea deal he will be facing up to five years in prison, a far cry from the decades of prison time he would have been facing had he gone to trial. The injuries to the victims in his case were severe. One victim in particular had her skull detached from her spinal column and miraculously survived. She also suffered brain trauma and has undergone fifteen operations as a result of the accident. The personal injury ramifications of this incident are discussed here.

This situation is a perfect example of how plea bargaining can aid defendants in avoiding lengthy sentences. In situations like this one, where the defendant will almost certainly be found guilty considering all the circumstances, the defendant may be better off pleading guilty and foregoing the trial process. The downside of pleading guilty is that the defendant waives several constitutional rights that are generally available to them, such as the right to a trial by jury, the right to present witnesses in their favor, and the right to confront witnesses against them.

Continue reading "Plea Bargaining Helps Man Avoid Lengthy Sentence" »

The mitigating factor discussed in today’s blog can be found in T.C.A. section 40-35-113(10) and reads:

“The defendant assisted the authorities in locating or recovering any property or person involved in the crime;”

This can be a very useful mitigating factor for defendants, and is one that has been extended by Tennessee courts to encompass more than what is revealed in the statute. For example, this factor has been extended to apply where the defendant assists the authorities in locating not only other persons involved in committing the crime but also persons or property who were the victims of the crime. This would technically apply even where the victim of the crime is deceased and the defendant assisted authorities in locating the body.

Continue reading "Mitigating Factors: Assisting the Authorities" »

One potential mitigating factor that defendants can use at sentencing in an effort to get a reduced sentence is where “the defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct.” This mitigating factor is one that will not be used all that often because it requires that the circumstances surrounding the conduct be unusual, but when such unusual circumstances give rise to the criminal conduct in question, this factor can be highly effective.

One example of when this factor might be applicable comes from a somewhat bizarre story that took place on Monday in Syracuse, New York, where a man was apparently hanging out on a street corner while intoxicated when he became the victim of a random drive-by shooting. The man, wounded in his shoulder by a single gunshot, then tried to drive himself to the hospital. Unfortunately, he began his trek on the wrong side of the road and failed to correct that mistake, smashing into another vehicle. He was charged with DWI. The personal injury law consequences of this ill-fated decision are discussed here.

Continue reading "Mitigating Factors: Unusual Circumstances" »

Today’s blog unsurprisingly continues with the recent focus of our criminal blogs on the mitigating factors defendants may be able to use to receive a more favorable outcome at sentencing. These mitigating factors are recognized by the laws of the State of Tennessee as factors that tend to mitigate a defendant’s responsibility for a crime and may lead to the defendant receiving a less severe sentence following a conviction.

One such mitigating factor is explained as: “Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained.” This could occur in a myriad of ways. For example, someone could have stolen a significant amount of money from a friend or employer and went back to that person before being discovered by the authorities and offered to pay them back the money or set up some sort of payment plan. It could also happen if a person was driving while intoxicated and crashed into another person’s home, causing damage to the structure, and before being discovered by authorities, the offender went to that person’s house and offered to pay for the necessary repairs or offered to make the repairs himself. Basically, this mitigating factor is pretty straightforward: if the offender offers to make amends or repay the victim somehow before being discovered or detected by the police, then the offender may be able to use this factor to obtain a more lenient sentence following conviction.

Continue reading "Mitigating Factors: Righting the Wrong before Detection" »

Our blog has recently focused on mitigating factors and with good reason. Statutorily-recognized mitigating factors are a tremendous tool that defendants can use in Tennessee to obtain more favorable treatment at sentencing. Sometimes this means a defendant can obtain a sentence below the presumptive sentence, and sometimes mitigating factors simply serve to counteract the effect of enhancement factors, allowing the defendant to avoid a sentence harsher than the presumptive sentence.

One of the mitigating factors that is especially applicable today can be found in T.C.A. section 40-35-113(7) and reads that one mitigating factor can be that “the defendant was motivated by the necessity to provide necessities for the defendant’s family or the defendant’s self.” The applicability of this factor, however, will be largely dependent on the circumstances. For example, a defendant who breaks in to an electronics store and steals a plasma TV will have a harder time convincing the sentencing judge that this factor should apply than will a defendant who is caught shoplifting baby food or diapers. That is not to say that the former defendant would never be able to convince the judge that this factor applies to the crime they committed, but judges will clearly be more accepting of the latter.

Continue reading "Mitigating Factor: Necessity" »

Over thirty years ago, the United States Supreme Court decided the case of Delaware v. Prouse, where they tackled the issue of arbitrary traffic stops of drivers by police officers or other similar government officials. Although over three decades have passed since the decision, the ramifications of the case are still extremely pertinent today. In Prouse, the Supreme Court held that police officers cannot arbitrarily or randomly stop vehicles in order to check whether the driver is licensed and check the registration status of the vehicle. Such a stop violates the right to privacy guaranteed by the United States Constitution.

The Court refused to give law enforcement unbridled discretion to pull vehicles over on a whim or a hunch. This has been extrapolated to mean that officers must have probable cause to initiate a traffic stop of a vehicle. The rule in Tennessee that flows from this reasoning is that a police officer wishing to make an investigatory stop (meaning a stop where the officer has not witnessed the vehicle commit a traffic violation) must have reasonable suspicion, supported by specific facts, for making the stop or else the stop is illegal.

Continue reading "Arbitrary Traffic Stops in Tennessee" »

Many of our previous blogs have discussed mitigating factors that may be useful to defendants in the sentencing phase of their criminal trials and this one continues that trend. The fact that the defendant played a minor role in the offense for which he or she was convicted is a useful mitigating factor recognized by the State of Tennessee that may serve to reduce the defendant’s sentence. To make use of this factor, the defendant simply needs to prove that he or she was convicted of an offense in which he or she played a minor role as compared to others who may have played a more significant role in the offense. Basically, the defendant is saying that other people were more responsible for, or played a bigger part in, the commission of the offense than the defendant.

A good example of this is provided by a botched robbery attempt that occurred in Conroe, Texas recently. The robbery was initially scheduled to be a four-man operation, but all four did not participate. The suspected getaway driver, exhibiting the kind of calm under pressure that most only dream of, was found by police sleeping soundly a couple of blocks from the jewelry store that was the target of the robbery attempt. Evidence in the car reportedly linked him to the robbery. His services, however, were not needed as the other participants failed to disable the alarm and were apprehended before they could execute the burglary.

Continue reading "Mitigating Factors: Minor Role in the Offense" »

Statutorily-recognized mitigating factors are among the most powerful tools available to a defendant seeking to argue for a reduced sentence. These factors allow the defendant to claim that certain aspects of his or her alleged criminal activity fits into one or more categories recognized by the State of Tennessee as behavior or circumstances that make an offense less serious than it otherwise would be. One statutorily-recognized mitigating factor is that the offense did not threaten or cause serious bodily injury. Stated another way, one could simply say the crime was one of non-violence.

It is not difficult to deduce the reasoning behind the recognition of non-violence as a mitigating factor. Offenses are clearly more serious where they endanger someone’s life, put someone at risk of harm, or actually injure or kill a victim. Tennessee thus allows a defendant to use the fact that he or she did not injure, or pose the risk of injury to, a victim during the commission of the criminal activity in question.

Continue reading "Mitigating Factors: Non-Violence" »

Bucking the long-standing tradition of teenage girls asking their parents for money when they needed some, a couple of young girls, one age twelve and the other about fourteen or fifteen, decided to “ask” the bank instead. The two girls walked into an Ohio bank earlier this month around 3 p.m., apparently unarmed, and gave the bank teller a note (which may or may not have been written in bubble letters with hearts dotting the letter “i”) demanding money. The bank teller complied and the girls fled the scene with an unidentified amount of money. Thus far, the girls have been able to avoid an extensive search by law enforcement officials.

While the age of the bank robbers is notable from a publicity standpoint, it is also relevant from a criminal law standpoint. In Tennessee, sentences are determined by starting at the presumptive sentence for a given offense and then using mitigating or enhancement factors to increase or decrease the sentence as warranted. One statutory mitigating factor that can be used to decrease a sentence reads thus: “the defendant, because of youth or old age, lacked substantial judgment in committing the offense.”

Continue reading "Young Girls Suspected in Bank Robbery" »

Criminal sentencing can be a confusing issue for many defendants. For example, if a defendant is looking at a Class B felony conviction, he or she will be looking at eight to thirty years. Obviously there is a huge difference between serving eight years in prison and serving thirty years in prison, meaning the decision-making process behind determining where in the range of possible sentences to sentence a defendant is of primary importance in criminal cases.

Tennessee law sets forth a “presumptive sentence” for each of its five felony classifications. Being the “presumptive sentence” means that sentence is the appropriate one for that felony classification in the absence of mitigating or enhancement factors. Most importantly for criminal defendants, the use of a presumptive sentence forbids the court from imposing a higher sentence unless the sentencing court determines that enhancement factors exist by a preponderance of the evidence. For Class B, C, D, and E felonies, the presumptive sentence is the minimum sentence in the applicable range, meaning:

• For Class B felonies, the presumptive sentence is eight years


• For Class C felonies, the presumptive sentence is three years


• For Class D felonies, the presumptive sentence is two years


• For Class E felonies, the presumptive sentence is one year

Continue reading "Presumptive Sentences in Tennessee" »

A fifty-five year-old bus driver from New York recently pleaded guilty to child endangerment and driving while intoxicated after she took students on a terrifying bus ride while reportedly driving a school bus while intoxicated. Students apparently begged the driver to stop because she was in no condition to operate the school bus. The driver felt that the students were overreacting and continued to drive, reportedly speeding, running over a mailbox, and rolling backwards down a hill. Some students finally opened the emergency door at the back of the bus so they could get out, putting a stop to the incident. Luckily, neither the bus driver nor any of the passengers suffered any injuries. The bus driver’s attorney said that her actions were caused by a bad reaction between alcohol and some prescription medication she was taking. The personal injury issues concerning her conduct are further discussed here.

DUI has been discussed at length in some of our previous blogs, so this blog will take an alternate path and deal with child endangerment. Tennessee’s codification of the crime of child endangerment can be found in T.C.A. section 39-15-401(c). This statute deals primarily with child abuse cases, but the statute is constructed in such a way that it could technically be applicable to the bus driver’s situation. The most interesting thing about this statute from a criminal defense standpoint is its requirement that a person “knowingly” expose a child to personal injury in order to be convicted of the offense of child endangerment.

Continue reading "Child Endangerment: "Knowing" Requirement" »

A statute of limitations is a statute that declares a maximum length of time during which a legal claim can be made after which time it is no longer available. For example, Tennessee’s statute of limitations on petitions for post-conviction relief in criminal cases is one year from the date on which judgment becomes final in cases where no appeal is taken. As a general rule, petitions for post-conviction relief that are filed after the statute of limitations has run are time-barred and the court will not consider them. However, there are three statutorily recognized exceptions that can work to defeat the statute of limitations and enable a defendant to bring an untimely petition for post-conviction relief:

1. Claims based on an appellate court ruling concerning a constitutional right not recognized at the time of the trial and given retroactive effect by the appellate courts


2. Claims based upon newly-discovered evidence which establishes that the petitioner is actually innocent of the crime


3. Claims which arise out of a situation where the petitioner received an enhanced sentence for a crime based on previous convictions which were later held to be invalid.

Continue reading "Statute of Limitations: Exceptions" »

In a criminal trial, there is a substantial difference between questions of law and questions of fact. While the issue of what distinguishes the two questions is ultimately more complex than the examination necessary for the purposes of this blog, it will be sufficient here to say that questions of law are decided by the court while questions of fact are decided by a jury. This means that the jury can decide not only whether the fact is true or false, but how much weight should be attributed to the fact for purposes of making a guilt or innocence determination.

One issue that is a question of fact is the result of a field sobriety test performed pursuant to a DUI stop. In State v. Lowe, the defendant was arrested and charged with a DUI for, among other things, failing to perform a field sobriety test adequately. The defendant apparently was administered the “walk-and-turn” test and the “one-legged stand” test and was unable to successfully perform either. The defendant argued that the results of such tests should not be considered by the jury because the police officer responsible for administering the tests testified at trial that the results of both tests are less than 70% accurate. The court correctly ruled that both the evidence regarding the defendant’s performance on such tests and the ability of the tests to measure a driver’s impairment are issues of fact for the jury to decide.

Continue reading "Field Sobriety Test Results are Issues of Fact" »

As discussed in our last blog, searches of persons, residences, or automobiles without probable cause or consent are presumed unlawful unless an exception is met. In a 2009 case styled State v. Turner, the Tennessee Supreme Court was asked to decide if a search of a parolee’s home without consent or probable cause was nevertheless a legal search due to the fact that the parolee had agreed to warrantless searches as a condition of her parole.

