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Criminal Law Update Fall 2014 • • • Dwight E. Stokes General Sessions Judge Criminal Law Update Fall 2014 • • • Dwight E. Stokes General Sessions Judge Sevier County, TN

Arrest: Probable cause to arrest defendant supplied by accomplice • Facts: Mc. Kay, purported Arrest: Probable cause to arrest defendant supplied by accomplice • Facts: Mc. Kay, purported accomplice of defendant to murder and robbery, implicated the defendant in a statement. Based on that information from Mc. Kay, defendant was arrested without a warrant. • Held: The Supreme Court reversed the Court of Criminal Appeals finding that P/C did exist for the arrest. The Supreme Court found Mc. Kay’s statement provided the missing piece to the puzzle and that the police had corroborating info already in their possession.

Accomplice and Probable Cause The Supreme Court noted that since the info triggering defendant’s Accomplice and Probable Cause The Supreme Court noted that since the info triggering defendant’s arrest derived solely from Mc. Kay (accomplice) that a determination had to be made under Aguilar/Spinelli standard whether one suspect’s statement may give P/C for police to arrest the accomplice. • The 1 st prong – “basis of knowledge” was very strong since Mc. Kay committed crime. 2 nd prong – “veracity of information”– was also satisfied due to Mc. Kay corroborating details of crime police already knew and was enhanced by Mc. Kay’s self-inculpatory statement and Mc. Kay’s genuine remorse. • State v. Bishop, 39 TAM 10 -1 (Tenn. 3/6/14) •

Confession: Whether defendant was coerced into confession by threats to arrest defendant’s family • Confession: Whether defendant was coerced into confession by threats to arrest defendant’s family • Held: While threats to arrest a suspect’s family may cause a confession to be involuntary, the police may advise the suspect of possible arrest of family members for accessory after fact if the police in fact have probable cause for such an arrest. In such a case, the statements are not unconstitutionally coercive. • State v. Phillips, 39 TAM 11 -14 (2013)

Person with mental deficiencies: Can still waive 5 th amendment rights • Held: The Person with mental deficiencies: Can still waive 5 th amendment rights • Held: The Court of Criminal Appeals held that a defendant who suffers from mental deficiencies can still waive Miranda rights if waiver was knowingly and voluntarily made under all the facts. Mental deficiency is but one factor to be considered. In this case, the clinical psychologist testified defendant could not possibly have comprehended her Miranda rights. The court said facts supported trial judge’s conclusion that motion to suppress should be granted as officers did not “painstakingly and methodically” go over each of rights, which is what would have been necessary for her to understand her rights. • State v. Lawrence, 39 TAM 15 -17 (Tenn. Cr. App. 2014)

“I think I need an attorney. ” • Held: Defendant’s statement -- “I think “I think I need an attorney. ” • Held: Defendant’s statement -- “I think I need an attorney” – held to be equivocal request for counsel. Court of Criminal Appeals found such statement was so weak a request that the officers were not required to cease questioning or to limit their questions to clarifying the defendant’s intent. ” • State v. Scott, 39 TAM 11 -23 (Tenn. Cr. App. 2013)

Officer / defendant interchanges • Facts: The defendant had two verbal interactions with police. Officer / defendant interchanges • Facts: The defendant had two verbal interactions with police. First, the officers asked defendant where the gun was and defendant said he did not have it. Second, defendant was told by an officer to cooperate with other officers and answer any questions. • Held: 1 st statement was a proper inquiry regarding officer safety. As to 2 nd statement, defendant had already indicated willingness to cooperate before officer told him to cooperate. Neither of the exchanges precluded defendant from giving a valid statement later on after having Miranda rights read to him. • State v. Teats, 39 TAM 13 -19 (Tenn. Cr. App. 2014)

Promises of Leniency • Facts: Police made statements to defendant that if he cooperated Promises of Leniency • Facts: Police made statements to defendant that if he cooperated and gave statement he could receive leniency, less jail time and possibly mental health treatment. Officers also said they would ask DA what could be done for defendant. • Held: Statements did not override the will of the defendant and the officers’ statements were merely equivocal as to any leniency. • State v. Mc. Ree, 39 TAM 25 -24 (20 -14)

