Category: Content

State of Tennessee v. Stanfield, et al.

State of Tennessee v. Janet M. Stanfield, et al.

No. W2015-02503-SC-R11-CD

Attorney: Jessica Jackson

Criminal Law Journal Member:  Marabeth Kennedy

Full Article PDF: State of Tennessee v. Janet Michelle Stanfield, et al.

The Tennessee Supreme Court recently examined the nuances of the Fourth Amendment with respect to the expectations of privacy of a parolee, a probationer, and a private citizen in the same household during a parole search. The case revolved around defendant Tony Winsett, who lived in a house with defendant Janet Stanfield and her adult son, defendant Justin Stanfield. At the time, defendant Winsett was on parole and defendant Janet Stanfield was on Community Corrections, a form of probation. Justin Stanfield was not subject to any form of supervised release. Acting on a tip from a confidential informant, law enforcement officers went to the residence to conduct a warrantless parole search at the residence. When officers arrived, they saw a burn pile outside the residence containing what they suspected was marijuana residue. No one answered when officers knocked on the door. Officers observed security cameras outside the residence and heard a “running noise” coming from inside the residence. The noise sounded like someone was inside the residence destroying evidence.

Officers entered the residence with a pocketknife. Once inside, they were greeted by a large dog and the odor of marijuana. No people were present. The doors were open to all three of the bedrooms inside the residence. Officers determined that one of the rooms was uninhabitable, one was shared by defendants Winsett and Janet Stanfield, and one belonged to defendant Justin Stanfield. Officers seized a gun, ammunition, clear plastic bags, a set of digital scales, a marijuana pipe, and methamphetamine from the room belonging to defendants Winsett and Janet Stanfield. In defendant Justin Stanfield’s room, officers found marijuana, a handgun, and ammunition. Officers saw defendant Justin Stanfield’s car drive past the residence on the security camera footage that was displayed on the television monitor in one of the bedrooms. A traffic stop was initiated. Defendant Justin Stanfield was read his Miranda rights and placed in custody. He consented to a search of his phone. He also admitted to officers that he sold marijuana, that he received a text during the stop about the purchase of marijuana, and that he would complete the sale.

Shortly thereafter, defendants Winsett and Janet Stanfield were located in a vehicle and stopped by one of the officers. They were placed in custody and read their Miranda rights. During a search of their vehicle, officers seized more than $200 and four alprazolam pills from defendant Janet Stanfield’s purse. Prior to trial, the trial court granted a motion to suppress, dismissing the indictments as to all three defendants. The Court of Criminal Appeals affirmed. The Tennessee Supreme Court granted permission to appeal.

The Tennessee Supreme Court, partially reversing the Court of Criminal Appeals held that: (1) a warrantless search of a parolee’s residence is constitutionally reasonable as long as the totality of the circumstances indicate a valid law enforcement concern for the search; (2) the doctrine of common authority extends the scope of parole searches to areas of a residence over which a parolee has common authority; and (3) doctrine of common authority limits the scope of a parole search of an area within a residence held exclusively by an individual with no conditional release status. As a result, the Tennessee Supreme Court reversed the grant of the motion to suppress with respect to defendants Winsett and Janet Stanfield and affirmed the grant of the motion to suppress and resulting dismissal of the indictment with respect to defendant Justin Stanfield.

In its analysis, the court briefly reviewed the law with respect to Fourth Amendment protection against unreasonable search and seizure before turning to the resolution of the individual issues on appeal with respect to the validity of the warrantless searches.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches and seizures. Tennessee’s constitutional protections regarding searches and seizures are identical in intent and purpose to those in the federal constitution. In evaluating the constitutionality of warrantless searches, the court “evaluate[s] the search or seizure under traditional standards of reasonableness” by balancing an individual’s privacy interests against legitimate governmental interests. Of course, “a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement. The burden is place on the State to show by a preponderance of the evidence, that a warrantless search passes constitutional muster.

In Stanfield, the court examined the validity of the warrantless search of defendant Winsett, the parolee, because it served as the basis for the police presence at the residence.  As a starting point in the analysis, the court noted the parties’ reliance on Turner and Samson. In particular, the State asked the court to provide guidance as to what constituted a legitimate law enforcement concern in the context of a warrantless search of a parolee.  Defendants argued that the search was constitutionally unreasonable, and that the totality of the circumstances did not give rise to reasonable suspicion to support the search.

In Turner, the Tennessee Supreme Court formally determined that a parolee could be “searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers.” The decision in Turner was based in part on the State’s “interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”

With that backdrop in mind, the court reviewed the Parole Certificate signed by defendant Winsett. The document indicated defendant Winsett’s agreement to “a search, without a warrant, of [his] person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time without reasonable suspicion.” Applying Turner to the facts in Stanfield, the court determined that the warrantless search was “constitutionally reasonable” based merely on defendant Winsett’s status as a parolee. In other words, the State did not have to prove reasonable suspicion or probable cause to justify the search. Despite the determination that the warrantless search in defendant Winsett’s case was constitutionally reasonable based merely on defendant Winsett’s release status, the court noted that a warrantless search could be deemed unreasonable if “conducted for reasons other than valid law enforcement concerns.” In order to protect against unreasonable searches, the court examined the totality of the circumstances as an additional “safeguard.” The court, while refusing to place parameters on the definition of a “legitimate law enforcement concern” for a search, noted that the drug activity suspected in defendant Winsett’s case was a valid law enforcement concern.  The court also pointed out that the search did not seek to cause harm, was not predicated on personal animosity, and was not part of a pattern of repetitive searches conducted while the parolee was at work or asleep.

Next, the court reviewed the warrantless search of defendant Janet Stanfield’s possessions located in a bedroom shared with a parolee. The court recognized that defendant Janet Stanfield was on a form of probation, specifically Community Corrections, but based the efficacy of the search of her possessions on the application of the doctrine of common authority rather than a determination of whether the conditions of Community Corrections would have supported a suspicionless, warrantless search of her residence and/or bedroom. Common authority can be shown by “mutual use of the property by persons generally having joint access or control” where the relationship of the people make it such that any one of them “has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” For the first time in Tennessee, the doctrine of common authority was applied “to parole searches of areas of a residence over which a parolee has common authority.” The court found it was the State’s burden to prove the doctrine of common authority applied to the factual scenario, concluding that the proof showed there was no “question” to the officers that defendants Winsett and Janet Stanfield shared a bedroom, thus “law enforcement officers did not err in searching and seizing all items of contraband found in the shared bedroom.” As a result, the court reversed the grant of the motion to suppress with respect to defendant Janet Stanfield, both as to items found in the search of the bedroom and the subsequent search of defendant Janet Stanfield’s person during the automobile stop.

Lastly, the court determined, as a matter of first impression, that the doctrine of common authority did not extend to validate a search of the bedroom of an “individual who is unencumbered by a conditional release status but who resides with an individual subject to such restrictions.” In other words, the court limited the doctrine of common authority.

In this case, the door to defendant Justin Stanfield’s the room was open. There was no evidence that any possessions belonging to defendants Winsett or Janet Stanfield were found in the room. While the police were aware that defendant Justin Stanfield lived at the house, there was no evidence that he was aware of the search conditions related to the parole or probationary status of defendants Winsett and Janet Stanfield or that he was aware that their status or those conditions could impact his constitutional protections. The court, balancing the individual privacy rights against the government interests, recognized that an individual cannot be expected to completely give up privacy expectations in their own bedroom as a result of living with a parolee or probationer, thus limiting common authority.  In other words, the court determined that common authority did not extend to areas under the nonparolee’s exclusive control simply because of proximity to a parolee who has relinquished certain rights as a result of their conditional release status. The court acknowledged and suggested that officers could have and likely should have secured a warrant based on probable cause after smelling marijuana when they entered the house. Because there was no warrant and common authority did not validate the search of defendant Justin Stanfield’s bedroom, the court determined that the evidence was properly suppressed as to defendant Justin Stanfield.

Justice Sharon G. Lee, dissenting in part and concurring in part, expressed disagreement with the majority’s determination that parolee status subjected both defendants Winsett and Janet Stanfield to a warrantless and suspicionless search. In her view, the Tennessee Constitution requires the police to establish reasonable suspicion prior to searching a parolee without a warrant and the facts of the case did not support a finding a reasonable suspicion. The dissent specifically noted the importance of the fact that defendant Winsett did not “voluntarily” agree to give up his constitutional rights but that he was required to sign the parole agreement as a condition of parole. While her opinion is understandable and, certainly arguable, it misses the mark. Defendant Winsett, a convicted felon, was granted parole−something that the court has pointed out is a privilege, not a right. The distinction between a privilege and a right is important, and helps to shape the parameters of government control over an individual on parole status. Justice Lee concluded that because reasonable suspicion had to exist prior to the forcible entry into the home, and the confidential informant’s information about illegal activity at the home was not corroborated prior to the search of the curtilage of the home, the search was illegal. Thus, Justice Lee agreed with the court’s conclusion as to defendant Justin Stanfield, albeit for different reasons.

