So I am preparing a Rule 11 Application to the Tennessee Supreme Court, as we criminal defense attorneys routinely do. I’m asking them to accept a case where a tremendous amount of gang testimony was admitted at trial, even though the murder was a domestic-related situation. Not surprisingly, it is the defense position that the gang stuff was extremely prejudicial and not really that relevant to whether the defendant committed this specific murder.
Anyway, case law about the admissibility of gang testimony is relatively new – at least in Tennessee. That’s not hard to imagine because it has only been in about the last twenty years that gangs have become better organized and more influential in all parts of the state. Which brings me to my treat for you today: the Juggalos.
In State v. Fritts, which the Court of Criminal Appeals cited as one of the leading cases about whether gang expert testimony is permissible, we learn about the Juggalos. Fritts was the defendant in the murder of his mother-in-law. Fritts lived with his girlfriend, girlfriend’s child, mother-in-law, and father-in-law.
Let’s be clear, Fritts was not winning any citizenship awards.
He worked sometimes at Arby’s and then, in line with the credo of the Insane Clown Posse, he wanted to live off of others. While I could have picked ICP out of a photo line-up, prior to reading this case, I didn’t know they encouraged such free-loading. One day, while his girlfriend and her father were gone from the house, Fritts’ mother-in-law struck more than 10 times with a hatchet. The hatchet was a weapon that was routinely kept in the in-law’s house. Apparently, ICP also encourages violence – specifically with hatchets. Fritts was accused of the murder, and really couldn’t account for his whereabouts until he arrived at the Knoxville West Town Mall later that day. Fritts also had the victim’s blood on his pants and shoe, which is not a great fact.
The police found a SpongeBob Square Pants (not kidding) notebook that had some musings about the ICP, and next thing he knew, Fritts was a full-blown gang member. I had two main thoughts when reading this case: 1) Doesn’t Fritts have to have, like, one other person, in his gang locally? Or is he just considered part of the larger Juggalo nation? 2) Secondly, this is ANDERSON COUNTY, TENNESSEE, NOT Detroit. (ICP originated from Detroit.) However, the trial judge found that the someone from the TBI could come in and testify about Fritts and the background of the ICP gang.
Here’s a snippet of the expert testimony:
ICP gang, an offshoot of the Insane Clown Posse band, based on specific criteria. He explained that the Insane Clown Posse band promotes violence through its music, which references decapitation, mutilation, and disembowelment and that followers of this band, called jugalos or jugolettes, are identified as members of the ICP gang when they commit crimes in the name of the gang. Detective Walker stated that the ICP gang had been designated as a street gang in Knox County and had been recognized as a gang in other parts Tennessee. He stated that the “Running Hatchet Man,” which is a symbol of the Insane Clown Posse band, is commonly used in identifying ICP gang members. He also stated that a common hangout for the ICP gang is the West Town Mall in Knoxville. Detective Walker testified that many ICP gang members write their own lyrics and that he found similar lyrics, which mentioned decapitation, mutilation, and dismemberment, in Fritts’s notebook. He also stated that white paint is part of the typical makeup for followers of the Insane Clown Posse band. He opined that Fritts was a member of the ICP gang based on the red hoodie sweatshirt bearing the picture of “the Wraith” that he was wearing the day of the victim’s death, the lyrics written in his notebook, his tattoos of the “Running Hatchet man” and “Jugalo for Life” that were displayed to the jury, and the substantial time he spent at the West Town Mall.
And another detective described rural America's worth nightmare with the following testimony:
Detective Walker testified that the Insane Clown Posse or ICP, was “a rap band or horror core band” and the ICP gang was an offshoot of the musical group. ICP gang members referred to themselves as “jugalos” or “jugalettes” and did not believe in abiding by society’s laws. They did not work, did not bathe, and rebelled against everything. He explained the belief system of an ICP gang member:
*11 Basically, they just want to listen to music, you know, play video games, write their own lyrics to their songs. They have to live the life of a good jugalo in order to pass the six trials and tribulations of the dark carnival, which are the six clowns that are featured on the six albums. Each album has its own meaning. You have to listen to it and figure out what your hidden meaning is for each album, in order that when you die your spirit is drug into the dark carnival and then you must pass the six trials and tribulations to make your way into Shangra–Lai or hell’s pit depending on your belief system on that.