The defendant in Turner had been convicted of multiple felonies in Kentucky in 2002. She was paroled in 2005 and allowed to move to Tennessee. However, as a condition of her parole supervision being transferred to Tennessee, the defendant agreed to warrantless searches of her person, property, vehicle, or residence by any law enforcement officer at any time. Not surprisingly, the defendant’s home was later searched without reasonable suspicion and a handgun was found in her home, leading to the defendant’s arrest for being a felon in possession of a handgun. The defendant contended that the search was unreasonable under the Tennessee and the United States Constitutions. The Tennessee Supreme Court did not agree. Further details on the facts surrounding this case can be found in our previous blog article dealing with this case.

The Tennessee Supreme Court held that parolee’s have reduced privacy rights from those of ordinary citizens which in effect limit their expectations of privacy under the Fourth Amendment of the United States Constitution. Therefore, a warrantless search in the manner described above that is not based on reasonable suspicion that the subject of the search is involved in criminal activity will be permissible under the Fourth Amendment where two conditions are met. First, the parolee must have previously agreed to warrantless searches by law enforcement officials. Second, the searching officer must have prior knowledge of the parolee’s status as subject to such searches. Unfortunately, for the defendant, both of these requirements were met in her case.

Continue reading "Warrantless Searches: Exception for Parolees" »

In a case styled State v. Richards, the Tennessee Supreme Court recently dealt with the issue of warrantless searches. After receiving an anonymous tip that three individuals at a particular location were involved in drug trafficking, the officers traveled to that location, found four individuals gathered around a table and saw them engage in suspicious behavior. The fourth individual, who was apparently not named in the anonymous tip, was arrested only after a search of his person revealed narcotics in his possession. As a general rule, warrantless searches are presumed invalid unless the search meets one of several exceptions recognized by law. One such exception provides that a warrantless search is constitutionally permissible if the search is incident to a lawful arrest. For a search to be considered justifiable as incident to a lawful arrest, four criteria must be met:

1. The arresting officer must have probable cause to believe that the defendant had engaged or was [engaging in illegal activity]


2. The probable cause must attach to an offense for which a full custodial arrest is permitted


3. The arrest must be consummated either prior to or contemporaneously with the search


4. The search must be incident to, not the cause of, the arrest. State v. Richards, 286 S.W.3d 873, 878(Tenn. 2009).

Failure to meet any of these four conditions will mean that the search does not qualify for the exception and may be presumptively unlawful.

Continue reading "Warrantless Searches: Searches Incident to a Lawful Arrest" »

The United States Constitution gives a multitude of rights to those considered suspects in a criminal case. Unfortunately, many suspects are unaware of those rights. Prior to the landmark case of Miranda v. Arizona, which eventually made its way to the United States Supreme Court, law enforcement officials who intended to question suspects who were in custody for purposes of using the suspect’s answers at trial were not required to advise the suspect of his or her constitutional rights. In Miranda, however, the United States Supreme Court ruled that answers given by a suspect in police custody in response to police interrogation can only be introduced as evidence at trial if the suspect was informed (1) that he or she has the right to consult an attorney before and during questioning and (2) that he or she has a right against self-incrimination. The suspect must understand and waive these rights in order for statements made by the suspect in custody in response to interrogation to be admissible at trial.

In State v. Dailey, the Tennessee Supreme Court was recently faced with the issue of whether a confession given by a non-Mirandized suspect during police interrogation could be admissible at trial due to the fact that the suspect was later properly Mirandized and advised of his rights. In effect, the Tennessee Supreme Court was asked to decide if a failure to Mirandize could be cured by a proper Miranda warning given after the incriminating statements in question were made by the suspect. The Court properly ruled that no such cure is possible. The purpose of a Miranda warning is that the suspect knows his or her rights before making a potentially damaging admission or statement.

Continue reading "Tennessee Supreme Court Rules on Miranda Issue" »

If you have driven a motor vehicle for very long, you have undoubtedly come across someone like Christopher Tilas of Ocean Township, New Jersey. Mr. Tilas, like many drivers, is apparently far too busy to drive behind your car at the speed of your choosing and will attempt to pass you anytime, anywhere. If unable to complete the pass in a quick and efficient manner, the driver will become frustrated and will usually begin to tailgate you and express their displeasure in a less-than-appropriate manner. Unfortunately for Mr. Tilas, the manner he chose in which to express his displeasure with the slow driver in front of him was not only inappropriate but was also illegal.

Mr. Tilas allegedly pulled up beside the lady in front of him, who he had been unable to pass, and threatened her with a knife. He then pulled up beside her again but retreated when he noticed she was on the phone talking to someone. Unfortunately for him, that someone was the police. After the phone call was made, an officer later spotted Tilas and pulled him over. After a knife was found in his car, Mr. Tilas was arrested. He has been charged with aggravated assault and two weapons offenses.

Continue reading "Impatient Driver Charged with Aggravated Assault" »

Around this time of year, a popular hobby for kids around the world is to try to catch a glimpse of Santa Claus or maybe even catch up with him for a brief visit and discussion about what toys they would like to get for Christmas. In keeping with the Christmas spirit, a policeman from Sparta, Wisconsin received a call that Santa had been spotted and rushed to find him immediately.

Unfortunately for Santa, the cop found him and immediately issued Santa a ticket for violation of the Open Container Law. Apparently someone had seen what appeared to be a drunk driver operating a vehicle with someone dressed as Santa in the passenger seat. Once the drunk driver pulled over, a witness saw Santa stumble over to some kids, give them a hug, and ask them where his reindeer were. Luckily for Santa, he did not find the reindeer or he could be looking at a DUI charge as well.

Continue reading "Santa Claus Cited for Violation of Open Container Law" »

A Milwaukee teacher is looking at a disorderly conduct charge after she cut off one of her student’s braids because the student would not stop playing with it in class. Apparently the teacher asked the student to stop playing with her hair and when the student did not stop doing so, the teacher used a pair of classroom scissors to cut off the hair. The teacher told the girl’s angry mother that she did it because she was frustrated. After the teacher cut off the hair, the girl apparently returned to her desk crying while the other students laughed at her and ridiculed her. The mother, naturally, was incensed at the teacher’s conduct and confronted the teacher and the school system about the teacher’s actions. Thus far, the teacher has been allowed to remain on staff, but the girl has been moved to a different classroom. The district attorney declined to file more serious charges, but the police issued the teacher a $175 ticket for disorderly conduct.

In Tennessee, the teacher could definitely be charged with disorderly conduct but could also be charged with assault. Disorderly conduct is chargeable any time a person creates, with the intent to cause public annoyance and alarm, a hazardous or physically offensive condition that serves no legitimate purpose. Clearly, the teacher’s act of cutting off the girl’s braid would be considered physically offensive and venting one’s frustrations is not usually a legitimate purpose. Disorderly conduct is a Class C misdemeanor, punishable by up to thirty days in jail and a fifty dollar fine in Tennessee.

Continue reading "Teacher Cuts off Girl's Braid in Front of Classroom" »

Whether it be in the family home, a college dormitory, or a nursing home or assisted living facility, living with a roommate can often be a contentious situation. Every person has a certain way he or she likes to enjoy being at home, and roommates often fight about issues such as noise, space, organization, and cleanliness. In cases where the roommates are free to explore other living arrangements, such disagreements usually result in the roommates deciding to live elsewhere. In cases where roommates are not free to live somewhere else (brothers who share a room in the family home, e.g.), these disagreements often result in physical and verbal confrontations; rarely, however, do such confrontations turn deadly.

Unfortunately, such a confrontation did turn deadly in Massachusetts recently, with a ninety-eight year-old woman being accused of strangling her one hundred year-old roommate in a Massachusetts as a result of a disagreement about a bedside table. The victim was found dead with a shopping bag tied loosely around her head and an autopsy indicated that she had been strangled. The nursing home was aware that the table had been a source of controversy, with the victim complaining that the table obstructed her path to the restroom. The victim had also been complaining that her ninety-eight year-old roommate was making her life miserable in the weeks leading up to the apparent murder. The nursing home says it presented the victim with the chance to change rooms twice, but that the victim declined. A nursing home spokesman also said the two were like “sisters.” The ninety-eight year-old accused of the murder has been indicted on a second degree murder charge.

Continue reading "Ninety-Eight Year-Old Woman Accused of Strangling Centenarian Roommate" »

Anyone who has ever been to the hospital knows that the wait times can be extremely long, making for a frustrating experience. Twenty-eight year-old Mindy Jones of Del City, Oklahoma was experiencing that same frustration early Friday morning when she decided she had had enough and was ready to go home. Unfortunately for Ms. Jones, she did not have a vehicle at the hospital because she was there awaiting a blood test after being arrested for DUI following a hit-and-run. Ms. Jones, operating on “no car, no problem” philosophy, refused to be deterred and decided that she would just grab a spare ambulance from the hospital parking lot and drive herself home. After leading police on a fifty-mile chase from the hospital to her home, she politely parked the ambulance in her driveway before being arrested. Her deep remorse became evident when, upon being arrested in her driveway, she told reporters that she “had the ambulance and had a pretty good time driving it.”

Ms. Jones will obviously face a variety of charges, but one that is not often dealt with is the offense of joyriding. Joyriding is the unauthorized use of automobiles or other vehicles and is chargeable any time a person “takes another's automobile, airplane, motorcycle, bicycle, boat or other vehicle without the consent of the owner and the person does not have the intent to deprive the owner thereof.” The lack of intent to deprive the owner of the vehicle is included in the definition to distinguish the offense of joyriding from the offense of theft, which is where someone takes another’s vehicle with the intent to deprive them of that vehicle permanently.

Continue reading "Woman, Tired of Waiting at Hospital, Steals an Ambulance to Drive Home" »

Few things are capable of inflaming the passions of the populace like sports. This is especially true when it comes to college football, which has a more passionate fan base than most. Thus, it is not at all uncommon to see fights and arguments break out during important games or rivalry games, especially when the ending to those games is a controversial one. Last Saturday’s Big 12 Championship Game between the University of Texas and the University of Nebraska (both of which have extremely loyal and passionate fanbases) seemed an exceptionally favorable situation for such disputes, with the game deciding whether or not Texas would play for the BCS Championship. Unfortunately, such a dispute did occur and turned deadly.

Perhaps the saddest aspect of this dispute is that it was reportedly between friends, both Marines, who were scuffling around as a result of some smack-talking that took place after the game. The two men apparently got into it a little bit after the game’s controversial finish, and one of the men happened to have a firearm that discharged during the fracas. The shot proved fatal, killing the man’s friend. The gun owner has been charged with involuntary manslaughter.
In Tennessee, the man would probably be charged with criminally negligent homicide, which has replaced the crime formerly known as involuntary manslaughter in Tennessee. To be guilty of criminally negligent homicide in Tennessee, a person must be guilty of criminally negligent conduct that causes the death of someone else.

Continue reading "Man Dies in Argument over Football Game" »

A Panama City man recently took desperate measures to avoid the wrath of his wife, telling the police that he had been robbed in order to avoid having to tell her he had spent too much money. The man apparently called police and reported that he had just been attacked outside a store by a person dressed in black who made off with one hundred dollars of the man’s money (at least his story wasn’t generic).

Unfortunately for the man, the surveillance tapes from the store at which he had just finished shopping showed him leaving the store and sitting in his car for a little while before coming back into the store to make the phone call, proving that he had not actually been robbed. The man admitted to police that he had concocted the story in order to avoid having to tell his wife that he had actually spent the money. He was arrested and charged with filing a false report.

Continue reading "Man Lies About Robbery Out of Fear of Wife" »

Fifty-three year-old Elsie Egan of Marion County, Florida is particular about her menu. So particular, in fact, that she used a raw steak to beat some sense into her long-time boyfriend Peter on Tuesday for disagreeing about what type of bread the couple would have at dinner. Elsie wanted Peter to eat sliced bread, while Peter wanted rolls. He should have just settled for the sliced bread. Apparently the disagreement became heated and Elsie began hitting Peter on top of the head with an uncooked medium-sized steak. Egan denies wielding the deadly steak but does admit to slapping Peter several times so that he could learn the error of his ways. She is facing felony domestic abuse charges.

For purposes of classifying this conduct in Tennessee, it would be necessary to determine if a steak was considered a deadly weapon. Domestic abuse is punished equivalent to assault in Tennessee and assault with a deadly weapon is classified as aggravated assault. Red meat, while linked to heart disease and various other maladies, may not be the type of deadly weapon contemplated by the Tennessee statute, but it is debatable. The definition of deadly weapon in Tennessee includes “[a]nything that in the manner of its use or intended use is capable of causing death or serious bodily injury,” which technically means that if you used a steak to beat someone to death it might be considered a deadly weapon. That seems to be the way it was interpreted by the Florida authorities which led to the felony domestic abuse charges against Ms. Egan.

Continue reading "Woman Assaults Boyfriend With Uncooked Steak" »

A Canadian couple was seemingly arrested for trying to obey the law last week when they were arrested while waiting on a designated driver service to pick them up. The couple was apparently quietly standing together hand-in-hand on a street corner outside a karaoke bar in the Toronto area while waiting on their ride when a policeman showed up and promptly cited them for public intoxication.

