Knoxville Criminal Law Attorneys Blog

DUI Charges Dismissed Due to Lost Video Evidence

2012-02-23T23:15:26Z

The State has a duty to preserve evidence in its possession in a criminal case. When it fails to do so, consequences can range from simply a corrective jury instruction, to exclusion of some of the remaining evidence, or even dismissal of the criminal charges. In the recent case of State v. Merriman, M2011-01682-CCA-R3-CD (Tenn.Crim.App 2-17-2012), the Tennessee Court of Criminal Appeals upheld a trial court's dismissal of a DUI case where the State lost the digital video recording of the pursuit and stop.

]]> In considering a remedy for the State's negligent loss or destruction of evidence, a trial court must consider 1) the degree of negligence involved; 2) the significance of the lost or destroyed material in light of the value of secondary or substitute evidence available; and 3) the sufficiency of the other remaining evidence. State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999).

In the Merriman case, the police simply lost the digital recording of the stop and pursuit, which led to the charges in question. The trial court found this significant enough to warrant dismissal of the charges against the Defendant. The State appealed the ruling. The State argued that the standard of appellate review on this issue should be de novo. The Defendant argued it should be reviewed under an abuse of discretion standard. The Court of Criminal Appeals concluded the abuse of discretion standard was the proper standard of review and, applying that standard, upheld the trial court ruling.

This case does not create a general rule that lost video must result in dismissal of DUI charges. That was the result in this case. But a trial court must consider the particular circumstances of any individual case under the Ferguson standard. If the trial court had applied the Ferguson criteria in this case and declined to dismiss the charges, that ruling also may have been upheld under a standard of review of abuse of discretion. The Merriman case allows trial courts wide discretion in handling issues of lost or destroyed evidence.

For advice concerning a particular set of facts where evidence in possession of the State may have been lost or destroyed, contact Hindman & Associates.

Statement to Clergy Admissible Evidence in a Child Sex Abuse Case

2011-12-19T23:13:11Z

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).

]]> The Defendant in that case was charged with multiple incidents of sexually abusing his stepdaughter. In addition to other evidence, the State introduced at trial the testimony of two church pastors who claimed that the Defendant had admitted the conduct to them. The Defendant challenged the admissibility of that evidence, claiming the clergy-penitent privilege. The trial court admitted the testimony because the statements pertained to known or suspected child abuse. The Court of Criminal Appeals affirmed that ruling, and ultimately the Defendant's convictions and sentence. The Court noted that the only communication privilege in Tennessee that would protect these statements is attorney-client privilege.

Of course, the pastors were not the only people to which the Defendant had admitted the conduct. He also admitted it in an interview with DCS investigators. His challenge to the admissibility of that evidence was that he was not properly Mirandized. That challenge also failed because he was not in custody when he made those statements. He was free to leave, and did leave after the interview.

For more information on what may or may not be considered privileged communication in a criminal case, contact Hindman & Associates.

State Wins a Missing Evidence Appeal

2011-11-10T20:45:36Z

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.

]]> The Defendant, who was accused of shooting out a Knoxville red light camera, argued that he should be able to obtain the damaged camera housing and have it subject to ballistics testing by a defense expert to determine if some argument could be made that the damage was not consistent with the Defendant's weapon and ammo, or the Defendant's location when the shots were heard. The Defendant also claimed the rifle scope lens casings taken from him at the scene of the arrest were potentially exculpatory and had been lost by the State. The State had recovered and photographed the camera housing, but had returned the broken housing back to the contractors who operated the camera system, where the housing was perhaps recycled.

In analyzing the missing evidence issue under Ferguson, the Court of Criminal Appeals agreed with the Defendant and the trial court that the missing housing was significant. The Court did not find that the scope lens casings were significant, as there was no way anything about that could be exculpatory to the Defendant. In considering the effect of lost or missing evidence under Ferguson, a court considers the degree of negligence involved, the significance of the lost or destroyed evidence, and the sufficiency of the remaining evidence. The Court determined that the loss or destruction of the broken camera housing was a matter of simple negligence by the State, rather than gross negligence. The Court noted that the photographs of the broken housing were not a valid substitute, as the photographs could not be subject to the same testing. However, the Court also found that the other evidence of the Defendant's guilt (of which there are some details in the previous post on this case) was strong. In weighing all the factors, the Court concluded that some remedy to the Defendant was appropriate. But that dismissal of the indictment was not necessary and the Defendant could still receive a fair trial. The remedy was that the photographs of the broken housing should not be admitted into evidence by the State. Otherwise, the trial should proceed on the remaining evidence.