While at first glance the factual scenario built around a parolee, a probationer, and a regular citizen living together in a residence sounds like the beginning of a well-crafted joke or an idyllic bar exam question, it actually provides the backdrop for the state’s most recent case on the seemingly ever-evolving law of warrantless searches under the Fourth Amendment. While the majority of those citizens most likely lack an unwavering familiarity with all of the amendments encapsulated within the Bill of Rights, the Fourth Amendment is commonly referenced in every day parlance. Even though the Tennessee Supreme Court’s ultimate conclusion is not necessarily a surprising one, it should be noted that the opinion blatantly leaves several hypothetical scenarios unanswered. For example, the Court noted that the outcome of the case could have been different if someone had been home at the time of the search. Additionally, the court refused to consider whether a parole search is “akin” to a consent search or whether the conditions of Community Corrections (the specific type of probationary sentencing applicable to defendant Janet Stanfield) would support a suspicionless, warrantless search of a residence. Perhaps the court is anticipating a case by case approach to this area of search and seizure or, more likely, the court is anticipating that a case or cases more on point with one of those factual scenarios will be presented to the court. To that end, it should be noted that less than a week prior to the release of Stanfield, the Court granted permission to appeal in a case involving a “probation search” of a residence shared by a probationer and a regular citizen. In that case State v. Angela Carrie Payton Hamm and David Lee Hamm, the Court of Criminal Appeals determined that the initial search was not supported by reasonable suspicion and, as a result, declined to address whether the probationer consented to a search of her home as condition of her probation and/or the resulting effect of the application of the doctrine common authority to the validity of the search.  Perhaps some of those unanswered questions in Stanfield will be addressed by the Court in this appeal−stay tuned−this area of the law will certainly continue to develop in the near future.

 

State of Tennessee v. Harbison

State of Tennessee v. Lajuan Harbison

No. E2015-00700-SC-R11-CD

Attorney: Russell Thomas

Criminal Law Journal Member:  Nickolas Schulenberg

Full Article PDF: State of Tennessee v. Lajuan Harbison

LaJuan Harbison, the defendant, was indicted by a Knox County grand jury on four counts of attempted first-degree murder and four counts of employing a firearm during the commission of a dangerous felony. These charges arose out of a shooting incident near the Austin-East high school in Knoxville.  In the same indictment, the grand jury charged Arterious North with four counts of attempted first-degree murder and four counts of employing a firearm during the commission of a dangerous felony, and Laquinton Brown and Carlos Campbell with three counts of attempted first-degree murder, three counts of employing a firearm during the commission of a dangerous felony, two counts of attempted especially aggravated robbery, and two counts of attempted aggravated robbery.   On Sept. 7, 2012, around 4:30 p.m., the Defendant was driving toward Austin-East high school when he noticed another car had pulled over and its occupants were accosting a group of students standing on the side walk.  Campbell was driving the car, Brown was a front-seat passenger, with two others in the back seat of the car.  Brown stepped out of the car to approach the students and asked which one of them “had thrown up a gang sign (using a hand gesture).” With the butt of his hand gun showing, Brown ordered the students to empty their pockets.

Witnesses, including an Austin-East high school teacher driving a car, her daughter riding as a passenger, and a Knoxville Area Transit bus driver, testified that they thought the occupants of the Campbell car were robbing the students, who raised their hands and emptied their pockets.  The Defendant stopped his car, and he and North fired hand guns at the Campbell car.  Brown pulled out a gun from Campbell’s car, and along with passengers in that car, returned fire.  After a brief exchange of gun fire, the occupants reentered their respective cars and sped away.  During the altercation, a gun fired by a passenger in the Defendant’s car seriously wounded one of the by-stander students.

The trial court granted Campbell’s and Brown’s motions for acquittal on one charge of attempted especially aggravated robbery of minor L.P. (by violence) and one charge of attempted aggravated robbery of minor Q.T. (by violence). The trial court partially granted Campbell’s and Brown’s motions for acquittal on one charge of attempted especially aggravated robbery of L.P. (by putting in fear) and one charge of attempted aggravated robbery of Q.T. (by violence) and reduced the charges to two counts of aggravated assault. The basis for the trial court’s action was the lack of proof that Brown intended to take anything from L.P. or Q.T.

A jury convicted the Defendant of four counts of attempted voluntary manslaughter and four counts of employing a firearm during the commission of a dangerous felony.  The Court of Criminal Appeals reversed the convictions and remanded for a new trial, holding that the trial court erred in denying the Defendant’s request for a separate trial, stating that his multiple convictions for employing a firearm during the commission of a dangerous felony violated the prohibition against double jeopardy, and that the evidence was insufficient to support one of the counts of attempted voluntary manslaughter and employment of a firearm during the commission of a dangerous felony.

The Tennessee Supreme Court granted the State’s application for permission to appeal to determine (1) whether the trial court properly exercised its discretion by denying the Defendant’s motion for severance; (2) whether the Defendant waived the double jeopardy issue; and if not, (3) whether the Defendant’s convictions for employing a firearm during the commission of a dangerous felony violate the prohibition against double jeopardy when he used one firearm but was convicted of multiple dangerous felonies against different victims.

The Defendant, who was only aged 18 at the time of the offense, previously attended Austin-East high school and personally knew minors Q.T. and L.P.  Just before the shooting started, the Defendant stopped his vehicle near Austin-East High School after seeing an approaching school bus in the opposite lane extend its stop sign. When the Defendant saw L.P. and Q.T. hold up their hands, the Defendant believed Brown was robbing them. As Brown stepped back towards Campbell’s vehicle, the Defendant saw Brown draw a handgun and fire a shot. The Defendant pulled his gun and fired it twice into the air. The Defendant claimed he fired his gun only to protect L.P. and Q.T. and to prevent Brown from robbing them. He said he did not intend to harm anyone. After the Defendant fired into the air, he heard “shots coming up out of – from everywhere.” The Defendant, North, and other passengers began firing their weapons. As the Defendant drove away, he continued to hear gunfire coming from behind him.

The Defendant argued that the trial court should have granted a severance because of the overt hostility between him and two of his co-defendants and courtroom spectators, the mutually antagonistic defenses, and his inability to present his defense.  Second, the Defendant argued that the trial court’s denial of a severance resulted in the admission of “lurid testimony and videos about guns, unindicted bad actors, and other crimes unrelated to the Defendant and irrelevant to his charges.” Further, the Defendant argued that a severance was necessary to avoid prejudice from evidence that would not have been admitted had the Defendant’s trial been severed from his co-defendants.

The Tennessee Supreme Court held that the trial court did not abuse its discretion in denying the Defendant’s request for a separate trial.  In Tennessee, two or more defendants may be charged in a single indictment when conspiracy is not charged and all of the defendants are not charged in each count, if the offenses charged were part of a common scheme or plan or were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others. A defendant may seek a severance under Tenn. R. Crim. P. 14(c)(2), which requires a trial court to grant the request if severance is found to be appropriate to promote a fair determination of guilt or innocence of one or more defendants.

When two or more defendants are charged in the same indictment, evidence that is not necessarily applicable to another defendant may be admissible against one or more defendants. A defendant is not entitled to a separate trial merely because damaging proof is introduced against another defendant.  Hostility between defendants, attempt to cast blame on each other, finger-pointing, and tattling do not necessarily require a severance. Potential hostility among codefendants exists when an indictment charges each co-defendant as a perpetrator of offenses against other codefendants. Mutually antagonistic defenses among codefendants may be the basis for granting a severance in some circumstances but are not per se prejudicial.  A severance should not be granted simply because there is a disparity in the evidence against the defendants, or a speculative risk of a spill-over effect from a codefendant’s prior bad acts.

The court also addressed whether the Defendant preserved a challenge based on double jeopardy to his multiple convictions for employing a firearm during the commission of a dangerous felony by raising the issue in the trial court and the Court of Criminal Appeals. The State argued that the Defendant waived any challenge by not raising the issue in his motion for new trial and appellate brief.

In deciding whether a party has waived an issue on appeal, an appellate court should carefully review the record to determine whether a party is raising an issue for the first time on appeal.  A party does not waive an issue by phrasing it differently in the trial court than on appeal.  The phrase, unit of prosecution, is uniquely associated with claims of error based on double jeopardy.  Tennessee recognizes two types of single prosecution, multiple punishment claims: multiple description claims and unit-of-prosecution claims. A multiple description claim is one in which a defendant convicted of multiple criminal offenses under different statutes alleges that the convictions result in double jeopardy because the statutes punish the same offense. A unit-of-prosecution claim arises when a defendant convicted of multiple violations of the same statute asserts that the multiple convictions are for the same offense.