This is apparently a pretty frequent occurrence in the Toronto area as other similar stories have also emerged in which Toronto citizens claim that they have called a designated driver service only to have the police show up at the same time and issue them a ticket for public intoxication before they can get in the taxi to go home. The policemen in the area seem to be simply following the designated driver service vehicles to their destinations and immediately arresting the patrons for public intoxication. That is a great way to issue a bunch of citations, but probably the dumbest possible way to fight the dangers of alcohol abuse. This is not only an unfair practice, but one that will doubtless force ordinarily responsible drivers to risk driving home while under the influence in order to avoid the inevitable citation that will occur should a responsible citizen choose to call a designated driver service.

Continue reading "Couple Cited for Public Intoxication While Waiting on Designated Driver" »

The grisly murders of Channon Christian and Christopher Newsom have led to a series of trials that is still ongoing, with two of the defendants already being convicted and sentenced and a third currently on trial. Attorneys for George Thomas, the defendant currently on trial, plan to file a motion for acquittal under Rule 29 of the Tennessee Rules of Criminal Procedure which basically asks that the court make a finding that the evidence presented against the defendant is insufficient to convict the defendant of one or more of the offenses with which he or she is charged.

This is a motion that is commonly used but infrequently granted because the discretion to weigh the evidence and make a determination as to guilt or innocence ordinarily rests with the jury. However, it is a valuable tool for Tennessee defense lawyers as an attorney could potentially get one or more charges dismissed against a defendant merely by filing a motion if the prosecution’s proof has shown to be inadequate.

Continue reading "Defendant in Christian-Newsom Murders to Move for Acquittal" »

For whatever reason, carjacking offenses seem to be frequenting the headlines as of late. A carjacking recently dominated the news in East Tennessee when it was the first act allegedly committed by the defendants in the Christian-Newsom murders in Knoxville in order to kidnap the victims. More recently, the daughter of Tennessee Senator Bob Corker was the victim of a carjacking while traveling to her family’s apartment in the Washington D.C. area. She apparently stopped at an intersection when she was approached by someone, dragged from her Chevy Tahoe, and thrown to the ground. The suspects then drove off in the Tahoe, but it was found later that night and the suspects were arrested.

Carjacking is appropriately classified under the “robbery” offenses in Tennessee’s criminal code. It is defined as the intentional or knowing taking of a motor vehicle from the possession of another by the use of force, intimidation, or a deadly weapon. Throwing someone to the ground and stealing their car would thus fall clearly within the language of the statute.

Continue reading "Senator's Daughter Victim of Carjacking" »

Everyone is familiar with the old adage that there is nothing like a mother’s love, and it has proven to be true time and time again. An East Tennessee policeman found that out the hard way when his attempt at arresting the thirty-nine year old man from Andersonville, Tennessee resulted in the mother of the arrested individual catching him flush in the face with a haymaker. The policeman said that the mother followed him from her home in Andersonville to the jail in Clinton and demanded her son be released, a tactic that one would have to assume has about a zero percent success rate. When the officer refused to hand over her baby boy, the lady channeled her inner Ali and socked the cop right in the kisser. She is facing numerous charges including assault.

The law provides that a person commits assault in Tennessee who:

1. Intentionally, knowingly or recklessly causes bodily injury to another;


2. Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or


3. Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Continue reading "Mother Arrested for Assaulting Police Officer" »

Bell-ringers from the Salvation Army are synonymous with Christmas and one can find them in front of virtually any major storefront this time of year, donating their time and effort in an attempt to raise money to help the less fortunate. Apparently one of the less fortunate decided to help themselves last Saturday evening, to the money that is. A 44 year-old man named Shawn Krieger of Toledo, Ohio pushed a Salvation Army bell-ringer down last Saturday and absconded with her kettle of donations. The man, obviously filled to the brim with the holiday spirit, remarked “I can’t stand you and your bell-ringing. I hate Christmas,” before getting away with an estimated $500. He was later arrested and charged with robbery.

While there is nothing illegal about not being in the Christmas spirit, there is something very illegal about robbery. Robbery in Tennessee is defined as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Clearly the man’s thievery of the Salvation Army’s money kettle would apply since he pushed the bell-ringer to the ground before taking her kettle. Robbery is a Class C felony in Tennessee, punishable by three to fifteen years in prison and a fine of up to $10,000. Robbery committed under the circumstances described above may also subject the offender to receiving a stocking full of coal.

Continue reading "How the Grinch Stole...Money from the Salvation Army" »

Few things are more annoying in life than when you go to all the trouble to break into a house so you can have a nice shower and then the residents come home early and ruin it. A man from Clearwater, Florida found himself in this situation recently, and when asked by the residents what he was doing in the home, the man gave the first reasonable answer that popped into his head: President Obama let him in. Presidents generally get a lot of blame and credit for things that are not their fault, but it is highly unlikely that President Obama makes a habit of going around letting burglars into peoples’ homes, especially considering that he has had security issues to worry about at his own home as of late. The wisecracks didn’t stop there, however; the man seemingly fancied himself somewhat of a stand-up comedian, telling police that “the Yellow Brick Road brought him to Crestview.” Hilarity ensued.

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

Continue reading "Burglar Tells Residents Obama Let Him In" »

A mail carrier is faced with a variety of charges after she hit a Tennessee Highway Patrol Trooper head-on Friday night while driving under the influence in her postal vehicle. The Trooper was apparently trying to turn into a gas station when the lady crossed lanes and struck his vehicle. The Trooper was taken to the hospital, but he was treated and released without critical injuries. The charges against the drunken driver include DUI, driving without insurance, failure to keep control of a vehicle, and vehicular assault.

Tennessee law provides that a driver can be charged with vehicular assault when, as a result of that driver’s intoxication, the driver recklessly causes serious bodily injury to another person by the operation of a motor vehicle. Intoxication in this context includes intoxication by both alcohol and drugs. Vehicular assault in Tennessee is a Class D felony, punishable by two to twelve years in prison and a fine of up to five thousand dollars.

Continue reading "Vehicular Assault" »

For the tenth time, a Tennessee man has been arrested for driving on a revoked license. Police pulled the man over after seeing him cross the center line last Friday. During the traffic stop, the man decided that if he just drove away really fast he might not get a ticket. A high-speed chase ensued, leading police across two counties and reaching speeds of up to 100 miles per hour. The man eventually pulled over and surrendered to police. The charges against him include driving with a revoked license.

T.C.A. section 55-50-504 makes it illegal to operate a motor vehicle on a public roadway with a suspended, cancelled, or revoked license. The first offense under this section is a Class B misdemeanor, punishable by up to six months in jail. A second or subsequent offense under this statute is a Class A misdemeanor, punishable by up to eleven months and twenty-nine days in jail.

Continue reading "Tennessee Man Arrested for Driving with Revoked License for the Tenth Time" »

People often use the phrase, “You scared me to death!” in a joking fashion, but authorities say that is literally what happened to a seventy-nine year old grandmother in North Carolina recently. Apparently, the elderly lady suffered a heart attack when a man broke into her home while looking for somewhere to hide after robbing a bank. The man did not call for help, and the lady died from the heart attack. Police say the man thus literally killed the grandmother without ever touching her. He was found guilty of killing someone by kidnapping them, which carries an automatic life sentence in North Carolina.

In Tennessee, the man would be charged much the same way. The law allows someone to be charged with first-degree murder in Tennessee if they kill someone during “the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy.”

Continue reading "Man Literally Scares Grandmother to Death" »

Any successful restaurant owner knows that the key to forming a stable base of repeat customers is calling the police on your patrons when they refuse to pay gratuity for bad service. At least that was the strategy employed by an employee of a Bethlehem, Pennsylvania pub recently who called the cops on two patrons who paid the entirety of their bill minus the added gratuity because they said their service was subpar. They were charged with theft of $16 since the gratuity was part of the bill.

In Tennessee, anyone who refused to pay an added gratuity in the same manner could technically be charged with theft of $500 or less under the Tennessee statute, since taking food and services of the restaurant without paying for it in its entirety does technically meet the requirements of the theft statute that a person knowingly obtain or exercise control over a person’s property without that person’s consent (in this case without paying for it). Theft in East Tennessee of $500 or less is a Class A Misdemeanor, punishable by up to eleven months and twenty-nine days in jail and a $2500 fine.

Continue reading "Couple Arrested for Refusing to Tip at Restaurant" »

Everyone has heard the old adage “don’t bring a knife to a gun fight,” but until recently no one had offered a satisfactory answer as to what should be brought instead. Clearly the person heading to the gun fight does not have a gun, or they would not have contemplated bringing a knife initially. Luckily for all unarmed gunfighters, the brilliant employees at the appropriately-named Einstein Brothers Bagels in Orlando, Florida have provided a definitive answer. When two would-be robbers walked into Einstein Brothers armed with a shotgun early yesterday morning, one of the employees pushed a bagel cart at the robbers. Sensing impending doom at the sight of the cart full of assorted bagels screaming toward them, the robbers fled.

For whatever reason, armed robbery seems to be popping up with increasing frequency in both the local and national headlines. Armed robbery is classified as aggravated robbery in Tennessee under T.C.A. section 39-13-402, which upgrades a robbery charge to aggravated robbery if a deadly weapon or the appearance or threat of a deadly weapon is used, or if the victim suffers serious bodily injury. Even though a shotgun is clearly no match for a bagel cart, it is still considered a deadly weapon in Tennessee. Thus, the crime detailed above would have been an aggravated robbery in Tennessee had the robbers followed through with their apparent plan to rob the store.

Continue reading "Bagel Cart Fends Off Robbery Attempt" »

If you have ever been to New York, you know that it seems like there are literally ten thousand people in each subway car, all struggling for a place to sit or a rail to hold on to for balance. Fighting for these prime positions on the subway can often result in contentious disputes that lead to violence. In the case of Gerardo Sanchez, a 37 year-old man from New York, a subway seat dispute led to murder. Apparently Sanchez got into a dispute over a seat with another passenger that resulted in Sanchez stabbing the man in the head and neck several times, eventually killing the victim. A train conductor alerted the authorities, and Sanchez was arrested when the train made its next stop. He was charged with murder and criminal possession of a deadly weapon.

In Tennessee, Mr. Sanchez would likely be charged with second-degree murder. A “knowing killing of another” is sufficient to qualify as second-degree murder under the Tennessee statute, which basically means that any time a person kills another person intentionally, they can be charged under the second-degree murder statute. It is possible that since Mr. Sanchez was obviously enraged by the victim taking his seat that he could be charged with the lesser charge of voluntary manslaughter, which is the intentional or knowing killing of another person while “in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”

Continue reading "New York Man Killed Over Subway Seat" »

A man from Clinton, Tennessee died this past Wednesday night after a car struck him as he was crossing the street in Lexington, Kentucky. Police are still searching for the driver, who fled the scene. This is a classic and tragic example of what is known as a hit-and-run. From both a criminal law and injury law standpoint, commission of a hit-and-run is one of the absolute worst decisions that someone can make while driving a vehicle. The personal injury consequences are discussed in today’s blog on www.tennesseeinjurylawyerblog.com while this article deals with the criminal consequences of a hit-and-run.

A hit-and-run can give rise to a number of criminal offenses, the most serious of which is vehicular homicide (assuming the hit-and-run was not planned beforehand). T.C.A. section 39-13-213 defines vehicular homicide in the following manner:

• (a) Vehicular homicide is the reckless killing of another by the operation of an automobile, airplane, motorboat or other motor vehicle, as the proximate result of:
  
  1. Conduct creating a substantial risk of death or serious bodily injury to a person;
  
  
  2. The driver's intoxication, as set forth in section 55-10-401. For the purposes of this section, “intoxication” includes alcohol intoxication as defined by section 55-10- 408, drug intoxication, or both; or
  
  
  3. As the proximate result of conduct constituting the offense of drag racing as prohibited by title 55, chapter 10, part 5.

Continue reading "Hit-and-Run Kills Tennessee Man" »

The hits keep on coming for the University of Tennessee football team, especially off the field. Just last week the team was faced with the distraction of having three players charged with attempted armed robbery which resulted in two of them being dismissed from the team and the third suspended from participating in team activities. Now this week it has been discovered that freshman safety Nyshier Oliver was arrested for shoplifting about five hours before Tennessee kicked off against Memphis on November 7th. Apparently he was spotted putting a shirt that costs about $100 in a shopping bag without paying for it at a department store in West Town Mall which led to the arrest. He has been charged with shoplifting.

Shoplifting is basically punished as theft of property in Tennessee. A person is guilty of shoplifting when, with intent to deprive a merchant of the stated price of the merchandise, that person knowingly does any of the following:

1. Conceals the merchandise;


2. Removes, takes possession of, or causes the removal of merchandise;


3. Alters, transfers or removes any price marking, or any other marking which aids in determining value affixed to the merchandise;


4. Transfers the merchandise from one container to another; or


5. Causes the cash register or other sales recording device to reflect less than the merchant's stated price for the merchandise.