For more information on the legal impact of lost or destroyed evidence in a criminal case, contact Hindman & Associates.

State Wins a Search and Seizure Appeal

2011-11-10T20:35:37Z

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.

]]> Early one morning in November 2007, Knoxville Police Department patrol officers stopped near the intersection of Broadway and Interstate 640 heard gunshots. There were four shots and the officers believed they were coming from the area of a closed business. As they drove around the building, they observed the Defendant's van exit from behind the building at high speed. The KPD officers stopped the van and took the single occupant into custody. They found two rifle scope lens covers in his coat pocket. The officers could see a rifle bag inside the van. Shell casings were found in the parking lot from where the van had been. Officers noticed that a red light camera had been shot. Upon questioning the Defendant, the Defendant indicated he believed he would be in trouble if he said what he was shooting at. He further explained that he was upset about getting a ticket from a red light camera. With the Defendant secured away from the vehicle, officers searched the van and recovered a Ruger rifle and a box of rifle rounds with four bullets missing.

The Defendant was charged with felony vandalism and reckless endangerment. Eventually, the trial court granted a motion to exclude the evidence recovered from the van, on the basis that the warrantless search of the van was not justified by an exception to the warrant requirement (citing Arizona v. Gant, 129 S.Ct.1710 (2009)). The State appealed. In reversing the trial court, the Court of Criminal Appeals noted that there were two exceptions to the warrant requirement which applied in this case. First, the rifle bag was in the plain view of officers outside the van. Second, the Gant case still allows a warrantless search to occur where it is reasonable to believe that a vehicle contains evidence of the arrest offense.

For more information on whether a particular search and seizure may be reasonable, contact Hindman & Associates.

Conviction Reversed Due to Improper Use of Character Evidence

2011-10-13T01:25:42Z

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.

]]> The Defendant was on trial for aggravated sexual battery. During the trial, defense counsel attempted to cast doubt on the credibility of accusations made by the victim. He cross-examined witnesses about the victim's demeanor and behavior during an interview with a detective, suggesting the victim was not taking the situation seriously. In addition, during cross-examination of the victim, defense counsel suggested the victim's testimony at trial was inconsistent with previous statements she had given. The State sought to call rebuttal witnesses to testify that the victim was a truthful person. The State argued successfully to the trial court that defense counsel, in suggesting that the victim was fabricating the allegations, had attacked the victim's character for truthfulness.

The Court of Criminal Appeals disagreed with the State and the trial court. In addition, as the victim's credibility was critical to the case, the Court found the improper admission of this testimony to be reversible error. The Court distinguished between an attack on the victim's credibility as it pertained specifically to the case, as opposed to an attack on her general character for truthfulness. In the Court's view, the Defense had only attacked the credibility of her testimony, and had not attacked her character. Therefore, testimony supporting her character for truthfulness was inadmissible.

For more information on the admissibility of specific evidence at trial, contact Hindman & Associates.

Sometimes Color Matters in Search Warrants

2011-09-22T22:57:26Z

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.

]]> The police had an informant who had seen cocaine in the blue home at the address in question. The police reviewed property records and satellite photos to identify the place. They were aware there were two buildings but apparently thought one of them was unoccupied. And from the satellite photos they misread the color of the suspect house (or assumed it was the same as the other building). They did not conduct actual physical surveillance of the address to make sure they were describing it accurately (perhaps due to concern about alerting the residents to the investigation).

The police knew which building they wanted to search. They searched the right one. However, to authorize it, the search warrant must describe it in a way to limit the authorization to a specific place for which there is probable cause to search. In this case, the trial court and the Court of Criminal Appeals determined that the warrant would have authorized the search of the other occupied residence at the address, for which there was no probable cause to search. That made the warrant over-broad and invalid.