Text message interpretation by officer: not improper lay opinion Facts: Officer viewed the text Text message interpretation by officer: not improper lay opinion Facts: Officer viewed the text from one co-defendant to another co-defendant which read: “Kk so is there neway u can cum up here n watauga so we can do dis. ” The officer told the co-D that he had seen text from other co-D asking, “Are you ready to do this? ” Held: Officer did not engage in improper lay opinion in interpreting text message, as Court said interpretation of text did not require expert witness but was reasonable looking at the poor grammar and fact that message was not encoded or in acronyms. State v. Chapman, 39 TAM 29 -24(Tenn. Cr. App. 2014)

Autopsy report: Testimonial or not? • Facts: In murder case, one doctor wrote autopsy Autopsy report: Testimonial or not? • Facts: In murder case, one doctor wrote autopsy report and another doctor testified about the report. Defendant objected claiming violation of confrontation clause. • Held: Under primary purpose test, autopsy report not testimonial and therefore no violation of confrontation clause. • Dissent: (Tipton) – This is homicide case, and defendant was the identified suspect before the autopsy, so the primary purpose of autopsy was to be used in criminal trial, implicating the confrontation clause. • State v. Hutchinson, 39 TAM 26 -25 (Tenn. Cr. App. 2014)

Driving on revoked license: Any mens rea element to offense? • Held: In response Driving on revoked license: Any mens rea element to offense? • Held: In response to defendant’s claim that he did not realize or know his license was suspended at time of driving, Court of Criminal Appeals held that driving on revoked has no mens rea element to crime. All that is required by proof is that defendant was driving at time his license was revoked. • State v. Harris, 39 TAM 13 -22 (Tenn. Cr. App. 2014)

Drug Free School Zone Act: defendant not have to know in zone • Held: Drug Free School Zone Act: defendant not have to know in zone • Held: To prove defendant in violation of Drug Free School Zone Act, state only has to prove that defendant had mental state to sell drugs, not whether or not defendant knew he was within 1, 000 feet of daycare (or school). • State v. Johnson, 39 TAM 21 -26 (2014)

Sale of Drugs: mens rea of drug statute goes to intent and not to Sale of Drugs: mens rea of drug statute goes to intent and not to quantity • Facts: Defendant argued that evidence for drug sale must prove beyond reasonable doubt not only intent to sell drugs but intent to sell specific quantity. • Held: Mens rea element of drug statute does not apply to quantity of controlled substance but only applies to manufacture, delivery, sale or possession with intent to do so. • State v. Reeves, 39 TAM 27 -25 (2014)

Say what!? “Medically” unable to consent but “legally” able to consent • Facts: Two Say what!? “Medically” unable to consent but “legally” able to consent • Facts: Two doctors testified in DUI case that defendant was not in position to consent to medical procedure due to medication he was taking, including not being able to consent to give blood sample. • Held: Consent for law enforcement purposes and medical purposes are based on two entirely different standards, and therefore defense based on “medical” standard was “misguided. ” The court noted that one doctor conceded that the explanation given by defendant regarding weapon was indicative of proper functioning of frontal lobe. • State v. Evans, 39 TAM 28 -26 (Tenn. Cr. App. 4/04/14)

Sensing: 20 minute observation means paying attention • Facts: After DUI arrest, officer observed Sensing: 20 minute observation means paying attention • Facts: After DUI arrest, officer observed defendant for 20 -minute period pursuant to Sensing requirements. During video, officer was shuffling papers in his lap on multiple occasions and shifted his gaze from defendant to video screen. • Held: Trial court did not err in granting motion to suppress. Sensing does not require 100% certainty but observation must be performed in way to prevent silent or surreptitious bodily function from occurring. • State v. Schafer, 39 TAM 29 -27 (Tenn. Cr. App. 2014)

Community Care-Taking Function Crashes and Burns • Facts: Defendant was parked in empty parking Community Care-Taking Function Crashes and Burns • Facts: Defendant was parked in empty parking lot at 11: 00 PM. D was not breaking any laws and there had been no report of person in distress at that location. Officer testified he approached for welfare check and did not activate his emergency equipment. He knocked on window and D remained unresponsive, so officer opened door…. • Held: Officer not acting in community care-taking role when he opened door. There was no consensual police-citizen encounter to justify the intrusion, and therefore there was no justification under Constitution. • State v. Shouse, 39 TAM 28 -24 (Tenn. Cr. App. 2014)

Status of Community Care-taking • 1) This was affirmation of trial court’s granting the Status of Community Care-taking • 1) This was affirmation of trial court’s granting the motion to suppress so there is some deference involved. • 2) New Justice Bivens has expressed some displeasure at erosion of doctrine so his presence on Supreme Court may have impact. • 3) Entire Supreme Court may be looking at this, so keep on alert for future rulings.