Continue reading "Legal Woes Continue for Tennessee Football Team" »

Now we know what Santa Claus does when he’s not engaging in his annual, worldwide, day-long burglary spree under the pretense of bringing toys to children: possessing and distributing child pornography. Well, that is at least what one Santa Claus from New Jersey does in his spare time as evidenced by his recent guilty plea entered in federal court in New Jersey to a multitude of child sex charges. The New Jersey man, who played Santa Claus at events like parties and bar mitzvahs, admitted to possessing and distributing child pornography and traveling to Thailand three times to have sex with boys as young as six years old, was sentenced to approximately twenty years in prison this past Monday for his involvement in what was discovered to be an international sex tourism ring. Not helping his cause was the fact that he led authorities on an international manhunt before being arrested in 2008. There has been no word as to what will become of the man’s reindeer and workshop full of toys.

The charges relating to the international sex tourism ring are charges that would be rooted in federal law and thus have no practical equivalent in Tennessee law. However, encouraging or forcing a minor to engage in the production of child pornography is contemplated by Tennessee law and can lead to substantial prison time. Intentionally commanding, persuading, hiring, inducing or otherwise causing a minor to participate in actual or simulated sexual activity that is patently offensive (as almost any sexual activity engaged in by a minor will be) is a Class B felony in Tennessee, punishable by up to thirty years in prison and a twenty-five thousand dollar fine.

Continue reading "Santa Claus Pleads Guilty on Child Pornography Charges" »

People may be required to take drug tests for a variety of reasons. Drug tests may be a mandatory job requirement, may be mandatorily imposed by the State of Tennessee as a result of a past conviction for certain offenses, or may be required by a health or life insurance provider. Even though drug tests are generally (but not always) known about beforehand and usually carry stiff penalties for failure, such as loss of a job or violation of probation, some Tennesseans end up in the precarious position of knowing they are about to fail a drug test before they take it. Unfortunately, this leads some people to attempt to falsify the results of the test, an effort which is becoming increasingly futile.

As medical science continues to evolve, drugs test results are becoming harder and harder to fake. This is especially true now that drug tests can be reliably administered by using hair follicles in addition to urine samples. However, the fact that it is harder to fake a drug test is not dissuading companies from coming up with products to assist the daring drug devotee in his or her efforts to beat the tests. Someone wishing to falsify a drug test can simply use the internet to purchase someone else’s urine, buy a warmer to heat the urine to the correct temperature, and even purchase a prosthetic “bladder” device that fastens to some remote location on one’s body that gives the appearance that the urine is being produced by the drug-test taker. The problem with this scenario, besides the fact that you can probably never be making a good life-decision if you find yourself purchasing another person’s urine, is that testing companies are always looking for new ways to detect when these methods are being used. If they are successful in detecting when a test-taker has falsified the results of his or her drug test in some manner, that person could be looking at jail time.

Continue reading "Falsifying a Drug Test" »

One of the biggest keys to orchestrating a proper burglary would seem to be having a good disguise. For example, a burglar may wear a Bill Clinton mask while breaking into a house in order to pin the crime on the former president rather than themselves. Almost anything can be used to hide a face during a criminal activity, and almost anything has, including ski masks, underwear, paper bags, and cardboard boxes. The most important characteristics of a good disguise are twofold. First, it is important that the disguise makes it so that people cannot recognize you (hence the “disguise” element). Second, it must be easy to dispose of after the commission of the crime to avoid leaving a trail of evidence. Two clever criminals from Iowa recently neglected these two important factors in coming up with their disguise, facilitating their arrest for burglary.

The expression, “It’s written all over your face,” is often used to describe someone who looks guilty or whose face gives away the truth in some fashion. This phrase has taken on new meaning after the two burglars mentioned above decided to disguise themselves during a burglary attempt by coloring their faces with permanent markers. Shockingly, this disguise proved ineffective. Not only did the permanent marker fail to hide their facial features, but the burglars were more than likely the only two people riding around town with permanent marker all over their faces. Such a disguise clearly fails both of the important disguise-choosing criteria discussed above and was woefully ineffective at helping the criminals evade authorities. Police pulled over a car matching the description given by the victims some time after the burglary, saw the two men sitting inside with marker all over their faces, and arrested them. They were charged with burglary.

Continue reading "Men Use Permanent Marker to Create Burglary Disguise" »

Three University of Tennessee football players have been charged in connection with an attempted robbery that allegedly took place on Cumberland Avenue early Thursday morning. Janzen Jackson, Nu’Keese Richardson, and Mike Edwards have been identified as three of the suspects who were arrested in connection with the incident. The victims were apparently sitting in a vehicle at a Pilot gas station on Cumberland Avenue during the wee hours of Thursday morning when two males in hooded sweatshirts approached the car and demanded that the victims hand over everything they have. One of the males was also in possession of what appeared to be a handgun. The third male then came over and told the other two suspects that they needed to leave. A search of the surrounding area eventually uncovered the vehicle used by the suspects in the commission of the offense. A search of the vehicle’s contents uncovered two black hooded sweatshirts, marijuana paraphernalia, and a black pellet gun. The suspects were taken back to the site of the attempted robbery and identified by the victims. They have been charged with attempted aggravated robbery.

Aggravated robbery is a Class B felony in Tennessee, punished by up to thirty years in prison. A robbery is considered “aggravated” when the victim suffers serious bodily injury, the robbery is accomplished with a deadly weapon, or the robbery is accomplished with some item used or fashioned to lead the victim to believe it is a deadly weapon. In this case, it is clearly the latter condition that upgrades the robbery charge to aggravated robbery. The pellet gun was used in such a manner that the victim(s) believed it was a real gun and thus a deadly weapon. It is worth noting that this criterion can apply even where no type of gun is used at all. In fact, merely poking a finger through one’s shirt would qualify as aggravated robbery if it led the victim to believe the robber had a gun.

Continue reading "Three Vols Charged with Attempted Aggravated Robbery" »

In what can only be described as a bizarre occurrence, five men in the same family in Missouri were recently arrested and charged with a litany of sexual crimes against children. Some of the charges were especially heinous and include forcible sodomy, rape of a child less than twelve, and use of a child in a sexual performance. The men are also accused of bestiality and forcing an eleven year-old to have an abortion. While there are a plethora of legal issues presented by sexual crimes against children, this article will focus on a single aspect of such behavior: the role of age in enhancing criminal offenses.

Tennessee’s equivalent to the charge of rape of a child less than twelve is found in T.C.A. section 39-13-522, Tennessee’s rape of a child statute. This statute holds that a person commits rape of a child when they unlawfully sexually penetrate a child who is between the ages of three and thirteen. This offense is a Class A felony which is normally punishable by fifteen to sixty years of imprisonment. However, the child rape statute provides that in no case shall anyone convicted of this offense be sentenced to less than twenty-five years, effectively making it a twenty-five to sixty year sentence. Contrast this with the offenses of rape and aggravated sexual battery (Class B felonies) and even second-degree murder (a Class A felony with no mandatory twenty-five year minimum) and one can see that Tennessee has a public policy of considering sexual offenses especially heinous when the victim is younger than thirteen.

Continue reading "Five Men in Same Family Charged with Child Sex Crimes" »

In the wake of one of the worst recessions in American history, families simply do not have the discretionary income they once had. Pretty much everyone is feeling the crunch of not having the discretionary income necessary to afford certain luxuries. Take, for example, Trista Lathern, a Texas woman who recently became an entrepreneur of sorts in order to raise money to buy breast implants. Not having the money to buy them immediately, Mrs. Lathern did what any reasonable American would do and came up with a business model. However, that model consisted of an illegal scam in which she pretended to have cancer in order to get donations from sympathizers with which she intended to buy the breast implants.

Mrs. Lathern went as far as shaving her head under the pretense of undergoing chemotherapy and collected over $10,000 at a cancer benefit stages on her behalf. Unfortunately for Mrs. Lathern she will not be allowed to keep those donations, but there is a chance that, hearing of Mrs. Lathern’s touching story, the Texas Department of Criminal Justice will be willing to donate food, clothing, and shelter to her for about a half-decade or so. She has been charged with theft by deception, a felony in Texas.

Continue reading "Woman Fakes Cancer to Raise Money for Breast Implants" »

Nothing says “I am mad at you” like dragging someone’s defenseless dog behind your truck like an amateur water-skier. At least that was apparently the mindset of a Knoxville man who was arrested and charged with aggravated cruelty to animals after onlookers spotted him doing just that last Tuesday afternoon. One witness said that as many as twenty or thirty people were yelling at the man, who is ironically nicknamed “Dog,” to stop after noticing that he was dragging a small dog behind his truck on a street off of Middlebrook Pike, but the man refused to stop. When Mr. Dog finally came to a stop, he reportedly yelled at the onlookers, tossed the hapless animal into his truck, and drove off. The dog was later found abandoned by a business on Sutherland Avenue and is currently recuperating at the University of Tennessee’s College of Veterinary Medicine. There is no word on whether or not the accused gets to keep his nickname.

T.C.A. section 39-14-212 provides that someone commits aggravated cruelty to an animal when he or she, with aggravated cruelty and no justifiable purpose, intentionally kills or causes serious physical injury to a companion (non-livestock) animal. Aggravated cruelty is defined as that “which is done or carried out in a depraved and sadistic manner and which tortures or maims an animal, including the failure to provide food and water to a companion animal resulting in a substantial risk of death or death.” Intentionally dragging an animal behind your car seems to fit this definition pretty clearly. Violation of this statute is a Class E felony, punishable by up to six years in prison and a fine not to exceed $3,000.00.

Continue reading "Knoxville Man Charged with Aggravated Animal Cruelty" »

In a somewhat novel but seemingly legitimate defense strategy, a Florida man accused of killing his stepson in New Jersey recently used his obesity as an alibi. The circumstances surrounding the murder indicated that the killer fired a shot into the victim’s leg, sprinted up a flight of steps and then fired four more extremely accurate shots at the victim. After shooting the victim, the murderer apparently made a quick getaway before anyone could get a good look at him. Edward Ates, the man accused of the crime, argued that at 5’8” and approximately three-hundred pounds, he was simply too fat to have pulled the crime off in such a manner. Mr. Ates presented experts that testified that his physical condition would have rendered him unable to steadily fire four shots at the victim after running up a flight of steps because he would have been out of breath and his hands and legs would have been shaking due to the physical stress such an act would place on his body. He also argued that he would have been physically unable to drive for twenty-one straight hours to get back to his home in Florida, which the prosecution alleged was the case, after shooting the victim because his obesity would have prevented him from doing so. Unfortunately for Mr. Ates, this defense carried no weight (no pun intended) with the jury, and he was convicted of first-degree murder.

Tennessee law holds that first-degree murder can encompass three types of criminal activity:

1. “A premeditated and intentional killing of another;


2. A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or


3. A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.”

Continue reading "Man's "Too Fat to Kill" Defense Fails" »

The issue of children being tried as adults is one of the most controversial aspects of criminal law. There is an obvious tension between punishing the offender based on the severity of offense and protecting an offender whose youth and immaturity may dictate that he or she did not fully understand the consequences of his or her actions or possess the requisite intent. In order to try to balance this tension, Tennessee law allows a juvenile to be transferred from juvenile court to be tried as an adult, but only in limited circumstances. This is part of a comprehensive endeavor by Tennessee to define at what age a citizen could, and should, be considered capable of possessing the mental ability and requisite intent to commit a crime.

Any person who is under seven years of age in Tennessee is conclusively presumed to not be accountable for their actions. This applies regardless of the offense and is not an absolute rule. Persons between the ages of seven and fourteen are presumed to be incapable of committing a crime, but that presumption can be overcome if the circumstances show that the offender was clearly able to distinguish between good and evil at the time of the offense. A person above the age of fourteen is considered capable of distinguishing between right and wrong unless the circumstances indicate otherwise. Between the ages of seven and eighteen, any offender who is charged with a juvenile crime in East Tennessee will be handled by the juvenile court system unless they are transferred to a criminal court and tried as an adult.

T.C.A. section 37-1-134 sets out the requirements for an offender to be transferred from juvenile court to a criminal court to be tried as an adult. First, the offender must have been sixteen years-old or older at the time of the offense unless the offender is charged with “first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated robbery, especially aggravated robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping or an attempt to commit any such offenses,” in which case the offender can be tried as an adult at any age (excluding children seven years-old and younger, see above). Second, a hearing on the transfer must be conducted in conformity with applicable law. Third, reasonable notice must be given to the child and the child’s legal guardian prior to the hearing. Fourth, the court must find that there are reasonable grounds to believe that the child committed the delinquent act(s) as alleged, the child is not committable to an institution for the developmentally disabled or mentally ill, and the interests of the community require that the child be put under legal restraint or discipline. The statute includes a list of factors the court can consider in making this determination.