Okay. Basically once you pass your six trials and tribulations, if the clowns believe you’ve lived the life of a good jugalo, then you will go to Shangra–Lai. They don’t believe that at any given time during the six trials and tribulations then you will go to hell’s pit. How you live the life of a good jugalo depends on the individual philosophy of the individual listening to it.
You can take the songs of ICP literally which say, you know, you’re supposed to kill people or you’re supposed to dismember or whatever or you just don’t follow society’s rules. You don’t want to get a job. You live off of whatever you can. You know, it’s just not following society’s rules and laws.
I mean, who WOULDN’T want to convict someone that subscribed to that thought process?! And isn’t that the purpose of Rule 403? Ultimately, is the evidence that makes you despise the defendant, really so relevant that we should take a risk admitting it?
The Court of Criminal Appeals determined that the trial court had no abused its discretion in allowing expert testimony from a “gang expert” because the murder was committed with a hatchet.
From the mouths of judges: " Specifically, Detective Walker’s testimony connected Fritts’s membership in the ICP gang to the victim’s murder because it explained the violent manner in which the victim was killed, the use of a hatchet as the murder weapon, and the presence of white paint on the victim’s hand and face. See Tenn. R. Evid. 401 (“ “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”). "
To read the full Fritts opinion, click HERE.
Any defense attorney worth their salt knows how important it is to tell a story, and I think most of us our pretty good at doing so at trial. But what about during appeal?
This story was published in the ABA Journal but I really enjoyed it, and it's a helpful reminder to write with purpose and some spunk - even during those boring appeals.
Phew. When Gary Wade left the Supreme Court, things really started changing. Wade authored the 2013 Moats opinion, which was expressly overturned by the Tennessee Supreme Court in State v. McCormick. Moats was a close decision – a 3-2 split in 2013, with Wade, Holder, and Lee in the majority and Koch and Clark dissenting. In McCormick released on May 10, 2016, Lee joined three other justices (Clark, Kirby, and Bivins) in finding that: “Moats was wrongly decided, we overrule Moats and hold that the community caretaking doctrine is analytically distinct from consensual police-citizen encounters and is instead an exception to the state and federal constitutional warrant requirements which may be invoked to validate as reasonable a warrantless seizure of an automobile.” What a major change to the law in the last 3 years.
Let’s talk about McCormick. Specifically, do the facts of this case warrant a change in the law and overruling of Moats?
It’s 3 a.m. in White County, and a Highway Patrolman sees a Tahoe that he believes is partially blocking the roadway. As he gets closer, he discovers it isn’t blocking the roadway, but it’s blocking 75% of the entrance into Save-A-Lot. (Bad fact.) While most people don’t want to save a lot at 3 a.m. the officer was concerned that someone might hit the vehicle and he pulled behind, himself parking in the roadway, and activated those beautiful blue lights. The officer approached the vehicle, engine running with headlights on, and observed the driver slumped over the wheel. (Bad fact.) Loud music was blaring inside the vehicle, and the officer could not rouse the driver after knocking on the window. (Real bad fact.) The officer opened the door to what could best be described as “a hot mess.” The defendant reeked of alcohol, had McDonald’s food in his lap with sauce all over his face, and a bottle of beer in the center console. (C’mon!) Not surprisingly, after ensuring the defendant was “okay,” they got him out of the vehicle where he indicated he was drunk as a skunk. Defendant further stated he believe it was 11:30 at night and he had consumed five or six beers starting at 7:00 p.m. The real kicker occurs when the defendant is seated in the backseat of the cruiser and another vehicle tries to enter the parking lot. The officer asks the defendant if he knows who is in the other car, to which the defendant replies: “No, I sure don‟t. I‟m sorry. I‟ve had too much to drink.” Four cold beers and a bottle of legally-obtained Xanax were recovered from the Tahoe.