Community Care-taking role: look to totality of circumstances • Facts: Officer in Gatlinburg was Community Care-taking role: look to totality of circumstances • Facts: Officer in Gatlinburg was traveling on highway when VW two cars ahead came to abrupt stop. A Lexus between officer and VW was able to stop close to bumper of VW and officer stopped his vehicle behind Lexus. Officer got out to check on VW, but after officer was out of car, VW took off. Officer went to Lexus which defendant was driving. Officer smelled alcohol and ultimately arrested defendant for DUI.

Under totality of evidence, was defendant seized without legal justification? • Held: Yes, the Under totality of evidence, was defendant seized without legal justification? • Held: Yes, the VW had caused the problem and left the scene. The defendant had violated no laws, the defendant was not in need of assistance, and due to use of directional flashing lights (not blue lights) reflecting off nearby store fronts, the defendant would not have felt free to leave. So under totality of circumstances test, the defendant had been seized without legal reason. • State v. Mustafa (Tenn. Cr. App. 2014)

Officer’s failure to create evidence: not a Ferguson issue • Facts: There was no Officer’s failure to create evidence: not a Ferguson issue • Facts: There was no recording of defendant’s breath test due to failure of jail personnel. • Held: Because the recording of the breath test never existed, the defendant is not entitled to relief under Ferguson case. Ferguson applied to destruction of existing evidence, not to any requirement to “create” evidence. • State v. Pendergrass, 39 TAM 26 -27 (2014)

Passing Field Sobriety Tests: Do not pass GO; Do not collect $200 • Facts: Passing Field Sobriety Tests: Do not pass GO; Do not collect $200 • Facts: During early morning hours, officer stopped defendant for traveling wrong way on divided highway. Defendant smelled of alcohol and admitted drinking. The defendant performed very well on FSTs, including pre-exit tests. The trial judge dismissed the case on basis of no P/C for arrest. The Court of Criminal Appeals affirmed. The case had also been dismissed in General Sessions after a preliminary hearing, but then was taken to Grand Jury by district attorney.

Supreme Court reverses: Look at prudent person in officer’s shoes • Held: Even if Supreme Court reverses: Look at prudent person in officer’s shoes • Held: Even if defendant correctly performed the field sobriety tests, his performance did not sufficiently undermine a finding of probable cause for DUI based upon the officer’s observations of defendant on wrong side of road, the smell of alcohol, and defendant’s admission of consuming alcohol. The Supreme Court stated that the pivotal question is whether, at the time of the arrest, the facts and circumstances within officer’s knowledge, including those communicated to him by another officer, were sufficient to enable a prudent person to believe the defendant had committed or was committing the offense of DUI. Look to a common sense analysis of the facts. • State v. Bell, 39 TAM 8 -1 (Tenn. 2014)

911 call: statements by victims on 911 call qualify as “excited utterances” • Facts: 911 call: statements by victims on 911 call qualify as “excited utterances” • Facts: Victims of crime were hiding in house and made 911 call to police about crime. • Held: 911 recording properly allowed into evidence as exception to hearsay rule as 911 call qualified as excited utterance. The call was made by victims hiding in house which related to the startling event of nearby shooting. • State v. Smith, 39 TAM 8 -24 (2014)

“Prejudicial Preambles”: detectives babbling & narrating audio recording • Facts: In drug transaction case, “Prejudicial Preambles”: detectives babbling & narrating audio recording • Facts: In drug transaction case, the tape recordings introduced into evidence had introductory statements made by detectives. • Held: Trial court erred in allowing the “prejudicial preambles” to be played for jury (fact-finder). The court said state should always redact such comments from audio and transcript. • State v. Woods, 39 TAM 8 -27 (2013)