Continue reading "Children Tried as Adults in Tennessee" »

One aspect of the criminal justice system that is discussed far too little is the importance of courtroom behavior, specifically as it pertains to being respectful to the judge and other court officials. The most obvious reason one should always treat the judge with respect is that the judge is in charge of the courtroom and the proceedings that take place in that courtroom, and a defendant will not garner any favor with the person in charge of it all by being rude or belligerent. Another reason to behave appropriately is that bad behavior in the courtroom that reaches the level of contempt can be punished with jail time or a fine, possibly both. Trials are often contentious and heated, such is the nature of the adversarial system. Understandably, defendants will at times be unhappy or frustrated with the proceedings or the judge in charge of the proceedings and will feel the need to express their displeasure. Acceptable means of expressing displeasure in the courtroom include frowning, grimacing, or even crying. Unacceptable means of expressing displeasure include, but are not limited to, shouting, cursing, and giving the judge “the finger.”'

An Illinois man learned this lesson the hard way recently when he felt inclined to salute the judge in such a fashion while in court on home-invasion charges. Apparently, the man was instructed to raise his right hand to be sworn in before the court and elected to only raise part of it. No doubt this maneuver impressed friends and family alike, but the judge was not amused. Upon seeing the gesture, the assistant state’s attorney asked that the man be found in contempt of court, and the judge complied with the request. He was given six months in jail for his unfortunate method of self-expression.

T.C.A. section 29-9-102 gives a judge the power to find someone in contempt in any of the following circumstances:

1. “The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice;


2. The willful misbehavior of any of the officers of such courts, in their official transactions;


3. The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;


4. Abuse of, or unlawful interference with, the process or proceedings of the court;


5. Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or


6. Any other act or omission declared a contempt by law.”

Continue reading "Man Gives Judge the Middle Finger, Gets Six Months in Jail" »

In modern society, debates rage about which methods of discipline are appropriate for parents to use with their children. Most of the debate is focused on the ethics of spanking versus non-physical means of punishment and proponents of both sides differ as to what is acceptable and what amounts to going too far. In an effort to define with greater clarity what does indeed “go too far,” an Iraqi immigrant father living in Arizona recently ran his daughter over with the family car because he felt she was becoming too Americanized. The dad was apparently upset that the daughter was not living in comport with traditional Iraqi values and thus ran her over with the belief that she had caused the family too much dishonor to be allowed to live. He was later arrested at the Atlanta airport, but there is no word yet on what charges he will face. As of the writing of this article, the daughter remains hospitalized.

In Tennessee, the father would be looking at a litany of charges, most notably some sort of attempted murder charge (assuming the victim does not die from the injuries) depending on the circumstances surrounding the incident and the father’s mental state. Criminal attempt is an “inchoate offense,” which basically means that the person charged is accused of acting with the intent to commit the offense or attempting to commit the offense but did not actually follow through with the commission of the offense in such a manner that the offense attempted can be charged. For example, the father in this case allegedly attempted to kill his daughter by running over her with his vehicle and took steps to accomplish that goal. If the father’s plan would have been successful, he would have been guilty of murder. However, if the daughter does not die as a result of the attack, one of the necessary elements of a murder charge, a “killing,” is absent under the circumstances. Thus, the father can only be charged with attempted murder.

Continue reading "Dad Runs Daughter Over with Car as Punishment: Criminal Attempt" »

A Wisconsin woman recently took the idea of “doing your civic duty” to a whole new level. Noticing that there was a drunk driver on the road, the woman immediately called to report the offender to emergency services. The 911 operator was shocked to find that the woman reported that the drunk driver was none other than herself, responding to the question of, “Are you behind them?”, with the reply of, “I am them.” The dispatcher recommended the woman pull over, and she obliged. She was later charged with driving drunk and operating a vehicle with a blood-alcohol level of .1 or more. While her voluntary confession did not result in her being able to avoid the charges altogether, it may aid her in obtaining a more lenient punishment from the court.

In Tennessee, a person can be charged with driving under the influence under T.C.A. section 55-10-401 if they are operating an automobile or other motor-driven vehicle while:

1. “Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or


2. The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more.”

While self-reporting may not help you avoid a DUI charge in Tennessee, it can help mitigate the penalty imposed for the offense. The penalties for DUI in Tennessee range from misdemeanors to serious felony charges based on the circumstances surrounding the offense and the number of times a particular offender has been arrested for driving under the influence. Thus, a DUI conviction can be accompanied by stiff consequences, such as a decade or more of imprisonment.

Continue reading "Woman Reports Herself for Driving Drunk" »

Life is full of surprises. One can go from the highest of highs to the lowest of lows in a matter of seconds. One minute you can be living the good life, ruling the road in your motorized recliner, and the next thing you know you are getting bushwhacked by a parked car. To make matters worse, the ambush could lead to your arrest for driving under the influence while not causing you serious enough injury for anyone to feel bad about making fun of you. While this hypothetical situation may seem far-fetched, it is exactly the scenario in which a Minnesota man found himself in August of 2008 and resulted in him pleading guilty recently to the charge of driving under the influence.

While it may seem odd to be charged with driving under the influence from the comfort of your easy chair, Tennessee law allows the offense to be charged against anyone who operates a “motor driven” vehicle while the alcohol concentration in the person’s breath or blood is .08% or more. The recliner in this case had been equipped with a converted lawnmower motor, steering wheel, stereo system, and cup holders, so the Tennessee statute clearly would apply to the vehicle. Also, the man’s blood alcohol content was allegedly .29% at the time of the offense, almost four times the legal limit in Tennessee. Although it seems rare that someone would be charged with a DUI on a piece of furniture, the Tennessee statute is drafted so that such activity is actually covered. Citizens would be well-advised to learn more information on the penalties for DUI in Tennessee.

Continue reading "Man Gets DUI in Recliner Chair" »

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

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

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

Continue reading "Victim Impact Statements" »

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

Continue reading "DUI Applies to Motor Vehicles Only" »

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

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

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

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


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


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


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

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

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

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

Continue reading "Peremptory Challenges During a Jury Selection" »

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

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

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

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

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

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

Continue reading "Dial 911 for Emergencies Only" »

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

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

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

Continue reading "Using Age as Leverage" »

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

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

Continue reading "Formal Defect Causes Fatal Deficiency" »

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

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

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

Continue reading "Enhancement Factor: Position of Trust" »

The subject of animals can be very divisive in modern day society. Some people treat them like family members and genuinely love and care for them as such; others view them as annoyances and entertain murderous thoughts when they are woken up at four in the morning by their neighbor’s dog deafeningly deterring some random disturbance in the night; still others simply don’t care one way or the other about animals. And then there are always those whose love for animals is based on how much their body parts would bring on the black market.

While that last category of animal appreciator may seem unusual, it is exactly the mindset of two teens arrested recently in Florida for allegedly going on a killing spree involving almost twenty horses. The teen was charged with armed burglary, animal cruelty, killing a registered breed horse, and breaking a fence. According to the article, the teen was among those who were butchering live horses statewide in an effort to sell the horses’ meat on the black market. According to AOL News, the meat sells for as much as $40 per pound, at least in part because some people believe horse meat can cure diseases like cancer and AIDS.

In Tennessee, intentionally killing an animal is basically treated as theft of property and punished according to the value of the animal if the killing of the animal is not justified. Under the Tennessee statute, one is only justified in killing an animal upon the reasonable belief that the animal is creating an imminent danger of death or serious bodily injury to that person, another person, or an animal owned by that person. Thus, killing an animal as described in the article above would be a criminal act in Tennessee, punished in the same manner as theft in Tennessee. Theft of Property ranges from a Class A Misdemeanor charge if the property is valued at less than $500 to a Class B Felony if the property is valued at $60,000 or more under T.C.A. section 39-14-105.

Continue reading "Intentional Killing of Animals in Tennessee" »

Sometimes it is the little things in life that cause the most frustration. This is particularly true when it comes to automobile travel. For example, it is extremely frustrating to sit at a red light for what seems like an eternity when your car is the only car at a four-way intersection. Likewise, sitting in traffic for hours is maddening, and when a police car, lights flashing, speeds happily by your inert vehicle on its way to its destination, it is hard not to feel a twinge of envy.

A twenty-one year-old security guard from Shreveport, Louisiana, knows this feeling all too well. Growing tired of the inconveniences of civilian life, the security guard decided to take matters into his own hands. He acquired a flashing red light to place on the dash of his vehicle, armed himself with a handgun, and set out to lay waste to all would-be impediments to his absolute vehicular freedom. Unfortunately for him, one of those impediments came in the form of Shreveport’s mayor.

When the mayor saw the flashing lights coming from the car behind him, he pulled over, expecting to see a police officer pull behind him or pass. Instead, he saw the security guard go by, became suspicious, and contacted the police. Police caught up with the security guard, and determined that he was impersonating a police officer for the purpose of maneuvering unimpeded through traffic. They then seized his flashing light and handgun, arrested him, and charged him with criminal impersonation.

Continue reading "Fake Cop Faced with Real Jail Time" »

Of all the rights protected by the American legal system, the right to life is the most fundamental and is thus protected in a myriad of ways. It also may be the most controversial, having the ability to spark furious debate on topics such as abortion, assisted suicide, and the death penalty. One important concept protecting the right to life in the death penalty arena is that the person awaiting execution must be competent to be executed.

Tennessee’s two-prong standard for determining whether or not a person is competent to be executed is currently at the forefront of an extremely controversial Tennessee murder case. In 1985, Gregory Thompson was convicted of murdering twenty-eight year-old Brenda Lane with a butcher knife. According to Thompson, he abducted and killed the victim so he could use her car because he believed a gang of Ku Klux Klan members was chasing him. Thompson has had an execution date set more than once, but his case remains unsettled because the issue of his competency to face execution keeps surfacing.

To be competent to face execution in Tennessee, a person must both understand that his execution is imminent and understand the reason for which he is being executed. In Mr. Thompson’s case, he has told psychologists and psychiatrists who examined him that an attempt at execution will not actually kill him but that he will survive the attempt and be retried for the crime at a later date by a professional jury. Mr. Thompson’s comments indicate that he not only fails to understand that his impending execution will end his life but also that he may not understand that he has been found guilty of a crime at all, instead believing that he has yet to face an appropriate jury.

Continue reading "Competency's Role in Executions" »

Americans often like to cite the various rights guaranteed them by the United States Constitution and with good reason; these guarantees protect and empower Americans in various ways. These rights, however, are anything but guaranteed. The Sixth Amendment gives a defendant the right to assistance of counsel in criminal prosecutions, but this right, like any right, can be taken away if it is not used responsibly. A recent Tennessee Court of Criminal Appeals case illustrates this idea.

Mr. Willis, the defendant, was charged with four counts of Tennessee first-degree murder and three counts of abusing corpses, and the State of Tennessee was seeking the death penalty. Mr. Willis, in an effort to delay his impending trial, attempted to get his appointed counsel to withdraw from representation so he would be appointed a different attorney and, more importantly, his trial date would be pushed back to give that attorney time to get familiar with the case. As trial dates approached, Mr. Willis would refuse to communicate with his attorney, would file complaints against his attorney with the Board of Professional Responsibility, or would attempt to sue his attorney in some fashion in order to get the court to dismiss the attorney and appoint someone else.

The first time Mr. Willis employed this tactic, the trial court had a lengthy discussion with him and explained to him that although he had a right to assistance of counsel, abuse of that right would lead to both its forfeiture and Mr. Willis representing himself in his murder trial. The court explained how difficult and dangerous it was for defendants to represent themselves, but Mr. Willis was apparently unconvinced.

Continue reading "Assistance of Counsel is Not an Absolute Right" »

When preparing to meet a long-lost biological parent for the first time, a child who was previously given up for adoption would presumably try to prepare themselves for all of the possible outcomes of the meeting. The reunion could be a joyous one where the child and the parent reconnect and begin making up for lost time. The reunion could also be an awkward one, where the two discover that they lack any sort of personal connection whatsoever. Or, as a child in Michigan recently experienced, the reunion could be part of a bizarre scheme by the parent to seduce and rape their own biological child.

Michigan police say a thirty-five year-old mother who gave her son up for adoption more than a decade ago recently used the internet to track him down, seduce him, and rape him. She has been arraigned on three charges of criminal sexual conduct for raping her biological son, who is only ten years-old. The mother maintains her innocence and is currently awaiting trial. Mental health experts consulted for comment about the case described the conduct as “an abomination” and voiced their concerns that the repercussions of the conduct may have long-lasting effects on the minor child.

Under Tennessee law, the mother could be faced with a litany of charges, the most serious being rape of a child under T.C.A. section 39-13-522. Rape of a child is defined as “unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if the victim is more than three (3) years of age but less than thirteen (13) years of age.

Continue reading "Mother Tracks Down, Rapes Son" »

Two mothers were recently arrested in New York for entering a written agreement to allow one mother’s thirteen year-old daughter to be romantically involved with the other mother’s nineteen year-old son. The purpose of the pact was to avoid statutory rape charges in the event that the girl became pregnant. While the mothers probably thought this was an effective way to facilitate such a relationship, the State of New York did not agree, and the two mothers were arrested and charged with child endangerment. Likewise, the nineteen year-old male was arrested and charged with several counts, including second-degree rape. Clearly, New York law does not allow either the consent of the victim or the victim’s guardian to legalize what would otherwise be an illegal relationship.