Let’s be clear, this set of facts is completely distinguishable from those in Moats – so you’ll want to carefully contrast them. In Moats, it was 2 a.m. and the defendant was also in a grocery store parking lot, but the engine was turned off, and the defendant rolled down his window and responded that he was “fine” when police came knocking. In Moats, the officer had not seen anything illegal or unsavory occur; the officer had merely been curious about why a vehicle would be parked with its lights on in the parking lot.
McCormick comes to some unfortunate conclusions based on a set of facts that I think most people would agree clearly allowed the police to make a welfare check.
The Supreme Court analyzed this case by asking: The first relevant question for purposes of this appeal then is whether Sgt. Trivette’s actions in parking behind the defendant’s vehicle and activating his patrol car’s rear blue lights amounted to a warrantless seizure or was merely a consensual interaction between the defendant and the officer. If the latter, then the state and federal constitutional protections against unreasonable searches and seizures are not implicated. Id. However, if Sgt. Trivette’s actions amounted to a seizure, then the warrantless seizure is presumed unreasonable, but the presumption may be overcome, and suppression of evidence avoided, if the State demonstrates that the seizure was conducted pursuant to one of the exceptions to the warrant requirement. (p. 6 of the Opinion.)
The State argued that Moats should be overturned, so that police officers may activate their blue lights in order to complete a welfare check, and there should be an exception to the warrant requirement based on the community caretaking doctrine. The Supreme Court agreed.
In making this exception, the Tennessee Supreme Court cites to the SCOTUS decision of Cady v. Dombrowski, which found a lesser expectation of privacy in motor vehicles. The Court also cites to a lengthy list of cases from other jurisdictions that allow a community caretaking exception. (Footnote 9.) The Court held that Cady did not limit the community caretaking exception to consensual encounters between citizens and police, and found that the exception was for a laudatory purpose that is widely-accepted. The Tennessee Supreme Court discussed the doctrine of stare decisis, but found more “good than harm” would be done by overruling Moats.
So what is the community caretaking exception? How do we know if it is reasonable? First, the Supreme Court says it doesn’t matter what the officer was thinking, as long as his actions “objectively justify the action.” Does this mean that an officer’s true intent of busting a well-known drug dealer is okay, as long as he can justify that he was just working to care for the community? Citing the Moats disstent, the Court states: “[r]equiring the State to prove that a police action was motivated solely by community caretaking concerns would inappropriately shift the focus to the officer‟s (irrelevant) subjective motivations.” (Personally, I’m really not crazy about that language. The Government is seizing you – shouldn’t they have to explain what the motivation was/is?!)
The exception is adopted directly from the dissent in Moats. The caretaking exception is defined as: the State establishes that (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need. (Opinion, p. 16.)
The Court applies the facts of McCormick to the caretaking exception test, and the answer is a no-brainer; the officer was clearly acting within his duties to engage the defendant drunkenly slumped over his wheel, who was unresponsive except to the siren song of Mickey D’s secret sauce. But, realistically, following Moats and the previous law, wasn’t McCormick still legally seized? Would the Court's answer have been the same without overruling Moats? I think the answer is a clear, YES.
My two primary concerns are what the application of this test is going to look in high-crime areas, rather than rural counties, and that the subjective intent of the officer plays no role in determining the legality of the stop. How this all plays out, remains to be seen.
Read McCormick here: http://www.tsc.state.tn.us/sites/default/files/mccormickk_opn.pdf
Read Moats here: https://www.tn.gov/assets/entities/commerce/attachments/LETLegalUpdate-MoatsOpinion.pdf
It’s been too long since I’ve had an opportunity to sit down and think and write. The thinking is actually my favorite part of having a blog, as it gives me the opportunity to reflect on whatever is at the top of my list in my work life. (And let’s be honest, my work life is my basically my life.)