Bomb threats: Call records properly admitted as business records • Facts: Records technician (Mc. Bomb threats: Call records properly admitted as business records • Facts: Records technician (Mc. Alister) testified about call records of pay phones including incoming and outgoing calls, date and time of calls and duration of calls. • Held: The call records were properly admitted pursuant to business records exception to hearsay rule. The call record was created during course of regularly conducted business activity. The “critical inquiry” was whether record itself was created in regular course of business at or near the time of reported event. It was and so was admissible. • State v. Bradford, 39 TAM 33 -23 (2014)

Propriety, scope, manner and control of witnesses : discretion of trial judge • Facts: Propriety, scope, manner and control of witnesses : discretion of trial judge • Facts: Defense counsel requested to wait till defense proof to question mother of murder victim. Trial judge told counsel to cross-examine “now” (at end of state’s direct exam) or forever hold his peace. Judge explained he did not like to keep victim’s family out of courtroom (pursuant to sequestration) during trial without a very good reason. • Held: It is a well-settled rule of law that the propriety, scope, manner and control of witnesses is a matter of discretion of trial judge. It will not be reversed absent application of incorrect legal standard or is contrary to logic or reasoning or causes an injustice to a party. • State v. Fox, 39 TAM 22 -18 (Tenn. Cr. App. 2014)

Weird drawings by defendant: Relevant to show animosity toward victim • Facts: 15 -year Weird drawings by defendant: Relevant to show animosity toward victim • Facts: 15 -year old defendant convicted of sex crimes upon younger sister. State was allowed to introduce proof of drawings by defendant such as baby being spanked by paddle, baby behind bars and a baby and a penis; also introduced drawing of baby wrapped in bandages and in traction and a baby in tears. • Held: Pictures were relevant to show defendant’s animosity toward sister for having to babysit her and relevant to show D’s state of mind which state had duty to prove. Probative value outweighed prejudice. • State v. Prindle, 39 TAM 20 -27 (Tenn. Cr. App. 2014)

Excited utterance: Victim’s observing blood on self triggered emotion/shock • Facts: Victim and female Excited utterance: Victim’s observing blood on self triggered emotion/shock • Facts: Victim and female companion were in restroom together when victim noticed blood on her clothing and on tissue she used. She cried and told friend she had been raped earlier in evening. • Held: Statement was admissible as excited utterance. The Court found she was still in state of shock rekindled after observing blood on her and tissue, leading to renewed emotion and reflecting a nontestimonial statement which had indicia of trustworthiness. • State v. Wright, 39 TAM 25 -22 (Tenn. Cr. App. 2014)

Shaken girl’s statement to stepgrandmother is excited utterance • Facts: Step-grandmother became aware of Shaken girl’s statement to stepgrandmother is excited utterance • Facts: Step-grandmother became aware of her granddaughter behind her sniffling. She followed her into bathroom where victim was crying and shaken. Girl told her, “Pa touched my pee and boobs. ” • Held: The girl’s statement related to startling event of defendant touching her private areas, given while she was under stress of the traumatic event, close enough in time that spontaneity still existed. • State v. Poston, 39 TAM 19 -22 (2014)

Expert witness: Officer allowed to testify about field test for cocaine • Facts: After Expert witness: Officer allowed to testify about field test for cocaine • Facts: After DUI stop, police officer conducted a field test on substances which tested positive for cocaine. • Held: No error in allowing officer to testify as expert on the tests. During voir dire, officer testified he had been trained to operate the field tests and that he had administered thousands over the years. The officer explained each step of the test and confirmed he followed directions “each and every time. ” Testimony allowed even though officer never received a certificate to confirm training. Training and experience meant more than certificate, said the Court. • State v. Comer, 39 TAM 27 -27 (2014)

Forgetting to swear in witnesses: A judge’s pardonable sin (usually) • Facts: In sexual Forgetting to swear in witnesses: A judge’s pardonable sin (usually) • Facts: In sexual battery case, child victim was not sworn in. The victim’s testimony began and then the failure was called to court’s attention. The court then administered the oath and asked witness to affirm her prior testimony was truthful, which she did. The judge asked attorneys if they had questions to which they responded no. • Held: The defendant waived objection by failing to object or ask questions when given the opportunity by judge. • Practice point: reasonable procedure to follow if happens. • State v. Poston, 39 TAM 19 -22 (Tenn. Cr. App. 2014)

