Tennessee Criminal Lawyer Blog

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

The Hester analysis, while it was and still is accurate, has since been superseded with regard to how to analyze a search by a test set forth by the United States Supreme Court in the case of Katz v. U.S. Katz established a two-part test for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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

Continue reading "DNA Evidence Issue to be Reviewed" »

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" »

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" »

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" »

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

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

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

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

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

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

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

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

1. “A premeditated and intentional killing of another;


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


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

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

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

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

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


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

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

Continue reading "Woman Reports Herself for Driving Drunk" »

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

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

Continue reading "Man Gets DUI in Recliner Chair" »

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

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

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

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

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

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

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

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

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

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

Continue reading "Using Age as Leverage" »

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

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

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

Continue reading "Competency's Role in Executions" »

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

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

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

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

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

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

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

Continue reading "Mother Tracks Down, Rapes Son" »

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

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

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

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On June 4, the senate in Tennessee overrode Governor Bredesen’s veto of HB 0962/SB 1127—the so-called “guns-in-bars law.” The new gun crimes law in Tennessee will take effect on July 14.

Under current Tennessee law, a person cannot possess a firearm in a building open to the public where alcoholic beverages are sold, unless the person is designated to protect customers or is a law enforcement or military officer in “discharge of official duties.” A violation of the current law is a Class A misdemeanor.

The new law adds another exemption for people who have a hand gun carry permit, and

• The person is not consuming alcohol; and


• The establishment is open to the public and serves alcoholic beverages; and


• The establishment does not restrict admission to persons who are age 21 years or older by checking patrons' identifications.

As you can see from reading the revised statute, the “guns-in-bars law” is not as sinister as many would suggest. First, the exemption does not apply to those establishments that check identifications. So, many establishments—especially the bars in downtown Knoxville—will be excluded. Next, the exemption does not apply to permit owners who possess a weapon and consume alcohol. The gun carrying guy who wishes to have a beer at the neighborhood Applebee’s would therefore have to leave his gun in the car.

As is often the case when a new bill is passed, misconceptions and rumors abound that serve to misinform you about your rights and responsibilities under the laws of Tennessee. At Baker Associates, we do everything possible to strengthen our client’s position by staying informed and receiving the most up-to-date training available. If charged with a gun crime in Tennessee, give our skilled Knoxville criminal defense attorneys a call at 866-853-2888 for a free consultation.

On May 19, the Tennessee House passed an amendment to Senate Bill 539, removing language creating two distinct offenses for assault or aggravated assault on a police officer. Instead, the amendment, if passed, would simply double fines. Thus, the fine for assault in Tennessee on a police officer would be $5,000, and aggravated assault would carry a fine of $15,000.

Proponents of the bill say that the dangerous duties performed by officers warrant building a stronger deterrent into the law against attacks upon them. Opponents, like Senator Frank Nicely of Strawberry Plains, say that assault simply comes with the territory. “If you’re going to milk cows, you’re going to get kicked every now and then,” he stated. (Source: Knoxville News Sentinel, May 20, 2009).

What is assault? Under present law, a person commits assault 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.

Aggravated assault generally involves the above unlawful acts plus evidence that the assault caused serious bodily injury; or a deadly weapon was used during the commission of the assault. The new law would simply raise the fines if these offenses were committed against a police officer.

If you have been charged with assault or aggravated assault against a police officer in Knoxville, Pigeon Forge or surrounding areas, you will want an attorney with the skills and experience to build an effective defense. Call the skilled Knoxville criminal assault attorneys at Baker Associates today for a complete case evaluation.

The General Assembly passed a proposal—SJR 127—to amend Article 1 of the Tennessee Constitution. If passed, the amendment could open the door for changes to Tennessee criminal abortion laws. The proposal reads,
“Nothing in this Constitution secures or protects a right to abortion, except in cases involving rape or incest or in cases where the procedure is medically necessary to save the life of the pregnant woman. Nothing in this Constitution requires the funding of an abortion. No person shall perform a partial-birth abortion.”

How might this change existing abortion Tennessee criminal law? By reading the amendment, one might think that it would allow the General Assembly to pass a blanket law banning abortion. Since states are also bound by the Federal Constitution and Supreme Court decisions interpreting the Constitution (particularly Roe v. Wade and Planned Parenthood v. Casey), it is unlikely that the General Assembly would attempt to pass such a bill unless it wanted to launch a full-scale assault on settled federal law. (Given the conservative bent of the Supreme Court, this is not outside the realm of possibility.)