Tennessee law takes an identical stance with regard to issues of consent to statutory rape. The Tennessee statutory rape statute, T.C.A. section 39-13-506, only considers three factors in defining and classifying statutory rape (whether sexual penetration occurred, the age of the victim, and the age of the offender in relation to the age of the victim) and consent is markedly absent. This statute demonstrates that the clear public policy of the State of Tennessee is to protect minors who may be more easily influenced or may not understand the ramifications of their sexual conduct from abuse at the hands of those who may seek to exploit them.

Tennessee recognizes that a four or five year age difference can be significant in terms of mental and emotional maturity among adolescents, opening up the possibility that the older person in a relationship may be ready to engage in and cope with conduct in which their younger partner is not ready to participate. Given this focus placed on the potential immaturity of the victim, Tennessee has chosen not to consider that the victim may consent to the behavior as such consent could also be borne out of the same mentality.

Continue reading "Statutory Rape: Issues of Consent" »

When found guilty of a crime, whether by decision or plea, the next stage in the criminal process is sentencing. At this stage, defendants need skilled and experienced representation to ensure that their rehabilitation needs are considered and that a fair and just sentence is imposed. An unrepresented defendant or a defendant poorly represented risks excessive jail time and other penalties.

Alternative sentences authorized by law, include:

• Payment of a fine instead of prison time;


• Payment of restitution to victims instead of prison time;


• Suspended sentence upon a term of probation supervision that may include community service and/or restitution;


• Periodic confinement that may be served in a local jail or workhouse in conjunction with a term of probation;


• Work release;


• Community based alternatives in lieu of jail time (varies according to jurisdiction).

Continue reading "Alternative Sentencing" »

In the preceding article, I discussed the policy purposes underlying sentencing in Tennessee. This article provides more specific information on the considerations a court must apply when imposing penalties on a defendant—whether the penalty is incarceration, probation, community service or some other alternative sentencing arrangement.

When incarceration is considered by the judge as an option, the judge must consider whether confinement is necessary either:

1. to protect society by restraining the defendant who has a long criminal history,


2. to avoid depreciating the seriousness of the offense,


3. or to provide an effective deterrence to others likely to commit similar offenses.

The judge must also determine whether measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.

The judge is required to apply uniformity in sentencing. Accordingly, the judge must ensure that the sentence is no greater than that deserved for the offense committed and that the sentence imposed is the least severe measure necessary to achieve the purposes for which a sentence has been imposed. Inequalities in sentences unrelated to the purposes of sentencing should be avoided.

Continue reading "Sentencing Considerations" »

By way of introduction, I discuss in this entry the General Assembly’s express purposes in enacting the Criminal Sentencing Reform Act.

The Reform Act is the end result of comprehensive penal and sentencing reform legislation enacted in 1989 to address inconsistencies found in the penal code. Addressing these inconsistencies, the General Assembly set standards for crime classification and sentencing methodology. Principles underlying this unifying approach were also codified (or re-codified) in TCA 40-35-102 to ensure fairness and justice in sentencing procedures. Five principles are discussed below:

First, every defendant is to be punished by a sentence he or she justly deserves in relation to the seriousness of the offense. As will be seen, violent crimes like homicide and aggravated assault generally carry more severe consequences than other crimes. Furthermore, the seriousness of theft and vandalism offenses depends on the value of the property stolen or destroyed.

Second, defendants are assured fair and consistent treatment by eliminating unjustified disparities in sentencing and by providing a fair sense of predictability. In pursuit of this goal, the legislature examined the crimes in Tennessee and ranked them according to the perceived seriousness of each defense. The General Assembly created 5 classes of felonies (A through E) with each class carrying a defined prison and fine range. For example, the prison range for a Class E felony is one to 6 years, whereas the prison range for a Class A felony is 15 to 60 years. The General Assembly also created 3 separate ranges for misdemeanors.

Third, the goal of punishment is to prevent crime and promote respect for the law. Accordingly, sentences should provide an effective deterrent to those who are likely to violate the law, restrain defendants with lengthy criminal histories, encourage rehabilitation through alternative sentencing and correctional programs, and encouraging restitution to victims where appropriate.

Continue reading "Criminal Sentencing in Tennessee: Purposes of the Reform Act" »

In a series of articles over the next couple of weeks, I will be discussing some of the various aspects of Tennessee’s Criminal Sentencing Reform Act of 1989 (“Reform Act”). My goal in discussing this topic is to encourage people who have been charged with a crime to seek out representation so as to give themselves the best chance for avoiding or reducing possible jail time.

An experienced Tennessee criminal defense attorney knows the substance of the charges levied against you, their consequences, and, if convicted, how to reduce or possibly avoid jail time altogether. An experienced criminal defense attorney can also seek out alternative sentencing in lieu of jail time, which can prevent criminal charges from going on your permanent criminal history.

Continue reading "Introduction to Criminal Sentencing in Tennessee" »

The Tennessee Supreme Court recently had the opportunity to revisit the informer’s privilege. In particular, the court addressed the circumstances under which the identity of a confidential informant must be disclosed to a criminal defendant prior to trial.

What is the informer’s privilege? It is the government’s privilege to not reveal the identity of an informer. The justification for the privilege is twofold: 1) to protect informants from reprisals and 2) to maintain the informant’s confidential status. The privilege does not apply where the informer is also a government witness during the criminal trial.

The informer’s privilege is not absolute and must be waived when the defendant demonstrates by a preponderance of the evidence that the informer’s identity is crucial to his or her defense. Examples of mandatory disclosure provided by the Tennessee Supreme Court in the case State v. Ostein included evidence that the informant 1) participated in the crime, 2) witnessed the crime, or 3) had information favorable to the defendant.

Continue reading "Informer's Privilege" »

Driving off without paying for gas is a serious offense in Tennessee. Not only can you lose your license, but you can be put in jail and be required to pay fines. Probation, restitution and license restoration fees may also be involved. Moreover, a gasoline theft conviction goes on your permanent public record, risking your reputation and job opportunities.

What is gasoline theft? Gasoline theft is treated under the law as any other theft crime in that punishment is meted out based upon the value of the product stolen. Since in the typical case a tank of gas is less than $500, gasoline theft is usually charged as a Class A misdemeanor, carrying a prison sentence of no more than a year and/or up to a $2,500 fine.

As a theft crime, a person who is charged with gasoline theft also has available to him/her certain “affirmative” defenses. An affirmative defense is when you admit to certain factual allegations but assert other facts that constitute a legally recognizable excuse or justification for your actions actions. Self defense in a murder case is an example of an affirmative defense.

It is an affirmative defense to prosecution for gasoline theft that you either:

• acted under an honest claim of right to the property involved,


• acted in the honest belief that you had the right to obtain or exercise control over the gasoline, or


• obtained or exercised control over property honestly believing that the owner, if present, would have consented to you taking the gasoline.

Continue reading "Gasoline Theft and Affirmative Defenses" »

From time to time, I am asked what a person is legally supposed to do if he or she is involved in a Tennessee motor vehicle accident that results in injury. TCA 55-10-101 spells out a driver’s legal duties when involved in such accidents and imposes serious penalties on those who fail to comply.

The driver’s initial duty under the law is to immediately stop the vehicle at the scene of the accident. The law instructs that the vehicle should be stopped in a place that does not obstruct traffic anymore than is necessary.

The driver is also required to provide certain information to law enforcement personnel and to other drivers who were involved in the accident. The driver must provide the officer with his or her name, address and registration number of the vehicle driven. He must also, upon request, exhibit his license to the person struck or other attending person.

The driver is also under a duty to render “reasonable assistance.” This duty includes carrying, or the making of arrangements for the carrying, of the person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if carrying is requested by the injured person.

Continue reading "Responsibilities of Drivers When Involved in Car Accidents in Tennessee" »

In 2007, a Clarksville coach and teacher, Willard Ross, was shot and killed by a stray bullet in a Wal-Mart parking lot. The man who shot Coach Ross had a prior criminal record and did not have lawful possession of the handgun.

After receiving a letter from Mr. Ross’s family, representative Joe Pitts along with Senator Tim Barnes sponsored a bill intended to give law enforcement officers another tool to keep guns out of the hands of felony offenders. The law was passed in May 2009 and was officially entitled the Coach Willard Ross Act of 2009.

Effective July 1, 2009, the Act creates a Class A misdemeanor offense for purchases or attempted purchases of firearms by those who are prohibited from owning, possessing or purchasing firearms by state or federal law. The Act also creates a Class A misdemeanor offense for an individual who sells or offers to sell a firearm to a person whom he knows is prohibited from owning, purchasing or possessing a firearm according to state or federal law.

Continue reading "Coach Willard Ross Act of 2009" »

Under current DUI law, the introduction of the results of a blood alcohol test cannot be admitted into evidence without the defendant’s consent if blood was taken from the defendant while he or she was incapable of refusing the test (e.g., the defendant was unconscious).

The new law adds an exception to the blood alcohol test consent requirement. Enacted into law in May of 2009, the new law requires a law enforcement officer to cause the driver of a vehicle involved in an accident resulting in injury or death to another to be tested to determine the alcohol or drug content of the driver's blood, but only if the officer had probable cause to believe that the defendant driver had committed one of the following offenses:

• Driving under the influence of drugs or alcohol;
• Vehicular assault and aggravated vehicular assault; or
• Vehicular homicide.

Continue reading "New Law Allows Admission of Blood Alcohol Test Results Regardless of Defendant's Consent" »

The recent amendment to the gun permit law—T.C.A. 39-17-1311(b)(1)—also added a federal default regulation allowing persons authorized to carry handguns within the state of Tennessee to carry guns in its national parks so long as bringing the gun into the park does not violate federal law.

Under current federal law, in effect since the Reagan administration, registered gun owners were permitted to bring non-concealed, unloaded weapons into national parks. As of February of 2010, permit holders will be allowed to carry concealed, loaded guns and rifles into any national park or wildlife refuge located within a state that does not ban guns in parks for those who hold valid permits.

Continue reading "Concealed Handguns Allowed in Great Smoky Mountains National Park if Registered" »

Commenting on the possible cause of the current hostile fervor surrounding healthcare in America, Senator Arlen Specter stated, "I think there is a mood in America of anger with so many people unemployed, with so much bickering in Washington ... with the fear of losing their health care. It all boils over."

Protest, demonstrations and town hall disruptions can be seen everywhere, across the nation and right here in East Tennessee. While many have been and may likely be charged with loitering and disorderly conduct, others may also be charged with the more serious crimes of rioting. This blog entry lays out some of the basic elements of riot crimes in Tennessee. If charged with such a crime, you should contact an experienced Sevierville criminal defense attorney immediately.

Under Tennessee law, a riot means “a disturbance in a public place…involving an assemblage of three or more persons which, by tumultuous and violent conduct, creates grave danger of substantial damage to property or serious bodily injury to persons or substantially obstructs law enforcement or other governmental function.”

Continue reading "Inciting a Riot in Tennessee" »

In the paper this week was an article about how a younger brother intervened in an altercation between his older brother and mother resulting in a fatal stabbing of the older child. While the younger child could be charged with a homicide offense, the case brings to mind the defense of third persons defense recognized under Tennessee law.

Under T.C.A. 39-11-612, a person is justified in threatening or using force against another to protect a third person, if under the circumstances as the person reasonably believes them to be, the person would be justified in threatening or using force to protect against the use or attempted use of unlawful force reasonably believed to be threatening the third person sought to be protected. A person is justified if the person has reasonable belief that there is imminent danger of death or serious bodily injury to the third person, the danger creating the belief of imminent death or serious bodily injury is real or honestly believed to be real at the time, and the belief of danger is founded upon reasonable grounds.

Continue reading "Defense of Others Under Tennessee Law" »

Littering is a crime in Tennessee punishable as either a misdemeanor or felony depending on the weight or volume of the litter and the number of prior convictions.

You can be charged with criminal littering in three different ways: First, a person litters when he or she knowingly places, drops or throws litter on any public or private property without permission and does not remove it. Second, a person litters when he or she negligently places or throws glass or other dangerous substances on or adjacent to water to which the public has access for swimming or wading, or on or within fifty feet of a public highway. Third, a person litters when he or she negligently discharges sewage, minerals, oil products or litter into any public waters or lakes within the state.

There are three different types of littering offenses with punishments ranging from a small fine and minimal community service to jail time and substantial community service. Mitigated criminal littering is a Class C misdemeanor and is characterized as littering in an amount less than or equal to five pounds or one half cubic feet in volume. This crime is punishable by a $50 fine. Failure to pay the fine to the clerk of court may result in a judicial order to remove litter from public locations for no more than forty hours.

A more severe penalty is criminal littering, which is characterized as littering in an amount more than five pounds or fifteen feet in volume. Criminal littering is a Class B misdemeanor and is punishable by a fine and mandatory removing of litter from appropriate public locations for no more than 80 hours. A person convicted also may be required to work in a recycling center for up to eight hours.