State of Mind Hearsay Exception: Victim’s comments about husband Deemed Admissible • Facts: In State of Mind Hearsay Exception: Victim’s comments about husband Deemed Admissible • Facts: In murder case, co-worker testified regarding victim’s statement to her about intent to confront husband over his infidelity. • Held: Admissible under state of mind exception to hearsay rule because it established intent and plan to confront the defendant at approximate time of murder. The victim’s state of mind was at issue since husband claimed she killed herself. Witnesses were also allowed to testify about her excitement over her son’s upcoming wedding to show her state of mind and to rebut suggestion she committed suicide. • State v. Owens, 39 TAM 25 -16 (Tenn. Cr. App. 2014)

Child victim’s medical history: Given for purposes of medical diagnosis • Facts: Trial court Child victim’s medical history: Given for purposes of medical diagnosis • Facts: Trial court allowed forensic social worker to testify about medical history child gave to her including fact that defendant had put his mouth on her private parts and put his hands on her genital area. • Held: Testimony was proper as such statements were presumptively trustworthy as for purposes of medical diagnosis and treatment and also to rebut defendant’s suggestion of child’s recent fabrication of story through her prior consistent statement. • State v. Russell, 39 TAM 29 -21 (Tenn. Cr. App. 2014)

Error in Not Allowing Impeachment of Confidential Informant • Held: Trial court erred (reversible Error in Not Allowing Impeachment of Confidential Informant • Held: Trial court erred (reversible error) in not allowing confidential informant to be crossexamined about her prior convictions. TRE 608 allows cross-examination regarding judicial diversions. The diversions were for crimes of dishonesty (fraud) and therefore probative of informant’s character for truthfulness. • State v. Peters, 39 TAM 12 -22 (2014)

Detective’s inaccurate testimony in prior trial • Facts: Defendant wanted to cross-examine a detective Detective’s inaccurate testimony in prior trial • Facts: Defendant wanted to cross-examine a detective about “inaccurate testimony” he had given in a previous trial. Trial judge ruled it inadmissible. • Held: No abuse in discretion of judge to disallow. Defendant wanted it admitted to show “propensity” for misstating facts or misremembering or lying about case. Court said no probative value as making some mistakes previously does not impact defendant’s overall character for truthfulness. State v. Chadwick, 39 TAM 7 -22 (Tenn. Cr. App. 2014)

Impeachment by learned treatise: Not apply to lay witness • Facts: Defense wanted to Impeachment by learned treatise: Not apply to lay witness • Facts: Defense wanted to impeach an officer by use of learned treatise. • Held: While the Rules of Evidence do allow treatises to be introduced for purpose of impeachment, the rule applies to expert witnesses only. A learned treatise may not be used to impeach a lay witness. Here, the officer was not testifying as expert in interrogation, only testifying about his interrogation of defendant. • State v. Mc. Ree, 39 TAM 25 -24 (2014)

Prior consistent statement: Premature prior to attack on victim • Facts: Over defense objection, Prior consistent statement: Premature prior to attack on victim • Facts: Over defense objection, the state was allowed to introduce into evidence a videotape of victim’s forensic interview, even prior to defense questioning of victim on cross-examination. • Held: The trial court erred in allowing the victim’s “prior consistent statement” prior to defendant even attacking the victim’s credibility and raising issue of fabrication. • State v. Herron, 39 TAM 17 -19 (2014)

Victim testifying about rape experience as child held admissible • Facts: In case involving Victim testifying about rape experience as child held admissible • Facts: In case involving allegedly brutal rape in bathroom stall, defense questioning of victim was intense and she was “grilled” over not screaming for help or seeking medical attention if it happened as she claimed. • Held: Victim was properly allowed to testify about sexual assault on her as a child to show why she reacted as she did. Her testimony was about constant abuse as a child, following which she returned to living room acting like nothing had happened. The court found proof was relevant to show why she reacted as she did and relevancy to her truthfulness – more relevant based on defense attack on her during cross. • State v. Wright, 39 TAM 25 -22 (2014)