What it might change is the Tennessee Supreme Court decision that struck down a statutory requirement that an abortion must take place in a hospital when it is performed after the first trimester. In coming to this decision, the Supreme Court held that Article 1 of the Tennessee Constitution guaranteed a pregnant woman a right of privacy, which includes the right to have an abortion. Requiring a woman to have her abortion in a hospital, the Court held, violates this right. If the Constitution is changed, however, the reasoning of this case would no longer apply, and law enforcement would be free to enforce the hospital requirement.

On the Internet, as is often the case, there is much misinformation regarding the Amendment. Without publishing the text of the Amendment, Planned Parenthood stated, [i]t is a dangerous, extreme, and deceptive measure [that] makes no exception for rape, incest or health of the mother.” This is absolutely false. When it was initially proposed, the proposal stated that the “people retain the right [to enact legislation under] circumstances of pregnancy regarding rape, incest or health of the mother.” While this could be read as a clandestine effort to open a door to remove the infamous health exception, the revised language shuts this door completely when it states, “except in cases…where the procedure is medically necessary to save the life of the pregnant woman.”

The abortion proposal will be up for a second vote in 2011 when it will have to pass the House by a two-thirds majority. Only then can it move forward to a gubernatorial ballot. While the amendment seems a long way off, the culture war is just heating up. As such, there will be much misleading information on what is and what is not an abortion crime in Tennessee. If you have been charged with such a crime, you will want a criminal defense attorney with the knowledge necessary to help you understand your case. Call the experienced Knoxville criminal defense attorneys skilled in abortion crimes at Baker Associates today so that we can help you mount the best possible defense.

Under present law, first degree murder in Tennessee is:
• A premeditated and intentional killing of another;
• A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
• A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.

Senate Bill 1093 expands first degree murder as homicide crimes in Tennessee by including within the actions that constitute first degree murder the killing of another while committing domestic abuse if there was a past pattern of abuse upon the victim or another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life.

Under Tennessee domestic abuse law, domestic abuse victims include:
• Adults or minors who are current or former spouses;
• Adults or minors who live together or who have lived together;
• Adults or minors who are dating or who have dated or who have or had a sexual relationship,
• Adults or minors related by blood or adoption;
• Adults or minors who are related or were formerly related by marriage.

To constitute extreme indifference to human life, the defendant’s conduct must be so lacking in concern for the lives of others that it warrants the same criminal liability as if the crime was done for the purpose of taking life.

If charged with first degree murder, you are facing the most severe punishments available under Tennessee law. Sentences can include life in prison or even the death penalty. This is why you will want a skilled attorney who has had considerable success in defending people who have been accused of this most serious crime. Call the experienced Knoxville assault attorneys today at Baker Associates for a free and comprehensive case evaluation.

Tennessee State House Representative Joe Town, Jr., recently proposed House Bill 2083, which would criminally penalize anyone who knowingly wears pants below the waistline to show underwear or buttocks. According to KnoxNews.com, similar bills have been proposed in South Carolina and Louisiana.

A first offense yields a Class B misdemeanor, punishable by a fine of 200 dollars and 40 hours of community service. Subsequent offenses go as high as a 1000 dollar fine and 160 hours of community service.

The fiscal summary predicts that the bill will produce over 100,000 dollars. These proceeds are earmarked for new equipment for Tennessee schools.

The Constitutional issues that the new law invokes will likely prevent the “anti-crack” bill from becoming law. The First Amendment, for instance, grants individuals a right to freedom of expression, a concept that just may include fashion. The equal protection clause of the Fourteenth Amendment may also be invoked because the new law may unfairly target minorities—particularly those who live in Shelby county where Representative Towns resides.

The Constitutional concerns of the new bill reveal themselves in a quote by the author of the South Carolina bill, Senator Robert Ford. He stated, “[w]e want Americans to look decent…it doesn’t make sense for anybody to be looking like a thug.”

If you have been charged with a crime in Tennessee, the skilled Knoxville criminal defense attorneys at Baker Associates can help. Call 866-853-2888 for a case evaluation.

The Tennessee Bureau of Investigation Statistics Unit recently released its annual crime report for 2008. The following provides some of the highlights of that report.