Continue reading "Think Littering in Tennessee is Not a Crime, Think Again" »

A former Brushy Mountain corrections officer was acquitted last Wednesday of recklessly facilitating the escape of George Hyatte. In the case against the officer, the state’s attorney alleged that the corrections officer made two phone calls to Mr. Hyatte’s spouse and, while speaking to her, he informed her about lax security conditions at the Roane County Courthouse. While these actions were clear violations of Tennessee Department of Correction’s Policy, the facts did not amount to criminal conduct, according to Judge Eblen.

Why not? According to T.C.A. 39-16-607, an official of a prison who recklessly facilitates the escape of a person charged with a felony commits a Class C felony. Essentially, a person acts recklessly with respect to facilitation of escape when he consciously disregards a substantial and unjustifiable risk that escape will result from his conduct.

The problem with the case against the officer was that Mrs. Hyatte changed her testimony. Prior to the case, Mrs. Hyatte informed prosecutors that the officer assisted the couple in orchestrating the escape. However, at trial, Mrs. Hyatte testified that Mr. Hyatte told her to implicate the officer in the escape because he was upset that the officer gave him a mean look after the shooting. She also testified that Mr. Hyatte told her to implicate the officer because it might help them avoid the death penalty. She further testified that the escape plan was already determined prior to the officer’s informing them of lax security at the Roane County Courthouse and that the officer did not know that they were planning an escape.

Continue reading "Facilitating Escape Charges Dismissed Against Former Brushy Mountain Corrections Officer" »

Every year a news story hits the national airwaves about a person who unlawfully enters school premises to commit a crime. Sometimes the crime committed is sexual assault and, at other times, the crime is distribution of controlled substances.

Just this year, Jackson, Michigan, made national news after a man unlawfully entered onto the school grounds of a local middle school and allegedly attempted to sexually assault a female student. Based on video surveillance footage, a 27-year old male waited at the locked entrance to the school’s music room, waited until someone opened the door, entered, walked directly into a female restroom, and accosted the female victim. The man was charged with assault with intent to commit sexual penetration and second-degree criminal sexual conduct.

In Tennessee, under TCA 49-6-2008, the alleged perpetrator could also be charged with unlawful entrance upon school premises. The language of the statute reads: “[i]n order to maintain the conditions and atmosphere suitable for learning, no person shall enter onto school buses, or during school hours, enter upon the grounds or into the buildings of any school, except students assigned to that bus or school, the staff of the school, parents of students, and other persons with lawful and valid business on the bus or school premises.”

Continue reading "Persons Improperly on School Property" »

Just last week while driving in the middle lane on I-40, a police officer blew right by me going approximately 80 mph. He was not operating his blue lights or his sirens. Suffice it to say, driving at high rates of speed is unlawful even for emergency vehicles when not operating emergency equipment. It is also unlawful to text while driving—at least for the general public. And yes, while speeding, this officer seemed to be texting. The tail-tell signs: both hands resting at bottom of steering wheel grasping a small mechanical device, head directed downward.

But the new Tennessee traffic violation law does not apply to police officers. On April 23, 2009, the Senate adopted certain amendments to the text messaging law and passed Senate Bill 393, which, as amended, specified that the bill does not apply to officers of the state, or of any county, city or town, charged with the enforcement of the laws of the state, when in the actual discharge of their official duties.

Continue reading "Texting While Driving Unlawful in Tennessee, Except for Law Enforcement Officers and Emergency Personnel" »

According to the Knoxville Police Department, there were 109 home invasion robberies last year within the Knoxville city limits. There have already been 60 home-invasion robberies since January of this year.

The KPD insists that these numbers don’t mean that there is an epidemic of violent robberies in Knoxville. A spokesman for the KPD indicated that, since 2003, only 3 people have died and “several others” have been injured during the course of a home invasion.

He also indicated that most home invasions are usually fueled by the illegal drug trade. “In nearly every single incident, the facts of the investigation have indicated that there had been some kind of prior [illicit] business dealing between the suspects and the victims, or that it was family related. It’s very rare to have a complete stranger home invasion.”

Nevertheless, homeowners and tenants in Tennessee generally have the right to defend themselves against home invaders.

Under Tennessee law, a person can use deadly force to protect against someone who unlawfully and forcibly enters his or her home, without having the duty to retreat, if he or she has a reasonable belief that there is imminent danger of death or serious bodily injury. (The danger creating the belief of imminent bodily injury must also be real or honestly believed to be real at the time of the invasion, and the belief of danger must be founded upon reasonable grounds.)

Continue reading "Home Invasions in Tennessee" »

Getting a tattoo has become increasing popular in the United States. According to the article, The Changing Cultural Status of the Tattoo Arts in America, "[t]he culture status of tattooing has steadily evolved from that of an anti-social activity in the 1960s to that of a trendy fashion statement in the 1990s." New York Times op-ed columnist David Brooks echoed this sentiment by stating, "[o]ther people are trying to unveil their wild side. They're taking advantage of the fact that tattoos are associated with felons, bikers and gangstas. They're trying to show that far from being the dull communications majors they appear to be, they are actually free spirits - sensual, independent, a little dangerous."

Getting a tattoo is also popular amongst America’s youth. A quick google search for “minors” and “tattoos” yields several results of minors looking for ways to get around state laws prohibiting the tattooing of a person under the age of 18. According to an investigative report in the Cincinnati Enquirer, children circumvent tattoo laws by either finding the shops that don’t routinely check IDs or creating a fake ID. Children will also get tattoos by doing it themselves or having an unlicensed tattoo artist do it for them.

Given the risks associated with tattoos (e.g., contracting Hepatitis C) and the potential for abuse, most states regulate the tattoo industry. In fact, in Tennessee and in all of its bordering states, the commercial tattooing of a minor is prohibited.

Continue reading "Unlawful Tattooing of a Minor in Tennessee" »

Recently, an ex-official of a county government in Tennessee was accused of forgery and fabricating receipts during an official investigation into county expenditures. Since many news sources only name the crimes for which a suspect has been charged, this blog entry briefly outlines the substantive law applicable to these white collar crimes.

Forgery - Under T.C.A. § 39-14-114, a person commits a Class E felony if he or she forged a “writing” and did so with the intent to defraud or harm another. A common scheme occurs when an employee uses a company credit card or account for personal expenditures and then creates fake receipts to make it look like the expenditures were used for company purposes.

Fabricating Evidence - A more serious crime, under T.C.A. § 39-16-503, a person commits a Class C felony if he or she alters a record with intent to impair the truthfulness of the record while an investigation or proceeding is taking place. Using the example above, a person would commit this crime if the company was currently under an official audit and, the defendant, with knowledge that the audit was taking place and with intent to prevent the audit from targeting him or her, forged the receipts.

To learn more about white collar crimes , please visit the Baker Associates Tennessee criminal defense website.

Exercise of the First Amendment right of free speech is alive and well in the state of Tennessee. Recently, residents from Bristol and surrounding areas of East Tennessee came out to protest President Obama’s healthcare initiative outside a Kroger supermarket. From all reports, no arrests were made during the protest.

The same cannot be said about a demonstration that occurred on March 14 in front of the Tennessee Valley Authority headquarters, located near Market Square. During the protest, local residents, students and out-of-state activists demonstrated against mountaintop removal coal mining and the recent coal ash disaster affecting the residents of Harriman, Tennessee in Roane County.

After marching through downtown, some participants decided to stage a “die in” by falling to the sidewalk, symbolizing what they believed to be the deaths caused by the coal industry. Within a few minutes, law enforcement informed the participants that they were blocking a sidewalk and needed to leave. When they refused, they were arrested and charged with “loitering.”

Loitering is perhaps the most common offense charged during a protest or demonstration. In Tennessee, loitering falls under the general crime of disorderly conduct. In the protest context, you can (lawfully) be arrested for 1) refusing to obey an officer’s order to disperse so long as the order is issued to maintain public safety during an emergency situation, 2) creating a hazardous or physically offensive condition by an act that serves no legitimate purpose, or 3) making an unreasonable noise that prevents others from carrying on lawful activities.

Continue reading "Arrested During a Peaceful Protest or Demonstration?" »

Contributing to the delinquency of a person under the age of 18 is a crime in Tennessee and is punishable by up to a year in jail and/or a $2,500 fine. Additionally, if vandalism is involved, the defendant may be responsible for the costs of repair and restoration.

To be found guilty of the crime, the state must prove that the defendant contributed to or encouraged delinquency, a delinquent act, or unruly behavior of a child. A delinquent act is conduct that amounts to a crime under state law, federal law, or local ordinance. On the other hand, unruly behavior consists of habitual truancy, disobedience to parents, commission of crimes only applicable to children (such as underage drinking), and running away from home.

Examples of contributing to the delinquency of a minor include encouraging or enabling a child to:

• Watch sexually explicit materials (pornography);


• Smoke cigarettes or otherwise use tobacco products;


• Drink alcohol;


• Sell or use controlled substances like marijuana, ecstasy, LSD, and prescription drugs;


• Skip school; and


• Theft.

Continue reading "Contributing to the Delinquency of a Minor in Tennessee" »

Shoplifting is a “theft of property” offense in Tennessee. Under the Tennessee Code, a person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent.

Sentencing for shoplifting depends on the value of the merchandise that was allegedly stolen. If the value of the property was $500 or less, the crime is classified as a Class A misdemeanor. This means that, if convicted, you could be facing up to a year in jail and a $2,500 fine. Theft of property for merchandise valued over $500 is a felony and carries much stiffer penalties.

To be convicted of shoplifting, however, the state must prove beyond a reasonable doubt each element of the crime. Thus, in addition to the other elements of the crime, the state must prove that you intended to deprive the owner of merchandise. Under this requirement, a person is not guilty of shoplifting if he or she accidentally walked out of the store with merchandise. To deprive means to withhold property from the owner permanently or for such a period of time as to substantially diminish the value or enjoyment of the property to the owner. Accordingly, the state will likely need more evidence than the fact that you were caught with store merchandise.

While facing criminal charges for shoplifting can be a frightening and intimidating experience, you need to know that you are innocent until proven guilty. What this means is that it is the state’s initial responsibility to come forth with sufficient evidence to charge and convict you of a theft crime. The mere accusation of shoplifting is not enough.

Continue reading "What is Considered a Shoplifting Offense in Tennessee? " »

In addition to the cost of bail, loss of work, and the possibility of fines, retaining an experienced criminal defense attorney can seem like too much. But is it too high a price if hiring an attorney gives you the best chance for an acquittal or reduced charges? If freedom and reputation is priceless, I would think not.

Here’s a list of 5 reasons why you shouldn’t represent yourself “pro se”.

1. Complex Court Procedures - When representing yourself, you are responsible for knowing and abiding by the court's practices and procedures in the same way as an experienced practicing attorney. These procedures apply uniformly and are designed to ensure a fair and efficient judicial process. Accordingly, these practices and procedures are typically inflexible and unforgiving.


2. Complex Law - Criminal laws are not straightforward. Often the language is ambiguous and left to the courts to interpret. Without adequate knowledge of judicial interpretations, you will likely find yourself up against a mountain of confusion when what you need is clarity.


3. Too Close to the Situation - Being accused of a crime can wreak havoc on your emotions and drain your energy. When prosecutors and law enforcement have worked countless hours building a case, it can seem as if the whole world is against you. Emotions then stand in the way of reason, which in turn leads to mistakes, miscalculations and hasty decision-making.


4. Prosecutorial Advantage - In many instances, by the time you’ve been arrested or indicted, prosecutors and law enforcement have already spent countless hours and resources working on a case against you. Thus, there’s no time to play catch-up once charges are pressed.


5. Knowledge of Defense Strategy - An experienced criminal defense attorney in Tennessee knows what you can’t learn in a book. It’s a feel for the “game” of what defense strategy works and what strategy does not, what evidence is good evidence and what is not, where evidence is and where evidence is not.

Continue reading "5 Reasons Why You Shouldn’t Represent Yourself When Accused of a Crime in Tennessee" »

Health care fraud, particularly medical identity theft, is on the rise. According to estimates from a federal report for 2007, more than 250,000 Americans were victims of medical identity theft.

Health care fraud in Tennessee is diverse and complex and targets both the public and private sectors. Healthcare fraud includes:

• Medical identity theft,


• Billing for services not rendered,


• Billing for services, which are not medically necessary,


• Receiving or offering kickbacks for patient referrals,


• Knowingly delegating responsibilities to untrained, unlicensed personnel,


• Double billing for medical services, and


• Fraudulent cost reporting by providers.

Both state and federal law enforcement agencies investigate health care fraud. Some of these agencies include local law enforcement agencies, the Tennessee Bureau of the Investigation, FBI, FDA, and the Justice Department.

Continue reading "Elements of Health Care Fraud and Medical Identity Theft" »

With summer in full swing, residents and out-of-state visitors alike have taken their boats out onto East Tennessee’s numerous rivers and lakes. Many like to have a good time—whether fishing, skiing, or just simply relaxing.