At trial, the Defendant filed a motion for a new trial and two amended motions.  The Supreme Court interpreted the Defendant’s argument to mean that the Defendant was claiming that he was overcharged and convicted of multiple violations of Tenn. Code Ann. § 39-17-1324 based on a single act of employing one firearm.  Although not well-stated, the disputed issue was whether the proper unit of prosecution was the act of employing the firearm or the act of committing the underlying dangerous felony. The Defendant focused on his use of a single weapon, while the State emphasized the multiple underlying dangerous felonies. Whether the Defendant waived the issue of double jeopardy was a close question given his failure to use the phrase “double jeopardy” or “unit of prosecution” in the trial court.  The Court held the Defendant had not waived the issue of double jeopardy on appeal.

Tenn. Code Ann. § 39-17-1324(b) makes it a criminal offense to employ a firearm during the: (1) commission of a dangerous felony; or (2) attempt to commit a dangerous felony.  A “dangerous felony” is defined to include numerous offenses, including attempt to commit first-degree murder and attempt to commit voluntary manslaughter.  A violation of § 39-17-1324(b) is a specific and separate offense, which shall be pleaded in a separate count of an indictment or presentment and tried before the same jury and at the same time as the dangerous felony. Any sentence imposed for violation of § 39-17-1324(b) must be served consecutive to any other sentence imposed for the conviction of the underlying dangerous felony.

The Tennessee Legislature intended the unit of prosecution for Tenn. Code Ann. § 39-17-1324 to be each act of employing a firearm during the commission of or attempt to commit a dangerous felony.  The Tennessee Supreme Court held that the Defendant’s multiple convictions for employment of a firearm during the commission of a dangerous felony do not violate the prohibition against double jeopardy.  The Supreme Court reversed the judgment of the Court of Criminal Appeals, reinstated the Defendant’s three convictions for attempted voluntary manslaughter and three convictions for employment of a firearm during the commission of a dangerous felony, and remanded the case back to the trial court for resentencing and corrected judgments.

The Court’s decision will make it more difficult for defendants to obtain separate trials even when evidence of one defendant’s crimes may be irrelevant to the charges against another defendant.  The Court also clarified that double jeopardy does not bar Tenn. Code Ann. § 39-17-1324 from applying to using a firearm in each instance of a dangerous felony, which in this case was four attempted voluntary manslaughters.

State of Tennessee v. Lowe

State of Tennessee v. Lindsey Brooke Lowe

No. M2014-00472-SC-R11-CD

Attorney: Jennifer Hartsell Stockdale

Criminal Law Journal Member:  Lovin Middleton-Dunn

Full Article PDF: State of Tennessee v. Lindsey Brooke Lowe

On September 12, 2011, the Defendant, Lindsey Lowe, gave birth to twin boys. She had concealed her pregnancy from her family and fiancé and gave birth to the twins, unassisted, in her bathroom. After the births, she placed her hand over each infant’s mouth to stifle his cries and smothered each infant to death. She hid both bodies in her laundry basket. Lowe called in sick to work on the following day but reported to work as usual on September 14. After the Defendant left for work, her mother discovered one of the bodies in the laundry basket. Lowe’s father contacted police, who came to the residence and determined that the infant was dead.

After Mr. Lowe reportedly consented to police searching the house, Detective David Harrell was instructed to obtain a search warrant. He prepared the necessary paperwork, including three copies of the proposed warrant, and went before Judge C.J. Rogers at the Circuit Court in Sumner County. Judge Rogers signed and issued three copies of the search warrant at 11:35 AM. Two copies of the search warrant stated that the date and time at which the warrant was delivered was “11:35 o’clock AM, on this 14 day of Sept, 2011,” but the third copy stated that the time of delivery was “11:35 o’clock PM, on this 13 day Sept, 2011.” At 12:34 PM, after obtaining the warrant, police began searching the Lowe residence. They collected a laundry basket and its contents, bloody linens and clothing, a thumb drive from the Defendant’s bedroom, and several computers and computer components. They also took photographs and conducted testing for the presence of blood in the Defendant’s bedroom and bathroom. Once the search was complete, Detective Harrell left one of the copies of the warrant marked “AM” on the kitchen counter. The copy containing the “PM” notation was returned and filed with the trial court on September 21, 2011.

While Detective Harrell obtained a warrant to search the Defendant’s home, Detective Malach traveled to the Defendant’s place of employment. He testified that the Defendant was in a good mood when he first arrived and stated she did not know why he was there. After telling her that police found the laundry basket, her mood became more serious. He explained that he wanted her cooperation in ascertaining what happened and for her to come to the police station with him, but it was her choice whether to do so. He “went over” her Miranda rights at this time and stated that, if she chose to go with him, he would formally provide her Miranda rights at the station. The Defendant agreed to accompany Detective Malach to the station. During the ride, she was not handcuffed and rode in the front passenger seat of his patrol car. They talked about “normal” things during the drive, not discussing any matters related to the dead infant. When they arrived at the station, Detective Malach asked the Defendant to wait on a bench in the hallway. She remained on the bench for thirty minutes, unrestrained and unaccompanied, with her purse and cell phone. Detective Malach videotaped his ensuing interview of the Defendant. He read the Defendant her Miranda rights, which she orally waived. She asked if she should have an attorney and, after being told that it was not mandatory, she agreed to proceed with the interview without an attorney present. The Defendant confessed to smothering the two infants, placing their bodies in a laundry basket, and cleaning up the bathroom before her sister used it.

Prior to trial, the Defendant moved to suppress the evidence obtained pursuant to the search warrant as well as her statement to Detective Malach. After holding evidentiary hearings, the trial court denied both motions. The jury subsequently convicted the Defendant on all counts, and the trial court sentenced her to two terms of life imprisonment and two terms of twenty-five years. The Tennessee Court of Criminal Appeals affirmed the trial court’s judgment.

The Tennessee Supreme Court granted the Defendant’s application for permission to appeal to address the following issues: 1) whether the Exclusionary Rule Reform Act (the “ERRA”) violates the Tennessee Constitution; 2) whether the trial court erred by relying on the ERRA to deny the Defendant’s motion to suppress the evidence gathered at her house; 3) whether the trial court erred by ruling inadmissible certain expert testimony proffered by the Defense during the evidentiary hearings; 4) whether the trial court erred by denying the Defendant’s motion to suppress her statement; and 5) whether the trial court erred by prohibiting the Defendant’s expert witness from testifying at trial about the reliability of her responses to the Detective’s questions. Additionally, the Court directed the parties to address whether the good-faith exception to the exclusionary rule should be expanded to include clerical errors made by the issuing magistrate when the search at issue is otherwise constitutional.

The Court first considered whether the ERRA unconstitutionally violated the Tennessee Constitution’s Separation of Powers Clause. The Court found that the ERRA was not, as the State had urged, an attempt to “supplement” Tennessee Rule of Criminal Procedure 41; rather, the ERRA represented an “impermissible encroachment” by the legislature upon the Court’s authority and responsibility to adopt exceptions to the exclusionary rule. Because the ERRA specifically conflicted with the Court’s exclusionary rule holdings, as well as with the express language of Rule 41 promulgated by the Court, the Court held that the ERRA violated the Tennessee Constitution’s Separation of Powers Clause. The Court therefore concluded that the trial court erred when it denied the Defendant’s motion to suppress in reliance on the ERRA.

The Court next considered whether Tennessee courts should apply the exclusionary rule to suppress evidence gathered at the Lowe residence under a search warrant with technical defects not conforming to the requirements of Rule 41. After noting that the Court recently had adopted a good-faith exception to the exclusionary rule in a case where the law enforcement officer executed a warrant in good faith but the warrant later was determined to be invalid by a technical defect, the Court expanded the good-faith exception to the exclusionary rule to include clerical errors made by a magistrate issuing a search warrant when the search in question is otherwise constitutional. In applying the expanded good-faith exception, the Court held that evidence gathered at the Lowe residence pursuant to the search warrant should not have been suppressed pursuant to the exclusionary rule, despite technical defects in the search warrant; the defects were the result of a magistrate’s good faith error incorrectly indicating on one of three copies of the warrant that it was issued at 11:35 PM rather than 11:35 AM, and the search was otherwise constitutional.  The Court therefore affirmed, but on different grounds, the trial court’s denial of the Defendant’s motion to suppress the evidence gathered from the Lowe residence.