Group A offenses dropped 2.9 percent from 2007 with a total of 619,465 crimes. Group A offenses consist of crimes against persons (e.g., murder and assault), property crimes (e.g., burglary and arson), and crimes against society (e.g., drug offenses and prostitution).

Among the Group A offenses, property crimes were in the majority at 61.3 percent. Of these, theft was the most common offense reported (44.4 percent), followed by vandalism (19.3 percent) and burglary (17 percent). Credit card fraud showed the most increase from previous years rising 34.5 percent from 2006. White males committed the majority of all property crimes.

Personal crimes consisted of 27.2 percent of all Group A offenses reported. Of these, simple assault made up a majority (56.4 percent), followed by intimidation (19.4 percent) and aggravated assault (18.8 percent). Murder rounded out the bottom at .02 percent of all Group A offenses reported. White males also committed the majority of these crimes.

Crimes against society (sometimes called “victimless” crimes) consisted of 11.2 percent of all Group A offenses reported. Of these, drug and narcotic violations in Tennessee made up the majority (59.5 percent), followed by prostitution (27.6 percent), and weapons violations (8.6 percent). White males committed the majority of these crimes.

Some surprising statistics in the report:
• Juveniles comprised 10.3 percent of all arrests.
• Crime rate per 100 thousand people was 10,066 for 2008.
• Arrest rate per 100 thousand people was 5,907 for 2008.

If you have been charged for violating any of the crimes referred to above or any other crime, it may be in your best interest to contact a skilled criminal defense lawyer in Pigeon Forge. At Baker Associates, our Tennessee criminal defense attorneys will aggressively defend your rights and ensure that you understand the complexities of your case. Call us today for a comprehensive evaluation.

The criminal and civil trial lawyers at Baker Associates are dedicated to serving the people of Tennessee. The negativity surrounding E. coli has been the recent topic of many news reports and discussions throughout Tennessee and the nation.

First, there was the multi-state outbreak of E. coli O157:H7 infections from spinach. The FDA announced that all spinach implicated in the outbreak was traced back to Natural Selection Foods LLC of San Juan Bautista, California. This determination was based on epidemiological and laboratory evidence obtained by multiple states and coordinated by the Centers for Disease Control and Prevention. The 26 affected states were: Arizona (7), California (2), Colorado (1), Connecticut (3) Idaho (4), Illinois (1), Indiana (9), Kentucky (8), Maine (3), Maryland (3), Michigan (4), Minnesota (2), Nebraska (9), Nevada (1), New Mexico (5), New York (11), Ohio (25), Oregon (6), Pennsylvania (9), Tennessee (1), Utah (17), Virginia (2), Washington (3), West Virginia (1), Wisconsin (49), and Wyoming (1). In addition, Canada had one confirmed case.

After the E. coli spinach scare, taco-bell was host to numerous E. coli O157:H7 infections. The Centers for Disease Control and Prevention reported that the number of people infected with the dangerous O157:H7 strain was more than 70. Most of those cases have been linked to Taco Bells in New Jersey, New York, Pennsylvania and Delaware.

Infection with E. coli O157: H7 causes diarrhea, often bloody. Although most healthy adults can recover completely within a week, some people can develop hemolytic uremic syndrome (HUS), a form of kidney failure. HUS is most likely to occur in young children and the elderly. The condition can lead to serious kidney damage and even death.

Now, the USDA issued a notice about a recall of 21.7 millions pounds of frozen ground beef patties due to E. coli O157: H7 contamination. Only time will tell how many people are injured this time. The corporations that sell these contaminated products are often sued civilly.

Although civil suits may help the victims and family members financially, the responsible people should not be able to hide behind the corporate shield of liability. The companies who profit from the sale of all consumer goods including food products must be held to the highest standards. Food is a necessity, not a luxury. E. coli O157: H7 harms people, and the legislature should consider holding these wrongdoers criminally responsible.

Baker Associates is committed to fighting to protect families and their children. If you or your family has been injured by E. coli O157, consult with one of our attorneys. Our E. coli lawyers handle E. coli cases across Tennessee including Knoxville, Nashville, Memphis, Johnson City, Morristown, Maryville, and Sevierville.

Most people have experienced the frustration of flying. California Representative Bob Filner is no exception. The eight-term encumbent chairs the House Veterans' Affairs Committee, a Committee that has been examining veteran patient care and post-traumatic stress disorders among other issues this term. He allegedly was involved in an altercation with a United Airlines employee at Dulles International Airport Sunday afternoon after his luggage did not arrive in the claims area fast enough.

