Tennessee Criminal Lawyer Blog

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.

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

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

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

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

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

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

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

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

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

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

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.

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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.

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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”

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.”

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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.

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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.

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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.”

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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