Regarding the other issues brought on appeal, the Court held that, although the trial court should have permitted defense counsel to proffer the testimony in a question and answer format, the court did not err when it ruled inadmissible the defense expert’s testimony at the hearing on the Defendant’s motion to suppress because the record contained “a sufficient summation of Dr. Auble’s expected testimony” that the Court could determine whether the ruling was appropriate. The Court also agreed with the lower courts that the Defendant was not in custody at the time she made her statement to Detective Malach so any alleged defects in the administration of her Miranda rights were moot, and the trial court did not commit reversible error in finding certain proffered expert testimony by a defense witness inadmissible on grounds that the foundation of the witness’s testimony turned on his unsubstantiated opinion about what Detective Malach was thinking during his interview of the Defendant.

 

A valid search warrant must comply with the United States Constitution, the Tennessee Constitution, and Tennessee statutory requirements. Under both the Tennessee and federal constitutions, when a search is declared to be illegal, the evidence obtained as a result of the search cannot be used by the State pursuant to the exclusionary rule. Tennessee Rule of Criminal Procedure 41, adopted in 1978, sets forth precise requirements for issuing a search warrant, including a requirement that the magistrate “shall endorse on the search warrant the hour, date, and name of the officer to whom the warrant was delivered for execution.” If a magistrate does not comply, Rule 41—as it existed at the time the search warrant was issued in Lowe’s case—directed a court to grant an aggrieved party’s motion to suppress the evidence seized as a result of the noncompliant warrant.

In United States v. Leon, the United States Supreme Court created a good-faith exception to the exclusionary rule. This exception permits the State to use evidence if it was seized in reasonable, good-faith reliance upon a search warrant subsequently found to be defective. Under the federal good-faith exception, judges have broad discretion to decide if police intentionally violated a suspect’s rights or acted in objective good faith believing they had taken all steps required for a valid warrant and acted within its scope.

For years, Tennessee courts refused to adopt the good-faith exception created by the United States Supreme Court in Leon, maintaining that Tennessee’s constitution affords its citizens greater search and seizure protection than does the United States Constitution. For example, in 2010, in State v. Hayes, the Tennessee Court of Criminal Appeals invalidated a search warrant that incorrectly indicated it was issued at 10:35 PM rather than at 10:35 AM, finding that the warrant failed to strictly comply with the search warrant requirement that the endorsed date and time of issuance be correct. The court’s decision was consistent with the court’s prior strict interpretation of Rule 41.

In 2011, the Tennessee legislature created a statutory good-faith exception that applied only in cases involving “clerical errors” or “clerical omissions.” Effective July 1, 2011, under the ERRA, evidence obtained by a search warrant would not be suppressed if the court determined the violation was a result of a good-faith mistake or a technical violation of the law made by a law enforcement officer, court official, or the issuing magistrate. The ERRA significantly weakened the protections afforded by the exclusionary rule in Tennessee.

In applying the ERRA in State v. Pruitt, Tennessee’s highest court allowed the introduction of evidence in a defendant’s murder trial that had been obtained based on search warrant containing two different dates in violation of Tennessee Rule of Criminal Procedure 41. The executing officer testified that the warrant was not executed until magistrate was finished issuing it, testimony the trial court found credible. The Tennessee Supreme Court agreed, describing the error as “a textbook example of unintentional clerical error made during the preparation of a search warrant.”

Five years later, the Tennessee Supreme Court signaled its willingness to consider a common law good-faith exception to the exclusionary rule in State v. Reynolds, where police took a warrantless blood draw without the defendant’s consent following an accident that resulted in two fatalities and injuries to defendant and the other passenger. While agreeing with the lower courts that the warrantless blood draw violated the Fourth Amendment and Tennessee Constitution’s prohibition against unreasonable search and seizure, the Supreme Court adopted a narrow good-faith exception to the exclusionary rule, preventing exclusion of evidence obtained in violation of a suspect’s constitutional rights when law enforcement officers act “in objectively reasonable good-faith reliance” on binding appellate precedent that specifically authorizes a particular police practice which is later overruled. Applying this newly adopted good-faith exception, the Court held that the Reynolds draw came within the exception because the deputy reasonably relied on binding precedent in effect at time of accident. Notable was the dissenting opinion of Justice Sharon G. Lee, writing that the adoption of the good-faith exception to the exclusionary rule “erodes our citizens’ rights to be free from unreasonable searches and seizures as guaranteed by the United States and Tennessee Constitutions.” Justice Lee further wrote: “Although the United States Supreme Court has adopted a good-faith exception, we have the authority to provide the citizens of our state with greater protections, and I submit we should do so in this case.”

Just over a month after Reynolds came the highly-publicized case of State v. Davidson, in which Davidson was sentenced to death for the brutal murders of Channon Christian and Christopher Newson in Knoxville, Tennessee. In Davidson, the lead investigator accidentally cut off his signature when faxing a search warrant affidavit for Davidson’s residence, and the magistrate did not notice the missing signature.  After the investigator took an oath and swore to the contents of the affidavit before the magistrate, the magistrate signed the warrant, which law enforcement officers then used to search Davidson’s house. There they discovered Christian’s body inside a trash can in Davidson’s kitchen.

Noting that neither the Fourth Amendment of the United States Constitution nor Article I, Section 7 of the Tennessee Constitution requires an affidavit, the Tennessee Supreme Court found that the warrant was valid under both the state and federal constitutions. The Court acknowledged, however, that the warrant violated the affidavit requirements of Tennessee Code Annotated §§ 40-6-103 and 40-6-104 and Tennessee Rule of Criminal Procedure 41(c)(1), which require an affidavit containing the signature of the affiant. Adopting and applying a common law good-faith exception to the exclusionary rule in cases where “an officer has complied with constitutional requirements to obtain a warrant, but in good faith failed to comply with the state statutory and rule affidavit requirements,[,]”  the Court, in an opinion authored by Justice Sharon G. Lee, found that the trial court had not erred in denying Davidson’s motion to suppress the evidence obtained from the search of his house. In a footnote, the Court noted that Justice Lee had dissented in Reynolds “on the basis that a good-faith exception was not appropriate to excuse a constitutional violation but agrees that Rule 41(g) cannot be read to divest this Court of its power to develop and adapt common law principles and their application.”

After Reynolds and Davidson, and with the composition of the Court shifting from a panel of predominantly Democratic appointees to one with a majority of Republican appointees, the Court seemed poised then, in Lowe, to embrace a wholesale good-faith exception. After determining in Lowe that the ERRA violated the Tennessee Constitution’s Separation of Powers clause, the Tennessee Supreme Court created a good-faith exception to the exclusionary rule where “a good-faith clerical error” of an issuing magistrate resulted in technical defects in the search warrant when the search is otherwise constitutional.  In applying that exception, the Court declined to suppress the evidence found at Lowe’s residence due to “an inconsequential variation between three copies of a search warrant required pursuant to Rule 41.” On the same day, the Court decided the Williamson County case of Angela Faye Daniel, who was not given a copy of the search warrant authorizing her blood to be drawn. Noting the Court’s “recent willingness to create narrow good-faith exceptions to Rule 41’s exclusionary rule where the deviations from that Rule’s stringent requirements are inadvertent, inconsequential, and clearly resulted in no prejudice to the defendant,” the Tennessee Supreme Court reversed the trial court’s decision to exclude evidence obtained from the blood sample, finding that a good-faith exception to the exclusionary rule applied, even though the defendant was not given a copy of the warrant as required by Rule 41. The Court noted that the officer’s failure to give the defendant a copy of the search warrant was due to an inadvertent oversight and the technical noncompliance did not prejudice Daniels.

In Lowe, the error arose during the preparation of the search warrant; in Daniels, the error arose after the warrant was issued. In Lowe, the error was the inadvertent clerical error of the issuing magistrate; in Daniels, the error was the inadvertent clerical error of the executing officer. In both cases, the Court found that the search was otherwise constitutional and the defendant was not prejudiced as a result of the technically noncompliant search warrant. The Court’s adoption of these good-faith exceptions to the exclusionary rule brings state common law more in line with the federal good-faith exception created in Leon.

Although the state’s highest court did not embrace a wholesale good-faith exception in Lowe, the Reynolds, Davidson, Lowe, and Daniels decisions taken together, all carving out good-faith exceptions to the exclusionary rule without relying on the ERRA, underscore the Court’s willingness to move in that direction. Notably, effective July 1, 2018, on the eve of the Lowe and Daniels decisions, the Tennessee Supreme Court amended Rule 41 to grant trial courts the discretion to determine whether to exclude evidence gathered pursuant to a search warrant that fails to comply with Rule 41.

After Lowe and the amendment to Rule 41, the Tennessee criminal defense bar likely is taking notice, as it appears that Tennesseans can no longer boast that their state constitution and statutory law provide greater protections for citizens to be free from unreasonable searches and seizures than those protections guaranteed by the United States Constitution.

