Alright, we are back after a little hiatus for the holidays! However, the Thanksgiving week brought with it some defense victories, so let me share them with you. First, another reversal in Davidson County, for the improper admission of hearsay, in a child sex abuse case. Check out State v. John Daniel Simmons:
There’s quite a bit of hearsay case law in here, so it might be a fun read for civil attorneys as well.
But, I’m going to focus on a win out of East Tennessee - a case of incest. I didn’t even know we were charging people with incest these days, but leave it to East TN to really enforce the law. If you overhear any fights within a blended family (“I don't want to take her to the skating rink, she’s even NOT my full sister!”), you can cite this case as some sort of weird proposition, that the proper answer is, “Oh yes she is!” (As an only child, I'm really speculating on the types of fights siblings have.)
Anyway, let's talk about the Blake Children case. The incident happened around Thanksgiving 2011, when the defendant was 22 years-old, and the victim was 16 years-old. They were half-siblings (same mamas). The victim reported the abuse to a counselor, who then reported it to police. The report was that the defendant molested the victim when she was seven, and then had the victim perform oral sex around the time that she was sixteen and they were once again living together.
The Defendant was in custody for unrelated charges and the detective investigating the incident went to go see him in jail. She said it was the policy of the Morristown Police Department to not record, via audio or video, the interviews they had with suspects. First of all – WORST.POLICY.EVER. Second, if he was in custody on other charges, the responsible thing (and dare I say, constitutional) would have been to contact the attorney of record in his first case. But no one asked me. The detective makes arrangements: goes in to see Childress, asks some basic personal history, advises him why she is there, and eventually gets around to reading him his rights. Defendant denies the accusations and then states that he is willing to speak with her, but he wants to run it by an attorney first. Not a bad answer. The detective concludes the interview, but then has one last question: would he be willing to take a lie detector test?
Alright, folks, we can see this from a mile away, right? The classic bait-and-hook. “But, sir, just one more little logistical question, if you will, sir.” And like that, Childress agrees to talk with her, telling her what happened, but refusing to write it down or sign anything. (Note for those less-versed: you don’t have to write anything down, you don’t have to sign anything, and the police don’t have to tell you the truth, for it to still be used against you.) At the suppression hearing, the Defendant denied that he made statements admitting to oral sex with the victim, and he said that he agreed to talk to the detective because he believed she was going to ask him questions about a topic that he’d already been asked about. He testified that she continued questioning him after he stated he wanted an attorney.
This case went to trial after the trial court denied the defense’s motion to suppress the Defendant’s statements to the detective. At trial, the detective’s testimony changed, in that she stated the Defendant was the one that “reinitiated” conversation after she ceased questioning. The detective then testified about the substance of the Defendant’s confession.
At trial, the Defendant testified that he had signed the waiver of rights before he knew why the detective was even there to question him. He wanted to speak to an attorney after she advised him what it was about. He called the detective a liar and denied that he made those statements. (I’m not going to give you the play-by-play of the trial testimony, because it’s not relevant to the suppression issue – if you want those details, you’ll have to read the case.)
In this case, the Court of Criminal Appeals found that everyone agreed that the Defendant initially made a knowing, voluntary, and intelligent waiver of his right to remain silent and spoke with police. The first question is whether the Defendant then invoked his right to remain silent. In seeking an answer, the CCA cited the following:
The CCA found that the statement, “I will talk to you, but I want an attorney first,” was a clear and unequivocal invocation of his Miranda rights. (Other good responses are: “get me a lawyer!,” “I want to call a judge and a federal public defender,” “I want to talk to an attorney first,” or “I’d be willing to cooperate, but I’d like an attorney first.”) So, the Defendant clearly requested an attorney.
The CCA then looked at what happened next:
Once a Defendant asks for an attorney, the party is over. Period. End-of-story. There are not to be any additional questions asked. See page 9 of the opinion for the specific case law. The CCA found that this was not a case where, after invoking his right to counsel, the Defendant then engaged the detective to continue discussing the case. The Court found that the detective, not the Defendant, continued the engagement. There was no doubt the Defendant was in custody – he was in the attorney room at the Courthouse. This Court succinctly summarized its finding (from page 12 of the Opinion):
Read the full opinion here: https://www.tba.org/sites/default/files/childressb_112515.pdf
The Tennessee Supreme Court set up a task force to analyze how the $36 million dollars allocated to the Administrative Office of the Courts is spent and how it should be spent. I frequently tell people that we (attorneys) are making the Tennessee criminal justice system go-round on THIRTY-SIX MILLION DOLLARS. That's peanuts. That's less than peanuts - it's .1 percent of the entire budget of the State of Tennessee!!!! And that covers more than adult criminal defense; that also covers GAL's and juvenile defense.