For more information on the validity of a search warrant, contact Hindman & Associates.

Defense Wins a Vehicle Search and Seizure Case

2011-09-19T22:52:02Z

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.

]]> The Court agreed that an officer may order a motorist to exit the vehicle during a valid traffic stop, when doing so for officer safety. Pennsylvania v. Mimms, 434 U.S. 106 (1977). But the Court also noted that a traffic detention should not last longer than necessary for the purpose of the stop. Florida v. Royer, 460 U.S. 491 (1983).

In the Donaldson case, the Defendant was stopped for an improper right turn at a red light and for failing to signal the turn. The Defendant remained inside his vehicle while the police officer checked the Defendant's license and registration and wrote a traffic citation. The officer then returned to the Defendant's vehicle to give him back his license and registration and have him sign the citation. But the officer decided at that point he also wanted to observe the Defendant further. So he asked him to get out of the vehicle to sign the citation. The police officer testified at the suppression hearing that it was his usual practice to do this. Prior to this, he had not observed anything specifically suspicious about the Defendant.

As the Defendant exited the vehicle, the officer noticed a bag of white powder in the driver's side floor board. The Defendant was subsequently arrested and charged with possession of cocaine (with intent to sell) in a school zone.

The trial court excluded the evidence and the State appealed that ruling. In upholding the ruling on appeal, the Court of Criminal Appeals noted it was significant that the officer did not ask the motorist to exit the vehicle at the beginning of the stop, but only after he had properly checked the license and registration and issued the citation (which the Defendant had not yet signed). In the Court's view, the purpose of the stop had effectively concluded and the facts did not indicate that the motorist was asked to exit the vehicle for a safety issue. The officer's testimony was that he simply wanted to observe the Defendant's demeanor further. That's not a basis to extend the duration of the stop.

For more information on whether a particular search and seizure may be reasonable, contact and Hindman & Associates.

State Loses Appeal on Double Jeopardy Issue

2011-09-07T22:39:53Z

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.

]]> Though the Tennessee Attorney General has previously opined that criminal prosecution for violating an order of protection in addition to criminal contempt prosecution is constitutional, the Tennessee Court of Criminal Appeals has recently determined that in some cases it may not be. That was the case in State v. Matthews, M2010-02010-02601-CCA-R3-CD.

In the Matthews case, the Defendant was first prosecuted for criminal contempt for a single violation of an order of protection, then charged with a crime for violating a statute criminalizing violations of orders of protection. The Tennessee Court of Criminal Appeals found that this may be permissible under the protections of the United States Constitution as interpreted by the U.S. Supreme Court. Criminal contempt and the criminal statute contain different offense elements. However, the Tennessee Supreme Court has adopted the view that under the Tennessee Constitution's own double jeopardy protections, courts should consider not just whether the different statutes have the same elements, but also whether they have the same purpose. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). In analyzing a double jeopardy claim under Tennessee law, courts must consider whether the statutes have the same elements, whether they have the same purpose, whether the convictions rely upon the same evidence, and whether there are multiple victims or multiple discrete acts. Denton.

In the Matthews case, the Court of Criminal Appeals determined that the criminal contempt charge and the criminal statute served the same purpose, relied upon the same evidence, and involved the same victim and same acts. Therefore, in this case, the trial court was correct in dismissing the criminal conviction as violative of protections against double jeopardy, after the criminal contempt prosecution. The Court of Criminal Appeals affirmed the trial court ruling in a State appeal of that ruling.

For more information on whether specific dual convictions may violate protections against double jeopardy, contact Hindman & Associates.

Testimony is Sufficient Evidence Where Video is Inconclusive

2011-08-25T21:38:14Z

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).

]]> In that case, the trial court listened to testimony from the officer who initiated the stop of the Defendant's vehicle. The trial court reviewed the video recording events leading to the stop. The video was poor quality due to poor lighting. The trial court acknowledged it was inconclusive. But the Defendant's challenge to the stop was denied and the Defendant was convicted of DUI.