State of Tennessee v. Patterson

State of Tennessee v. Kevin Patterson aka John O’Keefe Varner aka John O’Keefe Kitchen

No. M2015-02375-SC-R11-CD, 538 S.W.3d 431 (Nov. 30, 2017)

Attorney:  Liz Tipping

Criminal Law Journal Member:  Tim Sweatman

Full Article PFD: State of Tennessee v. Kevin Patterson

In July 2015, a jury found defendant John O’Keefe Varner guilty of attempted second-degree murder, aggravated assault, and felon in possession of a firearm. At the sentencing hearing in September 2015, the trial court sentenced Defendant to life in prison without the possibility of parole. The sole issue before the Tennessee Supreme Court was whether the State provided sufficient notice under the “three strikes law” that it intended to seek a sentence of life without parole.

The Defendant met the victims in early February 2013. The victims, Brandi Frazier and Scott Wilfong, had intervened after Defendant dragged his girlfriend from a vehicle by her hair and hit her. When Defendant turned on Ms. Frazier, Ms. Frazier struck him on the head with a bottle. Defendant and the two victims briefly argued before their exchange was over.

Not long after this first interaction, on February 9, 2013, the victims were meeting at an acquaintance’s house. Defendant arrived and insisted that he and Mr. Wilfong had “unfinished business.” Believing Defendant intended to fight, Mr. Wilfong went outside to confront him. Defendant had a gun and shot Mr. Wilfong in the hip. Mr. Wilfong escaped before Defendant could shoot him again.

At the sound of the gunshot, Ms. Frazier ran outside. Defendant aimed his gun at Ms. Frazier, but instead of shooting her, he hit her in the face. Defendant ran to his truck, got in, and drove away. He fled to Las Vegas after the shooting and was not arrested until a year and a half later.

After Defendant was arrested, on January 1, 2015, the State filed a document with the title: “Notice of Prior Convictions,” which gave Defendant notice of the convictions that it planned to use “to impeach the defendant’s testimony, and/or to enhance the defendant’s punishment.” The notice continued: “The State of Tennessee also hereby gives notice to the defendant of its intent to seek to have him declared as a Repeat Violent Offender pursuant to T.C.A. § 40-35-120.” It then listed a number of Defendant’s convictions dating back to 1985.

At trial in July 2015, the parties stipulated that Defendant had been convicted of a felony prior to February 2013, and that this conviction prohibited him from possessing a firearm. Defendant was convicted of attempted second-degree murder, aggravated assault, and being a felon in possession of a firearm.

The trial court conducted a sentencing hearing on September 23, 2015, at which the prosecution entered certified copies of judgments showing Defendant’s convictions of second-degree murder in 1994 and facilitation of second-degree murder in 1992. The trial court confirmed with defense counsel that the defense had no objection concerning the accuracy of Defendant’s prior criminal record. The trial court then ruled that it had “no choice” but to sentence Defendant to life in prison without the possibility of parole under the three strikes law set forth in Tenn. Code Ann. § 40-35-120.

Defendant appealed (without challenging his sentences), and the Court of Criminal Appeals affirmed the convictions. However, two judges of the Court of Criminal Appeals sua sponte found that the State’s notice of intent to sentence Defendant as a Repeat Violent Offender was inadequate because it (a) failed to sufficiently describe the nature of Defendant’s prior qualifying convictions, and (b) failed to list the dates of the separate periods of incarceration. As a result, the Court of Criminal Appeals found that “the document filed by the State did not qualify as notice pursuant to the repeat violent offender statute.” The Court of Criminal Appeals set aside the sentence of life in prison without possibility of parole and remanded for resentencing.

The Supreme Court explained that Tennessee’s criminal statutes provide for enhanced sentences when a defendant is a “multiple, persistent, career [or] repeat violent offender[].” When seeking to enhance a defendant’s sentence due to any of these classifications, the State must provide notice of its intent to do so. As the language of the statutory notice requirement for a “Repeat Violent Offender” (the classification applied to Defendant) is similar to the language for these other classifications, the Court looked to cases interpreting the notice requirement for the other classifications.

Quoting its 1990 opinion in State v. Adams, 788 S.W.2d 557, the Court explained that the purpose of the statutory notice requirement for multiple, persistent, or career offenders is to “provide[] defendants with fair notice of their exposure to enhanced sentencing, order[] plea-bargaining, enable[] defendants to make informed decisions before pleading guilty, aid[] defendants in developing trial strategy and preparing for sentencing hearings, and assist[] defendants in evaluating the risks and charting a course of action before trial.” In evaluating statutory notices, the Court has recognized that embedding information inside an unrelated document is problematic and has instructed that the preferred method is to file separate documents with proper captions.

When interpreting the statutory notice requirement for multiple, persistent, or career offenders, the Court has not required strict compliance. However, the Court has held that when a notice fails to provide any of the statutorily required relevant information, the notice is ineffective and cannot support imposition of an enhanced sentence. The State must substantially comply with the notice requirement, and then if there is ambiguity in the notice, the burden shifts to the defendant to seek additional information. The Court has declared that “fair notice” is required, not “perfect notice.”

Turning to the statutory language for the Repeat Violent Offender notice requirement, the Court explained that the State is required to “file a statement with the court … [that] shall set forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.” Failure to provide any notice at all precludes the State from seeking enhanced sentencing as a Repeat Violent Offender.

The Court applied the principles it found in the cases interpreting the sufficiency of State notice for multiple, persistent, or career offenders. The Court concluded that under the Repeat Violent Offender statute, the State must provide at least some notice of intent to seek enhanced sentencing prior to trial. The “better practice” is to provide notice by a separate, properly captioned document and not to include the notice in a document addressing several subjects. However, since the statute does not prescribe a particular form, the Court declined to mandate one.

The Court stated: “The form of the notice alone will almost never be a sufficient basis for precluding the State from seeking enhanced sentencing.” The notice need not be perfect, but it must be fair. If the notice substantially complies with the statute but leaves some question, “an accused has a duty to inquire about an ambiguous or incomplete notice and must show prejudice to obtain relief.”

The Court declined to adopt Defendant’s argument that the State must strictly comply with the statutory notice requirement. It found that the State had timely provided Defendant of notice of its intent to seek enhanced sentencing as a Repeat Violent Offender. Although the notice contained errors (and even omissions), the Court concluded that the State’s notice, “albeit imperfect, was sufficient to trigger the defendant’s duty to inquire into the omitted and incorrect information.” Defendant failed to make any such inquiry. Therefore, the Court reversed the decision of the Court of Criminal Appeals and reinstated the Repeat Violent Offender enhanced sentence.

The Court’s decision in Patterson clarifies both the State’s and the defendant’s duties under the Repeat Violent Offender statute. The Court expressly stated that it did not endorse the State’s failure to comply strictly with the notice requirement. At the same time, the Court found that the State’s notice was sufficient to trigger Defendant’s duty to inquire into the errors and omissions.

While it is valuable to have this clarification, the Court’s conclusion is not surprising. As described above, the Court in Patterson followed decisions by Tennessee’s appellate courts regarding the notice requirements of enhancement statutes. Additionally, other aspects of the Repeat Violent Offender statute suggest that the Legislature did not intend that the State’s notice obligations be strictly construed. For example, if the State’s notice is untimely, the statute provides that a defendant shall be granted a continuance, rather than dismissal of the Repeat Violent Offender enhancement. And the Legislature has stated more than once that one of the principles and purposes in sentencing under Title 40, Chapter 35, is to protect society and prevent crime by “restraining defendants with a lengthy history of criminal conduct.” Furthermore, the liberal construction of the State’s obligations under Tenn. Code Ann. § 40-35-120(i) is consistent with other states’ interpretations of their own “three strikes laws.”

The “three strikes laws” operate to lengthen sentences for recidivist defendants—those who have already demonstrated that a standard period of incarceration is ineffective for their rehabilitation. In Patterson, the Supreme Court joined many courts around the country that have concluded that as long as a defendant is provided “fair notice” that he is facing a possible enhanced sentence, the purpose of the notice requirement in these statutes is met. Thanks to Patterson, we know that a defendant can expect only “fair notice,” not “perfect notice,” under the Repeat Violent Offender statute.

