Tennessee Criminal Lawyer Blog

Woman Arrested for Possession of ‘Cute’ Marijuana Plant

Fri, 30 Jul 2010 22:21:07 -0500

When one thinks of the word “cute” certain images spring to mind, such as babies, puppies, teddy bears, and, of course, two-foot tall marijuana plants. At least that is the case if the one doing the thinking is fifty-five year old Jacqueline Moore of Holiday, Florida. Apparently, a neighbor gave her the plant a few months ago, describing it only as a “baby plant.” Thinking the baby plant “cute,” Moore kept the plant and cultivated it until it grew to a height of two feet at which point it became too big for the house, so she placed it out by the curb with the garbage to be hauled off. Unfortunately for Moore, the Pasco County Sherriff’s Office noticed the plant sitting on the curb, knew exactly what it was, and arrested Moore for cultivation of marijuana.

The first thing that jumps out about this situation is that with neighbors like that Ms. Moore probably doesn’t need any enemies. The second thing that jumps out is that there is a very real possibility that Moore had no idea what kind of plant she sat out by the curb. Her lack of knowledge does not seem to have helped her much in Florida but it would actually do her some good in Tennessee, because possession of marijuana must be “knowing” in order to be illegal under Tennessee law. While possession of marijuana naturally gives rise to the inference that a person knew what they were doing, that inference can be overcome in certain situations. For example, if someone sits a two-foot tall illegal drug out with the garbage to be hauled with the trash, it seems pretty obvious that the individual had no clue what they were disposing of. Moore’s lack of knowledge of the identity of the plant is called a mistake of fact and can be used in certain situations by skilled criminal defense attorneys to prove that the defendant did not have the requisite criminal intent to commit the offense with which they are charged. This may enable the defendant to plea down to a reduced charge or possibly avoid conviction altogether.

Source: http://www.big1059.com/cc-common/news/sections/newsarticle.html?feed=104673&article=7388506

Six Pounds of Marijuana Intercepted on the way to Grandma’s House

Thu, 29 Jul 2010 23:56:58 -0500

One of the first rules of shipping illegal drugs would probably be to make sure the package is not suspicious. Thus, it is probably a good idea to use generic named and make the package as nondescript as possible. This strategy is one that can backfire, however, if the names are too generic. As an example of how a sound strategy can go wrong, we need only look to a recent seizure of six pounds of marijuana that was packaged in a box sent by “Grandpa Henderson” from San Diego to “Grandma Henderson” in Talladega. Postal workers immediately suspected the package due to the super-generic labeling and contacted a task force who brought a K-9 over to sniff the package. The dog alerted to the package, so the task force waited to see who came to pick it up. Needless to say, it was not Grandma Henderson that showed up but rather three men who were promptly arrested after picking up the package.

Sometimes even the best laid plans don’t come to fruition and Tennesseans find themselves on the wrong side of the law. Situations like the one described above, where a defendant is seemingly caught red-handed, may seem hopeless but an experienced criminal attorney can assist a defendant in trying to fight the charges regardless of how desperate the situation may seem. For example, possession of drugs with the intent to distribute in Tennessee is a “knowing” offense, so a defendant may be able to claim that he or she did not know what was in the package and thus had no intent to possess the drugs. Likewise, a defendant is often able to contest a search and seizure of a package or container when it isn’t conducted according to the defendant’s constitutional rights. Defendants who find themselves in precarious positions such as the one described above should seek skilled legal counsel in order to be able to present the best defense.

Source: http://news.findlaw.com/ap/other/features/1120/07-29-2010/20100729045007_57.html

Boating Under the Influence

Wed, 28 Jul 2010 21:01:40 -0500

With the blistering summer heat in full swing, Tennesseans flock to the state’s lakes and rivers in search of fun and relaxation and cooling down by any means possible. For many of us, a great day on the water involves skiing, tubing, or other activities that involve the use of a boat. While boating can facilitate many enjoyable activities, it can also become extremely dangerous if the boat is used for the purposes of illegal activities such as speeding or boating under the influence.

Many Tennesseans have no idea that the offense of boating under the influence even exists in the Tennessee Code. Like the DUI statutes, the BUI statutes are classified under a different heading than most criminal offenses, being filed under Title 69 which governs waters, waterways, drains, and levees. In fact, this is not the only similarity the DUI and BUI statutes share. For example, the statutes criminalize the same type of conduct, with the primary difference between the two being where the offense takes place. The BUI statute also contains the same list of prohibited substances: “[…] any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.” Further, the BUI statutory framework also encompasses the concept of implied consent just like the DUI statute. This simply means that by operating a boat on the public waters of the State of Tennessee, a person consents to one or more tests to determine the alcoholic or drug content of the person’s blood. Finally, the BUI statute also includes the caveat contained in the DUI statute that it is no defense that a person is a lawful user of the substance under the influence of which he or she operates a boat.

There are many similarities between the BUI and DUI statutes, but there are also many differences. One difference is the penalties imposed for BUI offenses, which will be discussed in our next blog on this site. Persons who find themselves charged with a BUI offense should contact an experienced criminal defense attorney for advice and assistance in handling the case.