On appeal, the Defendant argued two Tennessee cases in which the Tennessee Supreme Court reversed convictions after finding that the video evidence did not support a legal basis for the initial stop. State v. Binette, 33 S.W.3d 215 (Tenn. 2000) and State v. Garcia, 123 S.W.3d 335 (Tenn. 2003). In the Binette case, the State had not presented at the suppression hearing the testimony of the officer initiating the stop. So the ruling had to be based on the video, which did not show a specific valid basis for a stop. In the Garcia case, the video, in the Court's view, contradicted the testimony of the testifying officer.

In the Patterson case, the Court of Criminal Appeals found the video to be inconclusive. However, though it did not corroborate the testimony of the officer, it also did not contradict it. The video itself did not offer enough information to determine whether the Defendant was swerving across lanes as described by the officer. But the officer specifically testified that the Defendant was swerving and that testimony, accredited by the trial court, was sufficient for the trial court to find that the State had established reasonable suspicion for the stop.

For more information on what evidence may support a legal basis for the stop of a vehicle, contact Hindman & Associates.

Consecutive Sentencing Upheld in a Vehicular Homicide Case

2011-08-18T22:52:23Z

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).

]]> In the Boldus case, the Defendant pled guilty to vehicular homicide by recklessness and leaving the scene of an accident involving death. The Defendant, who was nineteen at the time of the crime, had been driving with a blood alcohol level of .11 and crashed the vehicle, killing a passenger. The trial court, in rendering a sentencing decision, ordered the sentences for both crimes to run consecutive to each other and ordered that they be served in incarceration (no probation). The trial court found the Defendant to be a "dangerous offender with little or no regard for human life" based on the reckless circumstances which led to the death of the victim in this case, and the Defendant's own acknowledgment that he had driven while consuming alcohol on previous occasions. In addition, the trial court found the Defendant had continued to consume alcohol unlawfully even after the criminal incident in this case.

When relying upon the "dangerous offender" condition, the trial court must also find that the consecutive sentencing is reasonably related to the seriousness of the offense and is necessary to protect the public from further criminal conduct of the defendant. The Court of Criminal Appeals affirmed the trial court's reliance on the "dangerous offender" condition in this case to impose consecutive sentencing for vehicular homicide and leaving the scene of an accident involving death.

For more information on when a trial court may order consecutive sentencing for multiple convictions, contact Hindman & Associates.

Sixth Circuit Addresses Retroactive Application of SORNA

2011-08-08T19:44:36Z

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.

]]> The Sixth Circuit has been active in the debate among federal circuits and has issued another important ruling in U.S. v. Trent 08-4482 (6th Cir. 8-5-2011). Trent was convicted of a sex offense in Indiana in May 2007. In December 2007, he was discovered in Ohio, arrested by federal authorities and charged under SORNA for failing to register there as a sex offender. He pled guilty, reserving the right to appeal the issue of whether SORNA applied to him, as it had not yet been implemented in Ohio.

After Trent's plea but before ruling on his case, the Sixth Circuit ruled in another case that SORNA did not apply to any offender convicted before enactment until the Attorney General issued its guidelines on retroactivity, the effective date of which the Sixth Circuit determined to be August 1, 2008. U.S. v. Utesch, 596 F.3d 302 (6th. Cir. 2010). In the Trent case, the Sixth Circuit ruled that it also does not apply to those in jurisdictions where SORNA was not implemented prior to the effective date of the Attorney General guidelines. Trent was not, in the view of the Sixth Circuit, subject to SORNA in November 2007, which is when he was alleged to have failed to comply with it. His conviction was reversed.

Trent may still have been in violation of Ohio sex offender registration requirements.

The Sixth Circuit notes in the Trent opinion that there is disagreement among the federal appeals circuits on this issue. Some have ruled that SORNA is retroactive independent of the Attorney General Guidelines. Others have agreed that retroactivity is dependent on the effective date of the guidelines, but have determined different effective dates of the guidelines.

For more information on the applicability of specific federal criminal statutes, contact Hindman & Associates.