 

 

 

State of Tennessee v. Clayton

State of Tennessee v. Sedrick Clayton

No. W2015-00158-SC-DDT-DD

Attorney: Amanda Gentry

Criminal Law Journal Member: Kendahl Shoemaker

Full Article PFD: State of Tennessee v. Sedrick Clayton

On the morning of January 19, 2012, around 12:40 a.m., Defendant, Sedrick Clayton, entered the home of former girlfriend, Pashea Fisher. According to Pashea’s brother, A. Fisher, who had been sleeping on the couch of the family’s living room, he could hear loud voices coming from the end of the hallway. The voices belonged to Pashea and Clayton. Their argument led to a “tussle in the hallway.” Pashea walked down the hall toward their parents’ bedroom, entered the bedroom and locked the door behind her. A. Fisher heard yelling followed by gunshots. Based on the evidence, including a wood splinter lodged in Pashea’s pants, Lieutenant Mullins, testifying as an expert in blood stain pattern, opined that at this point in the night, Pashea was first shot in the leg when Clayton began shooting through the bedroom door.   Clayton used his shoulder to break down the bedroom door and forced his way in.  The large pool of blood on the floor evidenced that the father was shot before the mother. The blood trail from the parents’ bed to the bedroom door evinced that the mother was first shot on the bed, and then again by the door. After the shooting of the parents, the Defendant Clayton dragged Pashea from the end of the hallway to the front of the house. He threatened to shoot her in the head, which he did before leaving the premises. Before leaving, however, Clayton fired his gun in the general direction of the sofa, knowing that Fisher usually slept there.

Later that morning, at approximately 7 a.m., Clayton contacted the police station to inform them that he was turning himself in and was willing to give a statement. Before the lieutenant could review the Advice of Rights with Clayton, Clayton began making a statement, beginning with an apology. The officers tried to interrupt Clayton to review the Advice of Rights, which they did completely. During his statement, Clayton never asked to stop the interview and never asked for an attorney. The jury ultimately found the defendant guilty of all counts in the indictment, which included three counts of first-degree murder and one count of attempted first-degree murder.

During the penalty phase, based on the evidence, the jury found two aggravating circumstances beyond a reasonable doubt for each of the three victims of first-degree murder: (1) Clayton “knowingly created a great risk of death to two or more persons, other than the victim murdered, and (2) Clayton committed mass murder. The jury sentenced Clayton to death for all three convictions of first-degree murder. The Tennessee Supreme Court held, affirming the Court of Criminal Appeals, that: (1) the evidence was sufficient to support the jury’s findings that Clayton acted with premeditation in commission of the offenses; (2) Clayton waived his Fourth Amendment challenge to the trial court’s denial of his motion to suppress his statements; and (3) each of the death sentences satisfies the mandatory statutory review pursuant to Tennessee Code Annotated § 39-13-206.

In the Court’s opinion, it addressed Clayton’s waiver of his Fourth Amendment claim that his statement to police during the interview should be suppressed. This Court has held that “where the record on a pretrial suppression motion . . . clearly presents an evidentiary question, and where the trial judge has clearly and definitively ruled,” trial counsel need not offer further objections to the trial court’s ruling. Here, the Court concluded that counsel’s failure to obtain a ruling with regard to Clayton’s Fourth Amendment argument after the suppression hearing and failure to renew this argument during the motion for a new trial resulted in waiving his claim of error.

The Court also addressed the mandatory review of a death sentence as administered in Tennessee under §39-13-206(a)(1). According to statute, the review of a death sentence includes analyzing whether (1) a death sentence was imposed in any arbitrary fashion; (2) the evidence supports a jury’s findings of statutory aggravating circumstances; (3) evidence supports a jury’s finding that aggravating circumstances outweighed any mitigating circumstances; and (4) a capital sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and a defendant.

In reviewing the fourth element, the standard of review in regard to the fourth element that the Court is required to review, the standard of review is set forth in a proportionality test in which the Court must determine whether it is excessive or disproportionate to a penalty imposed in similar cases; insofar as it is “disproportionate to the punishment imposed on others convicted of the same crime.” A death sentence is disproportionate if a case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.” Thus, in our proportionality review, the Court examines the facts and circumstances of a crime, a defendant’s characteristics, and any aggravating and mitigating circumstances involved. More specifically, the Court must consider: (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim’s age, physical condition, and psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effect upon non-decedent victims. In addition to those factors, the Court also considers several factors about the defendant, including his or her (1) record of prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role in a murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.

The Tennessee Supreme Court held this case was comparable to other convictions resulting in a death sentence. Moreover, Clayton’s lack of criminal history does not thwart the imposition of the death sentence. The Court similarly noted it has rejected pleas of relief based on alleged “cooperation” with law enforcement. The death sentence in this case was not disproportionate to the penalty imposed for the similar crimes under similar circumstances.

Lastly, taking the evidence in the light most favorable to the State, the rational trier of fact could have concluded that the overwhelming evidence underlying the aggravating circumstances outweighed the mitigation beyond a reasonable doubt.

All defendants charged with crimes deserve a competent and rigorous defense because of the higher stakes in a criminal matter, the loss of liberty, and none more so than in a capital punishment case where the stakes for the defendant are at the highest—the loss of life. This case and the Court’s subsequent analysis illustrates the incredible importance of compliance with all procedural requirements when mounting a defense on behalf of a defendant, as the failure to comply with certain procedural rules ultimately resulted in Clayton waiving review of his Fourth Amendment violation claim on appeal.  Despite this waiver, the Court of Criminal Appeals did conduct a review of his claim; but, because of that waiver, consideration of that claim was pursuant to the Court’s Plain Error Review, a much higher burden to meet. This case highlights the importance of ensuring compliance with all procedural requirements at every stage of the litigation process and reaffirms that, though a person has enumerated constitutional rights, in order for your constitutional rights to be exercised, a defendant must do exactly that—make a clear showing of intent to exercise your rights. This right is not guaranteed unless it exercised properly.

State of Tennessee v. Gentry

State of Tennessee v. Tabitha Gentry (AKA Abka Re Bay)

No. W2015-01745-SC-R11-CD

Judge Jerry Smith

Criminal Law Journal Member: Kendahl Shoemaker Luce

Full Article PDF: State of Tennessee v. Tabitha Gentry

Defendant, Tabitha Gentry, was indicted by a Shelby County Grand Jury for theft of property valued at over $250,000 and aggravated burglary.  The charges stemmed from Gentry’s week-long seizure and physical occupation of a 10,000 square foot East Memphis home. On August 26, 2011, Renasant Bank foreclosed on the home and assigned Greg Paule, who was in charge of managing the bank’s foreclosed homes, to prepare the home for sale.  By February 2013, the bank had sold the home for $2.4 million dollars and as it prepared for closing, Gentry simultaneously worked to acquire the property without purchasing it.  Gentry filed twelve pages of “difficult to decipher documents” with the Shelby County Register of Deeds, including a document titled “quitclaim deed” that purported to transfer title of the home to Gentry using her alias, Abka Re Bay.  By March 4, 2013, Gentry had entered the home without the Bank’s consent or knowledge, changed the locks, and placed a large chain and padlock on the front gate of the property.  She also posted six signs advertising “No Trespassing,” “Private Property,” and “Keep Out” on the trees around the property and placed a flag for the “Moorish National Republic” on the front gate with a sign stating, “I Abka Re Bay, seize this land for the Moorish National Trust.”

On March 4, the real estate agent for the bank discovered the signs, flag, chain, and padlock when he drove by to check on the property.  He called Paule to notify him about what was occurring at the home, and Paule then called the police.  By the time the police had spoken with both men and prepared a written report, it was nearly dark so the police decided not to approach the house at that time because of safety concerns.  The next morning, both men and the bank president met with the police and it was decided that the bank needed to give the occupants of the home twenty-four hours’ notice to vacate, so they placed a written notice to vacate on the gate. The next day, however, Paule learned from an attorney for the City of Memphis that Gentry was under FBI investigation because of threats she had made against the President of the United States.  As a result of concerns related to those threats, the Shelby County Sheriff’s Office became involved in this matter and decided to enter the house with a Special Weapons and Tactics (“SWAT”) team to arrest Gentry for the home occupation.  As SWAT prepared to enter the property, they saw a white car leave through the front gate.  A sergeant with the Sheriff’s Office followed the car, pulled it over, and arrested Gentry. After which, SWAT entered the home and discovered clothing, food, a few air mattresses, and official documents under the name of Tabitha Gentry and “Moorish sovereign documents” issued to “Abka Re Bay.”

At trial, Gentry chose not to testify, at least partly based on her belief that she was “not subject to [the] futile jurisdiction” of the trial court. The jury convicted her of theft of property valued at $250,000 or more and aggravated burglary. The aggravated burglary conviction was based on Gentry’s intent to commit the theft of the real property when she entered the same house. She was sentenced to twenty years for the theft conviction and to three years for the aggravated burglary conviction. On appeal, the Court of Criminal Appeals affirmed the convictions and sentences. Gentry then filed an application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, which the Tennessee Supreme Court granted.