The Metropolitan Washington Airports Authority police say that Filner attempted to enter an area not authorized to the general public. He then pushed an airport employees outstretched arms and refused to leave.

The employee decided to press charges and appeared before a Loudoun County, Va. magistrate the same evening. Filner is summoned to appear in Loudoun County General District Court on October 2nd to face assault and battery charges. Assault and battery are misdemeanors in Virginia.

Filner is currently on his way to Iraq to visit the troops. His office made a statement late Monday that he would have a full statement about the matter when he returns.

Sources: Foxnews.com
news.yahoo.com

The Atlanta Falcons quarterback and three other individuals were recently charged with competitive dogfighting, training pit bulls for fighting and conducting the operation across state lines. The operation was named "Bad Newz Kennels," according to the indictment, and the dogs were housed, trained and fought at a property owned by Vick in Surry County, Va. The 19-page federal indictment, filed in the U.S. District Court for the Eastern District of Virginia, alleges the 27-year-old Vick and his co-defendants began the dogfighting operation in early 2001.

Although dogfighting is illegal in every state, the severity of the crime differs among the states. Idaho and Wyoming are in the minority making dogfighting only a misdemeanor. All other states have elevated the crime to a felony. According to Tennessee law, it is unlawful for any person to own, possess, keep, use or train any dog for the purpose of fighting. It is further unlawful to be knowingly present, as a spectator, at any place or building where preparations are being made for an exhibition for such fighting, baiting or injuring of any animal, with the intent to be present at such exhibition, fighting, baiting or injuring. Tenn. Code Ann. § 39-14-203 (2007). Noncompliance with the first section of the statute is a Class E felony unless the violation involves a cock. An offense involving a cock is a class A misdemeanor.

If you are facing a criminal charge in Tennessee, it’s important for you to understand the long-term implications of a conviction. A Tennessee attorney can help you deal with your legal options and bring your situation to the best resolution possible for you and your family.

On Tuesday September 26, a McMinn county judge decided to allow the use of potentially incriminating statements against a minister’s wife accused of shooting her husband. The judge has also granted a continuance in the case extending the court date to February 2007. Mary Winkler faces charges in the March 22 shooting death of her husband, a popular Selmer minister.

Mrs. Winkler was arrested in Alabama on March 23. Her Tennessee criminal attorney sought to suppress statements she made to the Alabama authorities. The attorney alleged that the arrest was improper. The attorney also claimed that the authorities had no arrest warrant and no probable cause when the arrest was made.

The body of Matthew Winkler was discovered March 22nd in the home that the couple shared with their three children. The discovery was made after the Winklers failed to show up for an evening church service. Prosecutors have alleged that Mrs. Winkler was moving money between several checking accounts and that the family’s money problems were the motive for the killing. The couple’s children are currently living with relatives. Mrs. Winkler is free on bond and living with a friend in McMinville.

Tennessee criminal defense attorneys have a duty to thoroughly examine every possible suppression issue. As in this case, the courts have to make difficult decisions which have lasting effects on criminal cases.

Source: www.independantappeal.com/html/winkler/

Tennessee attorney Bill Gibson is the chief prosecutor from Cookeville, Tennessee. He is also the attorney that is now under fire for playing both sides of the fence. While he was assisting in the prosecution of a defendant for murder, he also gave advice to the same defendant and did all of this behind the back of the criminal defense attorney and the family of the victim.

An AP article reported:

Much of the conversations between the inmate and the longtime prosecutor are religious in nature and include discussions of faith and requests for prayers. Gibson said he wanted to send Adams Christmas presents while in jail and offered to call Adams' mother for him on Mother's Day.

But the letters from Gibson also warned Adams to keep their correspondence secret.

"I am taking a chance by writing to you without your attorney knowing it," he wrote in an undated letter. "It would mean a lot of trouble for me if you ever mentioned it."

Gibson provided advice to Adams regarding his case, urging him to not plead guilty to a first-degree murder charge.

Any prosecutor finding himself in a similar situation should recuse his office and ask for another prosecutor to be assigned to the case. How could something like this happen? Although some prosecutors could be accused of being over-zealous, has anyone ever seen a prosecutor sand bag for the defendant's benefit.

Tennessee lawyers should be disgusted by the allegations of unethical conduct of Mr. Gibson. These allegations discredit the legal profession and the criminal justice system.