Defense Win in a Search and Seizure Case

2011-08-03T18:44:00Z

Appellate challenges to trial court rulings on admissibility of evidence in criminal cases, including questions of whether a particular search and seizure was reasonable, do not often result in reversals. Appellate courts must rely on a trial court's findings of fact and determine whether the trial court's application of law to those facts was reversible error. The recent case of of State v. Mejia, E2010-00745-CCA-R3-CD (Tenn.Crim.App. 7-27- 2011) did result in the reversal of the trial court ruling and dismissal of charges against the Defendant in that case.

]]> The Defendant was convicted of simple possession of cocaine. The evidence was obtained when police officers responded to a disturbance at a bar and searched the Defendant, who was present outside the bar. The Defendant was apparently arguing with a woman about car keys and was agitated. There was also a crowd which had gathered outside, causing the police officers some concern. A police officer informed the Defendant he was going to pat him down for weapons. The pat down revealed a pill bottle which contained cocaine.

The officer who patted down the Defendant testified that he had interacted with the Defendant on a number of occasions before and that the Defendant had always been cooperative and compliant. The officer had not known the Defendant to carry weapons. The officer believed the Defendant was still on probation from a prior drug case.

The Defense challenged the search in the trial court, arguing that there was no reasonable suspicion to justify the pat down. The trial court found the search to be reasonable because the Defendant was involved in a domestic dispute and the situation was volatile. The Defendant, charged with a felony drug offense, was subsequently convicted of a misdemeanor after a bench trial. The Court of Criminal Appeals agreed with the Defense that the search was unreasonable and the evidence should be excluded and conviction dismissed.

Though the Defendant was agitated and arguing with a woman outside a bar (and the dispute resulted in a crowd and a call to the police), the Court of Criminal Appeals found the situation did not yet justify a check to discover whether the Defendant was armed. In arriving at that conclusion, the Court found it significant that the Defendant was known to the officers and had not been known to be violent or to carry weapons in the past. It is unclear from the ruling how critical that fact was to the outcome. If the Defendant had been previously known to possess and/or carry weapons, this outcome may have been different. What if the responding officers knew nothing about him at all?

For more information on questions of search and seizure, contact Hindman & Associates.

Evidence of Gang Affiliation Relevant to Motive and Intent

2011-07-29T01:58:12Z

In Tennessee criminal proceedings, character evidence is not generally admissible to prove that a defendant acted in conformity with a character trait. So the State would not be allowed to introduce evidence of gang affiliation to show that a defendant, as a gang member, is likely to be guilty of the types of crimes that gang members generally commit. However, evidence of gang affiliation may be admissible if it is relevant to some specific issue (other than just being introduced to impeach the defendant's character).

]]> In the recent Tennessee case of State v. Guerrero, M2010-00851-CCA-R3-CD (Tenn. Crim. App. 7-25-2011), the Court of Criminal Appeals agreed with the trial court that evidence of gang affiliation was probative of motive and intent and therefore admissible.

The Defendant in that case was convicted of two counts of first degree murder. The Defendant, along with two other men, had been in a vehicle from which a co-defendant had fired a weapon into another vehicle. Two people in the target vehicle were killed as a result. Earlier in the evening, the Defendant and co-defendants had been at a party at a Nashville National Guard Armory. A fight had erupted at the party, ostensibly between members of rival gangs. The Defendant, during an interview with the police, told police that he and one co-defendant were members of a gang called "Vikings" and that the other co-defendant was a member of a gang called "Gangster Disciples." The Defendant and co-defendants were "folk" with each other. They had targeted the vehicle in which the victims were killed because they believed they had seen members of a rival gang get into that vehicle at the Armory.

The Defense at trial sought to exclude the Defendant's statements of gang affiliation as irrelevant and inadmissible character evidence. However, the trial court and the Court Criminal Appeals found that the statements regarding the Defendant's gang affiliation were relevant to help prove his motive and intent as an accomplice to fellow gang members in targeting and attacking victims who they believed to be rival gang members.

For more information on when and how character evidence may be admissible in a criminal trial, contact Hindman & Associates.

