Tennessee law recognizes a clergy-penitent privilege, which protects the legal confidentiality (so that it cannot be used as evidence at trial) of some statements made to members of the clergy when seeking spiritual advice or counsel. However, this privilege does not apply when dealing with incidents of child sexual abuse. Nor does any other communication privilege, other than attorney-client privilege, protect the confidentiality of statements involving known or suspected child sexual abuse. This exception is statutory. It is also recently illustrated in the case of State v. Workman, E2010-02278-CCA-R3-CD (Tenn.Crim.App. 12-13-2011).
Statement to Clergy Admissible Evidence in a Child Sex Abuse Case
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State Wins a Missing Evidence Appeal
In the previous post, the recent case of State v. Clark, E2009-01795-CCA-R3-CD (Tenn.Crim.App. 10-24-2011) was discussed regarding the search and seizure issue in that case. There was also a missing evidence issue. In addition to excluding evidence, the trial court also dismissed the indictment due to finding that other evidence which had been in the control of the State had been lost and that it was impossible for the Defendant to receive a fair trial due to the State having lost potentially exculpatory evidence (citing State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). The State appealed this ruling and prevailed.
State Wins a Search and Seizure Appeal
Most appeals of search and seizure evidentiary rulings in criminal cases are appeals by a Defendant after a conviction. However, as these are legal rulings by a trial court, the State has the option of appealing a ruling excluding evidence. In the recent case of State v. Clark, E2009-01795-CCA-R3-CD (Tenn.Crim.App. 10-24-2011), the Tennessee Court of Criminal Appeals reversed a trial court ruling excluding evidence obtained during the warrantless search of the vehicle of a suspect in the vandalism of a red light camera.
Conviction Reversed Due to Improper Use of Character Evidence
The Tennessee Rules of Evidence provide for limited circumstances under which a witness' credibility may be attacked or supported by opinion or reputation. Evidence of a witness' character for truthfulness or untruthfulness may be admissible. Before character for truthfulness is admissible though, the character of the witness for truthfulness must first have been attacked. Tennessee Rules of Evidence, Rule 608(a). In the recent case of State v. Thomas, M2010-01394-CCA-R3-CD (Tenn.Crim.App. 10-4-2011), the Tennessee Court of Criminal Appeals explains that attacking the credibility of a statement a witness has made is not the same thing as attacking the witness' character for truthfulness.
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Sometimes Color Matters in Search Warrants
Search warrants must specifically describe what property is authorized to be searched. Ambiguity can render the warrant invalid. In the recent case of State v. Spivey, W2010-01853-CCA-R3-CD (Tenn.Crim.App. 9-19-2011), a search warrant described a home with tan siding at a particular address. The search revealed crack cocaine, a digital scale, and a handgun. The problem was that there were two separate homes at that address. One had tan siding and one had blue siding. The police searched the blue one (which is the one they believed they had sought authorization to search). They searched the right home but had described the wrong one. The Defendants moved to suppress the evidence from the search. The trial court granted the motion. The State appealed. The Court of Criminal Appeals affirmed the trial court.
Defense Wins a Vehicle Search and Seizure Case
In the recent search and seizure case of State v. Donaldson, M2010-0069-CCA-R3-CD (Tenn.Crim.App. 9-15-2011), the State of Tennessee, appealing a trial court ruling excluding evidence, asserted that a police officer has unrestricted authority to order a motorist to exit a vehicle at any point during a valid traffic stop. The Tennessee Court of Criminal Appeals disagrees.
State Loses Appeal on Double Jeopardy Issue
A person who violates a court order of protection in Tennessee may be prosecuted under criminal contempt provisions or under a criminal statute criminalizing violations of orders of protection. However, charging both criminal contempt and violation of the criminal statute may be double jeopardy, depending on the circumstances of the case.
Testimony is Sufficient Evidence Where Video is Inconclusive
It is common in DUI cases to review patrol car video of the initial stop to help determine whether that stop was legally justified (something to be considered in any DUI case where a police officer has initiated a stop of the Defendant's vehicle). Though the video can in some cases be very helpful in determining the question one way or another, it is not the only evidence available. Witness testimony, including testimony of the police officer initiating the stop, is also important. DUI stops often occur after dark, when lighting conditions are poor. Camera sensors are not nearly as good at seeing in the dark as is the human eye. In the case of a video that is inconclusive, witness testimony can still be conclusive. That was the case in the recent Tennessee Court of Criminal Appeals opinion in State v. Patterson, M2010-02360-CCA-R3-CD (Tenn.Crim.App. 8-22-2011).
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Consecutive Sentencing Upheld in a Vehicular Homicide Case
In criminal sentencing for multiple convictions where the convictions are not required by law to run consecutive to each other, the trial court can, in the court's discretion, impose the convictions consecutively if the court finds one of several specific statutory conditions apply. The conditions are listed in Tennessee Code Annotated 40-35-115(b). One of those conditions is if the defendant "is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." This condition can be found with intentionally violent crime. It can also apply to a defendant whose reckless conduct shows little or no regard for human life. The Court of Criminal Appeals found this to be the case in the recent opinion in State v. Boldus, M2011-0036-CCA-R3-CD (Tenn. crim. App. 8-11-2011).
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Sixth Circuit Addresses Retroactive Application of SORNA
In July 2006, Congress passed the Sex-Offender Registration and Notification Act ("SORNA"), which provides federal criminal penalties for sex offenders who move across state lines and fail to comply with sex offender registration requirements. The act indicated that the Attorney General would have the authority to specify how and to what extent the act would apply to sex offenders convicted before enactment of SORNA or before implementation of SORNA in a particular jurisdiction. Subsequently, the Attorney General has indeed ruled that the provisions of SORNA are to apply to all sex offenders, regardless of when the convictions occurred and regardless of when implemented in particular jurisdictions. Federal courts are still trying to sort out which offenders are subject to SORNA and which are not.