The primary issues on appeal were whether Tennessee’s consolidated theft statute encompasses the offense of theft of real property, and if so, based on the facts of this case, the evidence was sufficient to sustain a theft conviction.  The Court ultimately concluded that the General Assembly intended Tennessee’s consolidated theft statute to apply to theft of real property in the same way it applies to other property, and that there was sufficient evidence to support a conviction for the theft of realty. In determining whether there was sufficient proof to support a conviction for theft of property valued at over $250,000, the Court noted that, although the facts of most “squatter” cases would not support a conviction for theft, this was not a typical case as Gentry was not a “mere squatter.”  Based on Gentry’s filing of papers with the Register of Deeds Office by which she sought to obtain record ownership of the property coupled with her physical occupation and seizure of the house, the Court held that there was sufficient evidence to support the jury’s finding that Gentry had the intent to permanently deprive the Bank of the property and had obtained and/or exercised control over the real property.

As noted in the opinion, in 1989, Tennessee adopted a consolidated theft statute which incorporated all the myriad ways at common law one might deprive another of his/her property.  The legislative intent was to relieve the burden on prosecutors to choose the precise common law offense for the situation at hand.  The hope was that no longer would an accused thief be able to escape punishment through dismissal of an indictment which charged the wrong common law offense. With these considerations in mind, thirty-six states have, as of June 1, 2017, enacted consolidated theft statutes similar to Tennessee’s.

Tennessee Code Annotated Section 39-14-103 (a) provides that:

A person commits theft of property if, with the intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent.

This consolidation of various common law offenses into a single theft statute did however change the definition of some of the old common law offenses and the elements that must be proven for a conviction of the offenses.  For example, an asportation or moving of property is no longer necessary to prove a theft.  In this case, the primary issue raised was whether Tennessee’s consolidated theft statute encompasses theft of real property.  Based on the statutory language the General Assembly chose to adopt when it enacted the consolidated theft statute, the Court determined that there are no limitations in the statute that preclude its application to theft of real property generally or distinguish between real and personal property for purposes of conduct requirements for carrying out a theft. Therefore, the Court held that under Tennessee’s broad theft statute, real property, which, of course, cannot be asported or moved, might be the subject of a theft conviction.  Thus, the question in the case sub judice resolves itself into whether the evidence is sufficient to prove the defendant obtained or exercised control over the realty with the intent to deprive the owner of the real estate.

The unusual and egregious actions of the defendant in this case were found by the Court to be sufficient to sustain a theft conviction. The defendant took up residence in the realty, put up signs stating her intent to seize the property, publicly proclaimed herself the owner of the property, and even executed a fake “deed” indicating the property had been transferred to her.  Under these circumstances, the Court found the evidence sufficient to support a conviction for the theft of realty.

Notably, while holding the evidence sufficient for the conviction in the instant case, the Court took pains to explain that this conviction was upheld due to the actions of the defendant which evinced an intent to deprive the owner of the realty.  In the more typical “squatter case,” the squatter temporarily occupies the property without evincing any intent to deprive the owner of the property.

Although not stated in the opinion, reading between the lines, it appears the audacity of the defendant in her actions of attempting to remain in control of the property prompted prosecutors to charge her with theft rather than the less serious offenses of trespass or vandalism.  Practitioners should keep in mind the unusual nature of this case and watch for prosecutorial overreach in more routine squatter cases.

The Court in this case concluded that the evidence was sufficient for a trier of fact to conclude that the defendant “obtained and/or exercised control over the real property”.  Consequently, a question arises from this seeming conflation of the elements of “obtaining” and “exercising control” over the realty.  Specifically, one might ask, how does this holding affect the case of State v. Byrd in which the Supreme Court held that aggregation of the value of property in a theft prosecution depends on whether the defendant is charged with “obtaining” property, stolen from multiple owners, (usually cannot aggregate value of property taken from multiple owners) or “exercising control” (usually can aggregate value of property taken from multiple owners)?  Given the exceptional nature of the instant case, any answer as to the effect of this case on Byrd may remain unanswered for some time to come.

 

 

State of Tennessee v. Perrier

State of Tennessee v. Antoine Perrier

W2015-01642-SC-R11-CD

Attorney: Nicholas Bolduc

Criminal Law Journal Member: Dakota Dexter

Full Article PDF: State of Tennessee v. Antoine Perrier

This opinion arose from a February 2010 shooting that occurred in a Memphis, Tennessee convenience store.  According to trial testimony, convicted felon Antoine Perrier, the defendant, and his female acquaintance visited the Miracles Mini Market to purchase alcohol.  Inside the store, a customer “ogled” Mr. Perrier’s acquaintance and later exchanged words with Mr. Perrier outside the store because of this lustful gazing.  While the testimony concerning the level of the words’ hostility differed, the witnesses all agreed that Mr. Perrier drew a pistol from his person and fired towards the store door.  Several shots passed through one victim’s clothing without causing injury.  However, a child inside the store was not so lucky.  Investigators then discovered that Mr. Perrier possessed the only weapon at the scene.  The Shelby County Grand Jury indicted Mr. Perrier on one count of attempted second-degree murder, one count of employing a firearm during the commission of a dangerous felony, and six counts of aggravated assault.

At trial, Mr. Perrier testified that he shot in self-defense due to one of the victim’s actions.  After the conclusion of evidence, the trial court provided the pattern self-defense jury instruction to the jury, but added language regarding actions that may constitute unlawful activity as to negate the “no duty to retreat” language of the self-defense statute.  The trial court listed various illegal conduct related to the self-defense statute and instructed the jury that it was to determine whether Mr. Perrier was “engaged in unlawful activity” at the time he fired his pistol when it decided whether Mr. Perrier could properly claim self-defense without retreat.  After deliberations, the jury rejected Mr. Perrier’s self-defense claim and convicted him of one count of attempted voluntary manslaughter as a lesser-included offense of attempted second-degree murder; one count of employing a firearm during the commission of a dangerous felony; five counts of aggravated assault; and one count of assault of the store owner as a lesser-included offense of aggravated assault. During Mr. Perrier’s post-conviction proceedings, the post-conviction court granted Mr. Perrier a delayed appeal to the Supreme Court of Tennessee.  This decision resulted.

The Supreme Court of Tennessee held that the Tennessee legislature intended that the phrase “not engaged in unlawful activity” contained in the self-defense statute constituted a condition on an individual’s privilege to not retreat prior to exercising self-defense.  The state supreme court further held that the trial court should determine whether a defendant was engaged in unlawful activity at the time of the alleged self-defense so as to negate the applicable instruction.  The Supreme Court of Tennessee also concluded that the trial court properly instructed the jury when the trial court did not instruct the jury on a lesser-included offense of employing a firearm in the commission of a dangerous felony; that the indictment provided sufficient notice of the qualifying dangerous felony for purposes of the “employing a firearm” charge; that the trial court did not err when it failed to instruct the jury on the necessity defense; and that the State introduced sufficient evidence to convict the defendant of assault of the store owner.

The Supreme Court of Tennessee first resolved a legal question as to whether the statutory language “not engaged in unlawful activity” applies only to the statutory privilege to not retreat prior to engaging in self-defense.  The Court held that a defendant claiming self-defense is entitled to a jury instruction on the duty to not retreat from a confrontation “only when the person was not engaged in unlawful activity and was in a place the person had a right to be.”  Here, this holding sealed Mr. Perrier’s fate.  In practical terms, if one is engaged in unlawful activity at the time of the alleged act of self-defense, like Mr. Perrier, he or she must retreat before threatening or using force or both.  The Court noted that these holdings abrogated Dyson and overruled Montgomery.

The Supreme Court of Tennessee also held that the trial court possesses the duty to determine whether the defendant met the conditions for the instruction on the privilege not to retreat.  The Court used an Alabama Court of Criminal Appeals case with similar underlying facts, Fuller, to decide this issue.  The Court reasoned that having the trial court decide whether the defendant submitted evidence to justify issuing the instruction was compatible with the pattern self-defense instruction.  Indeed, a Tennessee trial court must provide a self-defense instruction when the proof “fairly rais[es]” the issue.  Thus, the trial court could simply decide another legal issue regarding the jury instruction, and this procedure provides yet another duty for the trial court.  Moving forward, parties must submit evidence to obtain whatever instruction result they desire.  The defense must put forth evidence to fairly raise the self-defense issue so that the applicable instruction will be provided.  Likewise, the State must produce clear and convincing evidence that the defendant was engaged in unlawful activity so that the duty-to-retreat instruction would be inapplicable.

Due to the applicability of these new holdings, the Supreme Court of Tennessee then had to decide whether the trial court committed reversible error when it instructed the jury.  The state supreme court held that the trial court erred when it instructed the jury.  However, the Supreme Court of Tennessee then held that the trial court’s error was harmless beyond a reasonable doubt.  The state supreme court held the error harmless “because no reasonable jury would have accepted the defendant’s self-defense theory.  The Court also left Mr. Perrier’s “causal nexus” argument for another day.  Indeed, the accredited facts demonstrated that, as only mere words were exchanged prior to the shooting, Mr. Perrier could not have been in imminent danger of death or serious bodily injury to warrant self-defense.