Underage Consumption Conviction Overturned

2011-07-22T03:12:55Z

Post-conviction relief from a plea agreement is uncommon in Tennessee criminal law practice. Post-conviction relief from a misdemeanor plea to underage consumption is all the more rare. It was granted by the Court of Criminal Appeals in the recent case of State v. Word, M2011-00082-CCA-R3-PC (Tenn.Crim,.App. 7-18-2011).

]]> Mr. Word, without counsel at the time, pled guilty in Putnam County General Sessions Court to underage consumption. He received a sentence of eleven months and twenty-nine days, suspended upon compliance with the terms of probation. The problem was that he was not properly charged with anything. He had been given a citation alleging that he committed the offense of underage consumption, citing T.C.A. 57-5-301, which prohibits underage possession of beer. The affidavit of complaint referencing the citation alleged Mr. Word had violated T.C.A. 1-3-113. He pled guilty to a violation of T.C.A. 1-3-113, which doesn't provide a specific criminal penalty for underage consumption (thought it indicates it is unlawful). Neither the affidavit of complaint nor the citation alleged any specific facts which if accepted as true, would establish a criminal offense. The citation merely alleged that Mr. Word was guilty of underage consumption. The narrative section, which is normally used to briefly describe the unlawful conduct, was blank.

Mr. Word filed a timely petition for post-conviction relief. The post-conviction court held a hearing and denied relief. The Court of Criminal Appeals reversed.

The Court of Criminal Appeals found that Mr. Word was never properly charged with a crime. The charging instrument did not sufficiently apprise him of the offense for which he was accused. Nor did it allege any facts that would establish an offense. Because there was never a valid criminal charge, the prosecution was invalid and the General Sessions Court lacked jurisdiction to accept a plea agreement. The conviction and sentence were vacated, and charges dismissed.

For more information on whether a particular warrant, citation, indictment, or presentment properly alleges a criminal offense, contact Hindman & Associates.

From Cell Phone Photography to Search Warrant

2011-07-09T06:37:38Z

Wal-Mart usually isn't a place that most people would consider ideal for some photography practice. But for one man and his cell phone, it turned out to be a particularly bad idea. One leading indirectly to a felony conviction for sexual exploitation of a minor.

]]> In the case of State v. Herrera, W2010-01826-CCA-R3-CD (Tenn.Crim.App. 7-5-2011), the Defendant pled guilty to sexual exploitation of a minor after a search warrant led to the discovery of alleged unlawful images in his home. The search warrant, which authorized a search for images in his home and all of his electronic media, originated from an allegation of unlawful photography and sexual battery of an adult female shopper at Wal-Mart.

In July 2009, the Defendant allegedly grabbed a woman's buttocks at Wal-Mart. Then in August 2009, at the same Wal-Mart, the Defendant allegedly attempted to take a cell phone photo up the skirt of the same woman as she was reaching down to grab a box. This time she reported both incidents. A security camera had captured the July incident and allegedly indicated that the Defendant may have been attempting to photograph the woman on that occasion also.

Wal-Mart was able to discover the Defendant's identity. A search warrant was obtained to look for images, digital or print, throughout the Defendant's home and electronic media. The basis of the search was to look for evidence of the unlawful photography of the woman from the August incident and sexual battery from the July incident. Unfortunately for the Defendant, the search turned up 715 digital photos which investigators alleged were child pornography.

The Defendant's lawyer correctly pointed out, in challenging the validity of the search warrant, that the facts relating to the unlawful photography allegation did not allege a crime under then existing Tennessee law. (T.C.A. 39-13-605 has since been amended in attempt to cover nonconsensual up-skirt photography in a public place). When the trial court ruled the evidence admissible, the Defendant entered a plea agreement and reserved a certified question of law challenging the warrant.

The certified question addressed the unlawful photography basis of the search warrant. However, the Court of Criminal Appeals found that the question was not dispositive of the case, since the search warrant was justified to search for photographic evidence to corroborate the July 2009 sexual battery allegation. According to the Court, a photo of the alleged victim, if discovered in the Defendant's possession, could have helped corroborate the sexual battery allegations.

For more information on criminal search warrants, contact Hindman & Associates.