While boating recreation involves good food, good fishing and good company, it also frequently involves alcohol. For those boat operators out there, you should know that the same Tennessee DUI laws applicable to motor vehicles apply similarly to boats. Accordingly, you could be subject to a felony and all of its consequences upon arrest for and conviction of driving a boat while under the influence of alcohol (or “BUI”).

In Tennessee, it is unlawful to:

• operate a vessel subject to registration, and


• while on public waters of Tennessee,


• while under the influence of any intoxicant or with a blood alcohol content of .08 percent or greater.

Continue reading "Alcohol and Boating (BUI) Don’t Mix" »

Disorderly conduct is a Class C misdemeanor in the state of Tennessee and is a kind of “catch-all” charge for minor offenses involving some kind of alleged unruly or upsetting behavior that provokes a disturbance.

All too often, disorderly conduct stems from a police officer giving someone a hard time until they lose control. Indeed, this is the exact allegation of colleagues of Henry Louis Gates Jr. who was arrested for disorderly conduct in his home in Cambridge, Massachusetts, after a neighbor reported seeing Mr. Gates breaking into his own home. Reportedly, Mr. Gates believed he was shocked when police continued to question him after he showed them his Harvard faculty ID. According to the police, Mr. Gates got angry, followed them out of the house, and accused them of being racists. According to some views of the incident, the police officers acted in retaliation by arresting Mr. Gates for disorderly conduct.

Examples of disorderly conduct in Tennessee include:

• Fighting,


• Violent or threatening behavior,


• Refusal to obey official order during an emergency situation,


• Creating a hazard (e.g., obstructing traffic), or


• Creating an offensive condition (e.g., using extremely offensive or abusive language targeted at a police officer).

As you can see, a wide range of behaviors can fall under the rubric of disorderly conduct. Likewise, many have been arrested without legitimate reason or without proper cause.

Continue reading "Disorderly Conduct in Tennessee" »

On June 15, a West Hills neighborhood was blocked off by police officers after Knoxville City Councilwoman, Barbara Pelot, reported to the police that she had found a suspicious ticking device in her yard. A bomb squad arrived on the scene and after approximately thirty minutes, they determined that the device was not a bomb, but instead some elaborate prank.

The Knoxville News Sentinel reported Pelot as saying that several neighbors had complained beforehand of broken mailboxes, uprooted trees and plants, and landscaping rocks thrown into the streets. Pelot also indicated that there have been no more incidents of vandalism since the fake bomb prank.

As any resident can attest, the events that transpired in the West Hills neighborhood are common incidents one can expect when living in the cities and suburbs of East Tennessee. But vandalism is no laughing matter. If caught, charged and convicted, you could be facing either a high misdemeanor charge or a felony, depending on the amount of damage caused or the cost incurred as a result of the vandalism. In either case, you could be facing jail time and steep fines.

Continue reading "Vandalism Culminates in Bomb Threat in Knoxville Neighborhood" »

Last week, we reported on the General Assembly’s passage of a new Tennessee gun law that would allow gun permit holders to possess a handgun while in a public park or campground. We also noted that the new law contains an opt-out provision for local governments that wish to continue the ban.

Update: On July 20, the Oak Ridge City Council joined Murfreesboro and Clarksville by voting 5-2 to approve a resolution to ban guns in parks and greenways. The new resolution provides that signs will be displayed in all city parks and greenways warning that carrying a handgun in such places constitutes a misdemeanor.

Though a gun ban enjoys strong support in Jefferson County, the Dandridge City Council voted against the resolution.

Continue reading "Guns in Tennessee Parks Update" »

When you have been accused of a crime, you are facing the horrible possibility of going to jail, fines and a criminal history that may follow you for the rest of your life. Finding a competent criminal defense attorney is critical.

A knowledgeable criminal defense attorney will represent those accused of crimes to the best of his or her ability while efficiently utilizing all of the appropriate resources and tactics available. Competent criminal defense attorneys can also negotiate with prosecutors to reduce charges and sentences.

In fact, a competent criminal defense attorney is much more than a skilled trial attorney. An experienced criminal defense attorney in Tennessee knows the criminal process from top to bottom and knows what it takes to help you reach the best possible outcome under the circumstances.

Additionally, a good criminal defense attorney will:

• Objectively analyze the client’s situation and discuss with the client all of the available legal options and their consequences.


• Develop sentencing programs that specifically meet the client’s needs so as to avoid future entanglements with law enforcement.

Continue reading "Finding the Right Criminal Defense Attorney in East Tennessee" »

Anabolic Steroids are classified as a Schedule III controlled substance in both the Tennessee and United States Code because of their potential for abuse and harmful side effects. Under Schedule III, any drug or hormonal substance that is chemically related to testosterone is an anabolic steroid.

Steroids specifically mentioned in the code are Boldenone, Chlorotestosterone, Clostebol, Dehydrochlormethyltestosterone, Dihydratestosterone, Drostanolone, Ethylestrenol, Fluoxymesterone, Formebulone, Mesterolone, Methandienone, Methandranone, Methandriol, Methandrostenolone, Methenolone, Methyltestosterone, Mibolerone, Nandrolone, Norethandrolone, Oxandrolone, Oxymesterone, Oxymetholone, Stanolone, Stanozolol, Testolactone, Testosterone, and Trenbolone.

Under Tennessee law, it is a crime for a practitioner to prescribe order, distribute, supply or sell an anabolic steroid for enhancing performance in a sport or exercise or for hormonal manipulation intended to increase muscle mass, strength or weight without medical necessity. For all other persons, it is unlawful to manufacture or deliver a steroid or possess with intent to deliver, manufacture or deliver the anabolic steroid. Distribution or sale of an anabolic steroid cannot be inferred from the amount or weight of the substance in the defendant’s possession.

Continue reading "How is Anabolic Steroid Use a Crime in Tennessee?" »

Under existing law, it is a Class A misdemeanor for any person to possess or carry a handgun in a public park, playground, civic center or other property owned, used or operated by a municipal, county or state government for recreational purposes. The prohibition, however, does not apply to peace officers, soldiers, security guards, hunters, persons attending gun shows or persons delivering or picking up passengers.

A new law taking effect on September 1 will allow handgun permit holders to possess a handgun while in parks, natural areas, campgrounds and similar public places. However, under the new law, local governments are allowed to prohibit such possession in parks and similar areas owned by local government, upon a majority vote by its legislative body. The new law amends TCA § 39-13-70.

According to the July 13th issue of the Knoxville News Sentinel, municipal authorities in Dandridge, Jefferson County, are considering opting out of the new law because of a 2006 incident where three adults were shot at a city ball park known as the “Field of Dreams.” Knox County officials are also considering an ordinance that will prohibit guns in ball parks. It is unclear whether Mayor Haslam will support the ordinance. In Blount County, there are no plans to propose an ordinance. The new law does not affect Sevier County because it has no parks.

If you have been charged with a hand gun crime, consult the experienced Tennessee criminal defense attorneys at Baker Associates to see what legal action can be carried out to defend your rights.

When determining who to retain as defense counsel when charged with a federal offense, the same principles apply to hiring a federal criminal defense lawyer as hiring a Tennessee criminal defense lawyer. Essentially, you will want someone who has experience trying cases in federal court.

The federal criminal court system is similar to the state system with a few significant exceptions. Federal District Attorneys notably have more time and resources than local state prosecutors. Federal cases, moreover, tend to be more factually and legally complex. As a result, federal charges tend to be more difficult to defend than state criminal charges.

Another big difference between state courts and federal courts are the many subtle but significant differences in rules of evidence, criminal procedure, trial procedure and sentencing procedure. It is therefore necessary during a criminal proceeding to be represented by a lawyer who is familiar with the federal process and its rules. It is also helpful to have a defense attorney who is familiar with the local U.S. Attorney’s office handling the case.

Continue reading "Federal Crimes Attorneys in Tennessee" »

Under Article III of the U.S. Constitution as applied to the states through the 14th Amendment, all persons have a right to a jury when accused of a crime. The Supreme Court has decided, however, that the right does not extend to petty offenses. Under this judicial interpretation, states are free to determine which offenses are petty and which are not.

In Tennessee, petty offenses (or “small” offenses), are defined as cases where the potential sentence is less than $50 and carries no jail time. This can include ordinance and traffic violations in TN.

Defendants may also waive their right to a jury trial. In Tennessee, only Circuit Courts have jurisdiction to try cases before a jury. Further, only a Circuit Court can convict a person of a felony. If charged with a misdemeanor, the defendant is typically convicted and sentenced by a judge in General Session Court; however, the defendant can specifically request a jury trial and have his or her case heard in Circuit Court.

Continue reading "Right to a Jury in Tennessee" »

In designating carjacking as a more serious crime than theft and robbery in Tennessee, the General Assembly recognized that carjacking is usually committed by someone who tries to flee from the scene of another crime and that such action creates a substantial risk of harm to the public. Consequently, carjacking is a Class B felony, which carries a prison sentence between 8 and thirty years and a fine not to exceed $25,000.

Under Tennessee’s criminal code, carjacking is “the intentional or knowing taking of a motor vehicle from the possession of another by use of either,

• A deadly weapon, or


• Force or intimidation.”

A deadly weapon typically means a firearm but can also include any object that is designed, made or adapted for the purpose of inflicting death or serious bodily injury, such as a club, knife or an automobile.

Deadly weapons seem serious enough, but defendants can also be on the hook simply for sneaking up on someone, pushing her out of the way, and taking her vehicle. This conduct falls under the rubric of force and intimidation. All that is required is that the victim be placed in fear.

Continue reading "Carjacking Crimes in Tennessee" »

Individuals who have been accused of crimes will sometimes resign themselves to defeat. They feel that the evidence is too strong or that they will buckle under the pressure. However, all accused persons in the United States and Tennessee are entitled to what is called the presumption of innocence. Coupled with the fact that the prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt, the state often has a tough row to hoe when trying to put you in jail.

In Tennessee, if you have been accused of a crime, you are legally presumed to be innocent until a judge or jury has convicted you or if you plead guilty to the crime. Thus, the state has the initial burden to come forth with convincing evidence of your guilt. For example, in a Tennessee drug possession case, the state must prove beyond a reasonable doubt all elements of the charge. Under T.C.A. § 39-17-418, it is an offense for a person to knowingly possess marijuana. Under this law, not only must the state prove that you had marijuana in your possession, it must also prove that you did so with knowledge that you possessed the controlled substance. If the state fails to prove either element beyond a reasonable doubt, you go free.

But what does it actually mean to prove something “beyond a reasonable doubt”? By way of comparison, the burden of proof in a civil matter is “preponderance of the evidence.” This means that the plaintiff has to prove that, more likely than not (i.e., above 50 percent), the defendant was negligent. In contrast to civil matters, the burden of proof in a criminal case is much higher.

Continue reading "Presumption of Innocence and the Standard of Proof in Criminal Trials" »

From time to time, a potential client accused of a crime will call up one of our TN criminal defense attorneys with allegations that an undercover police officer tricked him into doing an unlawful act. When the officer merely provides an opportunity for a suspect to commit a crime, the client has no defense. However, when the client comes to us with facts that the officer took steps to persuade him to do an unlawful act, we start thinking about the defense of entrapment. If there is sufficient evidence of persuasion or inducement, the client may not be criminally liable for the crime of which he is accused.

Specifically, Tennessee law provides that “it is a defense to prosecution that law enforcement officials, acting either directly or through an agent, induced or persuaded an otherwise unwilling person to commit an unlawful act when the person was not otherwise predisposed to do so.”

To illustrate, say an undercover police officer poses as a drug buyer and approaches a suspected drug seller or dealer. The officer asks the suspect if he knows where he can purchase drugs. The suspect says he has no idea. The officer, however, continues to press and, growing tired of the persistent officer, the suspect calls up a friend who gives him a number of a known drug dealer. The suspect then gives the number to the officer who proceeds to offer the suspect money to purchase the drugs for him. Seeing an opportunity to make a quick buck, the suspect accepts the money and is later arrested for selling drugs in Tennessee.

Continue reading "What Qualifies as Entrapment in Tennessee?" »

Tennessee classifies crimes in one of two categories: misdemeanor and felony. For both of these categories, the state must prove that the suspect committed an unlawful act with criminal intent. For example, first degree murder in Tennessee is a felony and is characterized as the premeditated and intentional killing of another. The unlawful act is the “killing of another”. The criminal intent element is doing the act with premeditation and with intent to kill.

Likewise, the unlawful act in an assault crime—a misdemeanor—is the defendant’s causing of another to fear bodily injury. The intent element is satisfied when the state proves that the defendant acted with the intent to cause the defendant to fear harm.

Felony, however, is distinguishable from misdemeanor based on the penalty ranges assigned. Penalties for felonies range from one year to 60 years. Penalties for misdemeanors range from one day to 364 days. On the other hand, conduct punishable only by fine is not considered a crime but rather is classified as an infraction or violation.

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