The Supreme Court of Tennessee also decided several other issues, all against Mr. Perrier.  First, the trial court did not plainly err when it failed to instruct the jury on “possession of a firearm” as a lesser-included offense of “employment of a firearm during the commission of a dangerous felony.”  Mr. Perrier argued that the Court should adopt the Henderson rule.  However, comparing the facts to another decision, the Court did not address Mr. Perrier’s argument regarding Henderson because it determined that the evidence clearly showed that Mr. Perrier did not merely possess the firearm.  Indeed, Mr. Perrier fired the pistol during the store altercation, and thus he actually employed the firearm—.  Accordingly, the Court held that the trial court did not commit plain error by not instructing the jury on “possession of a firearm.”

The Supreme Court of Tennessee next decided that the indictment provided adequate notice of the underlying felony to Mr. Perrier for purposes of the “employing a firearm” charge.  Pursuant to both the state and federal constitutions, a defendant must be properly noticed to a charge so that he may defend himself against the allegation.  Mr. Perrier contended that the indictment provided insufficient notice because it did not expressly name the underlying dangerous felony.  The Supreme Court of Tennessee determined that Mr. Perrier possessed sufficient notice of the underlying dangerous felony because the “attempted second-degree murder” charge in Count One was the only count that constituted a dangerous felony.  The state supreme court also found that the firearm count referenced the applicable statutory section in the indictment.  Finally, Mr. Perrier failed to argue any reason why the applicable precedent should be overruled.  Thus, the state high court overruled Mr. Perrier’s challenge.

Next, the Court held that the trial court correctly decided to not instruct the jury on the necessity defense.  The necessity defense constitutes a general defense, and thus the trial court must instruct the jury on the defense if the proof adduced at trial fairly raises the defense.  The necessity defense may negate culpability if the defendant acts upon a reasonable belief that the action is necessary to avoid harm and where the harm to be avoided is clearly greater than the harm caused by the criminal act.  Here, the Supreme Court of Tennessee held that the necessity defense was unavailable to Mr. Perrier, reasoning that, even if one of the victims had threatened to shoot Mr. Perrier, his shooting towards the convenience store endangered multiple other people who were not involved in the altercation.

Finally, the Supreme Court of Tennessee decided that the State introduced sufficient evidence for the jury to convict Mr. Perrier of assaulting the convenience store owner.  Mr. Perrier contended that he did not assault the owner because the owner was behind bulletproof glass.  To prove that Mr. Perrier assaulted the owner, the State had to prove beyond a reasonable doubt that Mr. Perrier knowingly or intentionally caused the owner to reasonably fear imminent bodily injury.  At trial, the owner testified that he was scared after Mr. Perrier shot at him.  The Court decided that Mr. Perrier was simply requesting that the Court reweigh the evidence that jury already decided in the State’s favor.  Thus, the Supreme Court of Tennessee affirmed Mr. Perrier’s conviction for assaulting the store owner.

 In conclusion, the law now holds that the Tennessee legislature intended that the phrase “not engaged in unlawful activity” contained in the self-defense statute constitutes a condition on an individual’s privilege to not retreat prior to exercising self-defense.  Thus, a convicted felon, such as Mr. Perrier, seemingly must retreat prior to engaging in any use of a firearm for self-defense purposes.  Next, the trial court now possesses the duty of determining whether a defendant was engaged in unlawful activity at the time of the alleged self-defense as to negate the applicable instruction.  Those holdings are the newest additions to Tennessee law.  However, the Supreme Court of Tennessee also concluded that, in this case, the trial court  properly instructed the jury when it did not instruct it on a lesser-included offense of employing a firearm in the commission of a dangerous felony; that the indictment provided sufficient notice of the qualifying dangerous felony for purposes of the “employing a firearm” charge; that the trial court did not err when it did not instruct the jury on the necessity defense; and that the State introduced sufficient evidence to convict Mr. Perrier of assault.

 

State of Tennessee v. Trent

State of Tennessee v. Kevin E. Trent

No. E2015-00753-SC-R11-CD

Attorney: Ben Raybin

Criminal Law Journal Member: Juliana Lamar

Full Article PDF: State of Tennessee v. Kevin E Trent

On May 3, 2012, Kevin E. Trent was under the influence of prescription medication when he drove his pick-up truck across three lanes of traffic, and collided head-on with a vehicle driven by Karen Freeman. As a result of the accident, Ms. Freeman suffered multiples injuries making her unable to speak or walk. Ms. Freeman was hospitalized for a period of two months before being transferred to a nursing home. Ms. Freeman succumbed to her injuries in October 2013.  Trent plead guilty to one count of vehicular homicide as result of his intoxication, a Class B felony. He was sentenced to eight years following a plea agreement, with his manner of service to be determined by the trial court following a sentencing hearing.

During the hearing, evidence showed that Trent’s blood at the time of the accident was above therapeutic levels for prescription medication. Trent was prescribed Oxycodone and Xanax after he lost both of his arms below the elbow and his left leg following a 2005 motorcycle accident. Though Trent was also prescribed prosthetic devices for these injuries, he admitted that he did not use them while driving, nor did he make any modifications to his truck to accompany his physical limitations. Trent testified to being unaware of warning labels on his prescriptions cautioning him not to drive while taking the medications.[1] Trent also admitted to taking more pills than his prescription allotted for whenever his pain was particularly bad, but did not think his medications impaired his driving. When Trent was questioned about the accident, he stated he had no memory of the event or the three weeks preceding it.

The trial court sentenced Trent to eight years confinement, denying probation to avoid “depreciating the seriousness of the offense.”  Tenn. Code Ann. § 40-35-103(1)(B).  Trent appealed to the Court of Criminal Appeals arguing the proof did not support the trial court’s decision denying probation “because the circumstances of his offense were not ‘especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree.’”  The Court of Criminal Appeals reversed the trial court’s ruling and sentenced Trent to probation.

On appeal, the Tennessee Supreme Court reversed the judgment of the Court of Criminal Appeals, vacated the trial court’s sentencing determination, and remanded the case for a new sentencing hearing.  The Court began by stating the standard of review, which provides that sentencing determinations should be reviewed under an abuse of discretion standard, with a presumption of reasonableness for within-range sentencing decisions that reflect a proper application of law. State v. Bise, 380 S.W.3d 682 (Tenn. 2012). But the Bise Court also noted that “appellate courts cannot properly review a sentence if the trial court fails to articulate in the record its reasons for imposing the sentence.” Id. at 705 n.41. See Tenn. Code Ann. § 40-35-210(e) (requiring the sentencing court to “place on the record . . . the reasons for the sentence”).

Looking at the case at hand, the Court found that the trial court did not sufficiently articulate its reasons for imposing the sentence. Moreover, the Court held that the trial court appeared to have improperly reached its decision denying probation. In State v. Travis, the Court explained that, when the seriousness of a defendant’s crime is the sole reason for ordering incarceration, the circumstances of the particular crime as committed by the defendant must be considered. 622 S.W.2d 529 (Tenn. 1981).  Because some crimes are statutorily ineligible for probation under any circumstances, the legislature is presumed to have deemed the other crimes inherently eligible for probation absent some additional factor. The commission of the essential elements of a probation-eligible offense—no matter how serious the offense or the essential elements may be—cannot alone justify denial of probation. Rather, the sentencing court must find that the offense was committed in a particularly egregious manner in order to deny probation.

In Trent, the Court explained that “the trial court made no findings regarding the particular circumstances surrounding the Defendant’s commission of [the offense].” Rather, the Court held that “it appears” the trial court abused its discretion by denying probation “simply upon the elements of the offense” rather than additional factors. The Court thus vacated the denial of probation as improperly ordered.

The Supreme Court next reached the issue of remedy. The intermediate decision by the Court of Criminal Appeals independently reviewed the record and ordered a sentence of probation. The Supreme Court reversed this determination as well. Just as the record was insufficient to uphold a sentence denying probation, the Court held the record was also insufficient to allow an appellate court to grant probation. The Court identified certain facts in the record which could potentially justify a denial of probation if more fully examined, and remanded for a new sentencing hearing to more thoroughly examine the entirety of the case.

The Court’s central holding vacating the sentence did not establish a new doctrine of law but merely reiterated the holding in Travis that the essential elements of the offense alone cannot justify denial of probation in a probation-eligible offense. The Trent decision should be viewed by trial judges and practitioners primarily as a reminder of that principal. On the other hand, the Court broke some new ground in appellate review. Prior decisions established that appellate courts can only uphold a sentence if the record is sufficient record to allow “meaningful appellate review.” Trent took that rule a step further by requiring a sufficient record for an appellate court to affirmatively impose a sentence.

[1] Trent acknowledged that the labels on his prescriptions warned him that the medications may cause drowsiness, but stated the labels did not tell him he could not drive.