Vietnam veteran and officer testimony about “worst injuries ever have seen” • Facts: The Vietnam veteran and officer testimony about “worst injuries ever have seen” • Facts: The defendant was charged with attempted first degree murder for his acts of throwing at least five quarts of boiling oil on live-in girlfriend while she lay in bed. Vietnam veteran and officer both testified injuries were worst they had ever seen, considering service in Vietnam and as officer, respectively. • Held: Their opinions were irrelevant and inadmissible, particularly since the proof gave nothing to compare the injuries to, leaving jury to speculate as to --- “worse than what? ” But it was harmless error since proof was clear that defendant deserved to be boiled alive. • State v. Haase, 39 TAM 12 -15 (2013)

“If I did do it, I was on alcohol and drugs” • Facts: When “If I did do it, I was on alcohol and drugs” • Facts: When confronted by victim’s mother about commission of aggravated sexual battery on victim, defendant responded by saying, “If I did do it, I was on alcohol and drugs. ” • Held: No abuse of discretion by judge in allowing this testimony by the mother, as the defendant’s statement provided a “rationalization” for the offenses and could be interpreted as a qualified admission that defendant committed the crimes. • State v. Mc. Math, 39 TAM 5 -18 (2013)

Threats against witness: Drawing by defendant of woman with gun to head • Facts: Threats against witness: Drawing by defendant of woman with gun to head • Facts: Defendant was charged with aggravated sexual battery of 11 -year old boy. Victim’s mother was scheduled to testify against defendant. Shortly before trial, the boy received mail from defendant that mother opened. There was a drawing of a woman with gun to her head. • Held: The drawing was properly admitted as a threat to the mother if she testified. The Court found that the letter raised a reasonable inference of a threat to the mother. • State v. Mc. Math, 39 TAM 5 -18 (2013)

Confrontation Rights: Not violated by forensic interview video under statute • Facts: TCA 24 Confrontation Rights: Not violated by forensic interview video under statute • Facts: TCA 24 -7 -123 provides for introduction of child sex victim’s forensic interview at trial if victim testifies at trial and is subject to cross-examination. • Held: Statute does not violate confrontation rights due to safeguards in law: (1) child testifies at trial and can be cross-examined face to face; (2) the video has particularized guarantees of trustworthiness; (3) factors regarding trustworthiness are reasonable and leave ultimate discretion with trial court as to admissibility into evidence. • State v. Davis, 39 TAM 32 -18 (2014)

Videotaped forensic interview of child: Statute not conflict TRE Rule 803(25) • Facts: In Videotaped forensic interview of child: Statute not conflict TRE Rule 803(25) • Facts: In child sex abuse case, defendant claimed TCA 24 -7 -123 conflicted with TRE 803(25), existing case law and violated separation of powers doctrine. • Held: No to all of the above. (1) 803(25) allows forensic video in civil cases only, but does not preclude other laws for criminal cases, so no conflict. (2) Case law was also distinguished and found not in conflict. (3) The separation of powers argument rejected based on fact court interpreted act as a permissible addition to evidence rules with discretion vested in the judiciary as to final decision on evidentiary decisions. • State v. Mc. Kaughan, 39 TAM 33 -21 (2014)

Ineffective Assistance of Counsel: State and federal sentences • Facts: Defendant claimed ineffective assistance Ineffective Assistance of Counsel: State and federal sentences • Facts: Defendant claimed ineffective assistance of counsel due to fact he was led to believe state and federal sentences would run concurrently. • Held: No ineffective assistance of counsel as no proof counsel misled defendant. The intent of plea between state and D was to run sentences concurrently and that was judge’s intent also. Issue is practical problems arise due to dual sovereignty. The court suggested cooperation and practical steps to carry out intent of parties BUT if not work out parties need to have new plea agreement and try to implement intended terms. • Frazier v. State, 39 TAM 26 -31 (2014)