Woman Gets Prison Time for Faking Cancer

Tue, 27 Jul 2010 20:35:39 -0500

A Chattanooga woman named Keele Maynor is facing three years in prison and ten years of probation after pleading guilty to multiple charges of fraud in connection with a scheme in which the lady pretended to have cancer in order to elicit sympathy, favors, and money. The scheme appears to have been a successful one at the outset, with Ms. Maynor reportedly acquiring vacation days from her co-workers, donations from churches and booster clubs, and a fund set up by her friends that she could dip into any time she needed money to battle her illness. All in all, Ms. Maynor received in excess of $50,000 worth of donations as a result of the scheme. As often happens, however, Ms. Maynor started to feel guilty about the situation and eventually confessed to those around her.

Open Container Law in Tennessee

Mon, 26 Jul 2010 23:21:42 -0500

While not technically part of the DUI framework in Tennessee law, the open container law is a criminal offense that is often charged in conjunction with a charge of driving under the influence. The statute itself is pretty straightforward in that it simply prohibits drivers in Tennessee from consuming an alcoholic beverage or beer, or possessing an open container of alcoholic beverage or beer, while operating a motor vehicle in the State of Tennessee.

The terms contained within the statute, however, warrant some examination. An “open container” is basically defined as any kind of container that contains any of the beverages prohibited by the statute if that container allows its contents to be consumed immediately or if the seal is broken. Basically, any bottle or can containing an alcoholic beverage will qualify as an open container if it is, in fact, open. Containers like cups will usually be considered “open” because their contents can be immediately consumed under normal circumstances.

Man Loses License for Drunk Driving in Barbie Car

Fri, 23 Jul 2010 22:20:05 -0500

DUI Statutes

The primary evil that the DUI statutes are designed to prevent is that of a person trying to control some sort of automobile or other machinery on the public roads or highways while intoxicated and thereby posing a danger to themselves or other drivers. However, that doesn’t mean that someone can escape a DUI charge simply by using a less-dangerous means of transportation such as a lawn mower, moped, or even a Barbie car. A man from the UK learned this lesson the hard way when he received a three-year suspension of his driver’s license (partially because he had a prior DUI offense) after being caught operating a Barbie car while intoxicated. The man and his son had reportedly rigged the car, which is capable of reaching speeds up to a screaming four miles per hour, up with bigger tires and he wanted to take it for a test drive. Unfortunately, a grown man stuffed into a Barbie car tends to attract attention and the man was apprehended.

Vehice Seizure in Tennessee

Thu, 22 Jul 2010 19:24:12 -0500

Seizure of a Vehicle

Many Tennesseans each year are subjected to the misfortune of having their vehicles seized by law enforcement, usually in connection with a DUI or drug-related offense. In addition to the two aforementioned offenses, the Tennessee Code designates a number of other offenses which can authorize law enforcement to seize someone's car including transportation of contraband, driving on a revoked license, arson, etc. Although the Tennessee Code states that vehicle seizure is remedial (concerned with behavior-correction) rather than punitive, seizure of a vehicle certainly feels like a punishment for defendants whose cars are taken away and sold to someone else.

Severance

Wed, 21 Jul 2010 19:19:05 -0500

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

Inchoate Offenses: Solicitation

Tue, 20 Jul 2010 16:14:24 -0500

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

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

Inchoate Crimes: Attempt

Mon, 19 Jul 2010 15:23:18 -0500

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

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

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

Voluntary Intoxication

Fri, 16 Jul 2010 14:53:01 -0500

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

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

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

Woman Fakes Car-Jacking in Cover-Up

Thu, 15 Jul 2010 16:50:56 -0500

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

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

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

Voluntary Manslaughter: Provocation

Wed, 14 Jul 2010 15:44:06 -0500

Believe it or not, being convicted of voluntary manslaughter is often good news for many defendants, because it essentially means that they were not convicted of the more serious charge of first-degree murder. Like the more serious homicide offenses, voluntary manslaughter requires that the defendant kill the victim intentionally. The state of mind of the defendant at the time of the commission of the offense, however, is what constitutes the difference between the homicide offenses and will be the key to almost any criminal homicide case where it is clear from the outset that the defendant did indeed kill the victim.

The defining characteristic of voluntary manslaughter is that it requires the defendant to have acted while “in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tennessee law holds that if a person is found to have acted in the heat of passion then he or she could not also have possessed the requisite malice to commit a more serious murder offense. To act in a state of passion requires that a defendant act in the heat of the moment, on sudden impulse of anger due to some sort of adequate provocation (e.g., catching one’s spouse in the act of infidelity) that would motivate an ordinary person to act rashly without deliberating or assessing the situation.

Whether a defendant acted in the heat of passion rather than in a premeditated act of murder is a question for the jury. Thus, it is essential that a defendant in a homicide trial make as compelling a case as possible in order to demonstrate to the jury that he or she was provoked n such a manner as to cause them to act in the heat of the moment. An experienced criminal defense attorney will provide a defendant with the best chance of doing so by making a persuasive and effective presentation to the jury emphasizing the distinctions between voluntary manslaughter and a more serious homicide charge.

Relevant Evidence

Tue, 13 Jul 2010 13:36:33 -0500

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

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

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

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

Hearsay

Mon, 12 Jul 2010 10:08:31 -0500

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

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

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