So what happened in April 2016? Going in reverse chronological order:
I attended a two-day capital defense seminar in Memphis, which is required (among other qualifications) if an attorney wants to sit as first or second chair in a death penalty case. Tamara Brady was the first speaker, and she discussed jury selection in the James Holmes’ trial (Denver movie shooter). Jurors on a death penalty trial must be willing to impose a death penalty (which eliminates all your die-hard pacifists), but not foaming at the mouth with enthuasism. In that case, jury selection took TWELVE (12!) WEEKS. That’s the boring stuff they don’t report in the media, and the thought of going through 9,000 jury questionnaires and individual voir dire almost made me drive back to Nashville just as soon as I’d arrived in Memphis. Death penalty work is a grind, and the people that do it are some of the most selfless people you’ll meet. My mantra in every high school math class I ever took was, “Why am I taking __________, I already know I’m going to be an attorney, this is so pointless.” Unfortunately, I have one of those personalities where, when I think something is totally pointless, I get all sassy and annoyed. That pretty much sums up my feelings on the death penalty. I don’t have to even think about the morality aspect – it’s just such a tremendous waste of money, and I am extremely skeptical about its ability to bring “closure.”
A highlight for my April was the dismissal of multiple A and B felony drug charges for a client. One of my clients, a non-U.S. citizen, “P” had his charges dismissed by the State after spending about 18 months in custody. P was arrested after fraternizing with a known heroin supplier, and when he was arrested, he had 45 grams of heroin in his pockets. Then he made admissions. I was appointed to the case about 7 months ago, and filed a motion to suppress based on an illegal seizure and search. I cited the classics, State v. Otey and Ybarra v. Illinois, arguing that P was illegally arrested. It was one of those motions that takes you much longer to write than it should, because you believe that you’ve got the facts and case law on your side, and you desperately want the judge to agree. Luckily, he did.
P will still go through immigration proceedings in Louisiana, but he won’t have a conviction on his record like he easily would have. The DA on the case was reasonable and easy to work with. P wasn’t a lifelong criminal and had never really been in trouble before. I think he understands that he could have gone to prison and this once-in-a-lifetime type of luck will never happen again – at least I hope he's never in a position to find out.
I plan to provide case law updates soon. Okay, fresh off my CLE hours, I've got TWO TAKEAWAYS from this post - and these, I think are really important:
1. Federalize all of your state law objections. If you are objecting based on a hearsay objection, and it would be applicable, also object based on the Confrontation Clause. If you can insert a federal basis for objection, you are really strengthening your client's appeals all the way down the line.
2. Read Wearry v. Cain. This case stood out to me during the case law review at the DP seminar last week, and if you've got a case involving a snitching co-defendant (who doesn't?), make sure to read this one from front to back. http://www.supremecourt.gov/opinions/15pdf/14-10008_k537.pdf At the trial level, it may give you some ideas of specific things to ask for.
Wearry v. Cain, released on March 6, strengthened Brady, and provided some really great language when we argue Brady issues (softening the requirement that Brady evidence “would” have made a difference to “could” have made a difference). Wearry looked at whether the Brady evidence would have “any reasonable likelihood that it could have affected the jury during deliberations.” That’s some nice language – definitely check it out.
The best stories you'll want to know about from Tennessee and around the country.
Certifications of Specialization are available to Tennessee lawyers in all areas of practice relating to or included in the areas of Accounting Malpractice, Business Bankruptcy, Civil Trial, Consumer Bankruptcy, Creditors’ Rights, Criminal Trial, DUI Defense Law, Elder Law, Estate Planning, Family Law, Juvenile Law, Legal Malpractice, Medical Malpractice, and Social Security Law. Listing of related or included practice areas herein does not constitute or imply a representation of certification of specialization.