Photo lineup: Non-issue becomes issue at trial and is cautionary tale • Facts: At Photo lineup: Non-issue becomes issue at trial and is cautionary tale • Facts: At photo lineup, victim could not identify defendant which state conceded to defense. At trial victim testified she did ID the D. After conviction, D claimed ineffective assistance of counsel in not preparing. • Held: Counsel was able to have detective confirm that victim could not ID defendant at photo lineup so no prejudice in counsel’s not having copy of photo lineup to cross-examine victim. • Practice point: Better practice is to anticipate problems and have proper copies if bad things happen. Cover your bases, counsel. Judges also need to assist if injustices spring up. • Pillow v. State, 39 TAM 18 -5 (2014)

Judge’s Facebook Screw-up: Lawyers just doing their job • Facts: In serious murder trial, Judge’s Facebook Screw-up: Lawyers just doing their job • Facts: In serious murder trial, it was discovered that trial judge had numerous contacts with MTSU basketball program and Facebook friendship with state witness. When issue was raised judge got upset at attorneys. • Held: Record indicated zealous representation by defense counsel and misplaced wrath by judge. The court did not find any prejudice to D by judge’s connections to witness or school, but court did emphasize solemn duties by judges and need to avoid appearance of impropriety. • State v. Madden, 39 TAM 23 -15 (2014)

Photographic array: Unduly suggestive as only defendant met description • Facts: Defendant objected that Photographic array: Unduly suggestive as only defendant met description • Facts: Defendant objected that photo spread was unduly suggestive and tainted ID procedure. • Held: The process was unduly suggestive as only the defendant could have met description given by victim due to fact defendant’s “short twists” of hair were only ones not falling below the bottom of the ears. In reviewing Biggers factors, court still found ID reliable. • State v. Prescott, 39 TAM 29 -23 (2014)

Reasonable suspicion: Detaining two men who matched ID “to a T” • Facts: In Reasonable suspicion: Detaining two men who matched ID “to a T” • Facts: In aggravated robbery case, officers seized two men within 15 minutes who met description “to a T” and detained them for show up. They were detained outside bus station under an umbrella while waiting for officer to bring victim for “show up. ” Victim identified suspects. • Held: The record “amply supported” the brief detention of suspects for reasonable suspicion and was minimally intrusive. It was reasonable and served the public interest. • State v. Peebles, 39 TAM 18 -15 (2014)

“Steve Lance” was driving: “Leprechauns and Fairy Godmothers” • Facts: In DUI case, the “Steve Lance” was driving: “Leprechauns and Fairy Godmothers” • Facts: In DUI case, the defendant claimed he was not driving and that in fact “Steve Lance” was the driver. The prosecutor compared the existence of “Steve Lance” to the existence of “leprechauns” and “fairy godmothers. ” Defendant claimed prosecutorial misconduct. • Held: State’s argument was not improper based on fact “Steve Lance” was not called as a witness nor was subpena found to exist in the record. • State v. Smith, 39 TAM 22 -31 (2014)

Judge at suppression hearing: Finding of “at least P/C if not a sure thing” Judge at suppression hearing: Finding of “at least P/C if not a sure thing” • Facts: Defense counsel maintained judge erred in not recusing self after ruling at suppression hearing, “We have at least probable cause, if not almost a sure thing, that the killer was Stewart Gregory. ” • Held: In the context as a whole, court found no abuse of discretion for judge not recusing self. The judge had to rule on motion which required weighing of evidence which judge did in his comments. No reason to question impartiality. • State v. Gregory, 39 TAM 6 -18 (2013)

Sale of Drugs: Tennessee follows “market-oriented approach” • Facts: Defendant was convicted of sale Sale of Drugs: Tennessee follows “market-oriented approach” • Facts: Defendant was convicted of sale of drugs and contested the amount of drugs due to fact that the weight included not just cocaine but also cutting agents or carrier mediums. • Held: No abuse of due process. Tennessee courts have consistently followed the “market oriented approach”, with the relevant weight under the statute being the substance (cocaine) plus any cutting agents or carrier mediums, as long as the substance is in its marketable or consumable form. • State v. Watkins, 39 TAM 24 -23 (2014)

Cell phones: Police not to search cell phones in arrest without a warrant • Cell phones: Police not to search cell phones in arrest without a warrant • Facts: Defendant was stopped for driving with expired tag and then arrested on weapons charges. Officer searching defendant pursuant to arrest accessed info on the phone leading to info regarding gang involvement and linking him to a shooting. • Held: Police may not search cell phones of suspects without a warrant as cell phones are mini-computers with massive amounts of private information distinguishing it from wallets, vehicles, etc. There may be some emergency situations where warrant is not necessary. • Riley v. California (U. S. S. Ct. 2014)

Co-tenants and searches: when objecting co-T is removed from scene, other co-T can consent Co-tenants and searches: when objecting co-T is removed from scene, other co-T can consent to search • Facts: Suspect in robbery objected to search of apartment when police made request to co-tenant. Officers arrested and removed suspect from scene, following which co-T allowed search of premises, revealing info linking suspect to robbery. • Held: Consent by co-T was valid as she had authority to do so. Removal of defendant from scene was justified due to having P/C for arrest, and was not mere subterfuge to obtain search. • Fernandez v. California (U. S. S. Ct. 2014)

Search warrant: Deemed ok when judge signed S/W after officer had designated himself as Search warrant: Deemed ok when judge signed S/W after officer had designated himself as executing officer • Held: There was an effective endorsement of search warrant by judge when judge signed and dated it with officer having already entered his name as executing officer. This was not a case of a wrong name or a blank warrant with no executing officer. The judge simply endorsed the s/w with officer named. • State v. Armstrong, 39 TAM 17 -23 (2014)

Location of search: Irrelevant whether search is at scene or at police station once Location of search: Irrelevant whether search is at scene or at police station once P/C is established for search • Facts: Defendant was identified as man leaving scene of shooting. Officers pulled him over with P/C for involvement in shooting and also smelled strong smell of marijuana. The vehicle was taken to department where search revealed incriminating evidence. • Held: Once P/C was established for search of vehicle, the location of search (at scene or at police department) was irrelevant. The automobile exception to s/w requirement was implicated and allowed for search at either location. • State v. Gregory, 39 TAM 6 -18 (2013)

Search warrant for residence: defective in not ID’ing “male subject” • Facts: Search warrant Search warrant for residence: defective in not ID’ing “male subject” • Facts: Search warrant affidavit did not provide any name or description of “male subject” at house. The warrant did not establish the subject as residing at or frequenting the premises. The officer never saw anyone at premises other than informant. • Held: S/W properly ruled defective and evidence suppressed. State presented no authority that any single drug transaction can always provide probable cause to justify a search warrant. • State v. Talley, 39 TAM 15 -25 (2014)

“Second look” at lawfully seized property: not violate any privacy right • Facts: Defendant “Second look” at lawfully seized property: not violate any privacy right • Facts: Defendant was lawfully arrested and taken to jail where his property was properly inventoried and stored. Later, an anonymous tip suggested a closer look at his personal items. A “second look” revealed jewelry in D’s possession had been stolen in another crime. • Held: Once state had right to search property in first place, defendant had no logical privacy interest expectation and state could re-search the evidence. • State v. Morris, 39 TAM 29 -30 (2014)

Delay in detaining defendant: Proves fatal to later stop and search • Facts: Defendant Delay in detaining defendant: Proves fatal to later stop and search • Facts: Defendant was in store and walked past the officer. Officer smelled marijuana odor on D, but claimed he was unable to stop D prior to his leaving store and driving away. Officer followed and pulled D over. Trial court found search unreasonable under circumstances. • Held: Evidence not preponderate against ruling of trial court. Deputy should have briefly detained D at store or outside store when smelled marijuana on D. The later stop and search was much more intrusive and explanation not credible. • State v. Jones, 39 TAM 24 -24 (2014)

“I was raised in a small town. I have Facebook friends in a small “I was raised in a small town. I have Facebook friends in a small town. ” • Facts: The defendant discovered that the confidential informant against him in his case was a Facebook friend of the judge, lived within one half mile of the judge and had known the judge all his life. The judge said Stewart County was a small county and he could not recuse himself every time he knew someone. • Held: No showing judge could not function in role as 13 th juror or to indicate any bias because he was Facebook friends with informant. • State v. Forguson, 39 TAM 19 -27 (2014)

CRIMINAL LAW UPDATE Fall 2014 • • • Dwight E. Stokes General Sessions Judge CRIMINAL LAW UPDATE Fall 2014 • • • Dwight E. Stokes General Sessions Judge Sevier County, TN