The first meeting of the Task Force was held on November 6, and while I'm trying to remain positive, there was not a lot about which to feel positive. The general theme was, "how can we spend less money than we already do, on indigent defense representation?" My notes are a little hard to read, but there was mention of creating a system that is "fair, consistent, and predictable." The TF mentioned looking at the "delivery of services," and hinted at an appellate public defender system and expansion or reform of the public defender's conference. There was mention of the manner of payment to attorneys and compensation rates. (I also have "need more state dollars" listed in my notes, but I really don't remember that being said.) The representative from the AOC said he was "encouraged by contract services that have been implemented," and was referencing those for child support of judicial hospitalization. One TF member asked if there were certain types of cases that lent themselves better to contract services than others.
Judge Steve Dozier testified that he encourages indigent defendants to hire attorneys, but it is very expensive to hire an attorney and not everyone can afford to do so. He stated that a DUI can cost between $5,000 and $10,000. One TF member (also an attorney) said that he believed the problem was that young attorneys were unwilling to work for low rates. He pontificated that there was a gap in the pricing of legal services, and maybe young attorneys should charge less money for their services. (And I tell you, that would be much easier to do if the cost of law school had not sky-rocketed during the 2000's , and we had a trust fund or family wealth to pay our bills.) Another TF member and judge, believed that the attorneys taking appointments felt entitled to clients and, to some extent, indicated they were lazy. (I don't know if she meant it that way, but that was absolutely how it came across.) There was also discussion of revoking the bond of indigent defendants unless they would pony up and hire someone. There was a mention of pulling money from someone's military pension to make them pay a fee for an appointed attorney. And the list went on..... I'll try to locate the charts that show how monies are spent in Tennessee. Also, please sign up for TBA impact! TBA is doing great work, and you can keep abreast of all the meetings here: http://www.tba.org/news/indigent-representation-task-force-announced
The bottom line is, today in 2015, you're going to pay pest control, an electrician, a plumber, or a salon (be it nails or hair) more per-hour, than the State of Tennessee is willing to pay attorneys to defense someone's LIFE. My intent is not to be demeaning to any of those professions, because all are highly-skilled (i.e. people stay with their hair stylist for YEARS following them from salon to salon), but none of them require the financial or time-intensive investment that the practice of law requires.
The best comparison I can give, and one that I frequently use, is a child rape trial that a colleague asked me to try with him. I knew, right from the start, that I'd be losing money on the case, but the colleague approached me with three facts that I couldn't turn down: 1. this guy might really be innocent, 2. you'll get great trial experience, and 3. he's looking at 80 years in prison and I really don't want to do this alone. I'm so glad I did, but we were capped at $3,000. After working on the case for more than one year (he'd been on it longer), we prepped on Saturdays and Sundays for weeks in advance, we filed motions galore, and were in trial for 3 days before receiving a hung jury. I jokingly said that when we got paid by the AOC (which happened about 2 months AFTER we finished the trial) we were each going to roll around in our 10 one-hundred dollars bills, which is roughly what we got after taxes.
The State of Tennessee believed that this man's right to a counsel was worth $3,000. (The caps have since been raised to $5,000.)
Thankfully, the DOJ recognizes this issue is important, and the whole point of writing this post, was to link to Vanita Gupta's fantastic remarks a few days ago. Now, if we can only get Tennessee to read it!
It's no secret, and it's been said about 1,000 times, but the reason we call it the "practice of law" is because we are always practicing. It's impossible to master, and every day attorneys are actively learning something new. In the first couple years of practice , I was learning a LOT of new things at a terrifyingly-fast rate, and I lost a lot of sleep. Today, I still lose sleep, but I'm able to enjoy the learning process a lot more.
I didn't feel satisfied after last week's post on Search Incident to Arrest. I knew there had to be better case law out there; and there is. You should add State v. Otey and State v. Harris to your reading list. Today, I'm giving you a summary of State v. Richards, a case out of Williamson County that went in front of the Tennessee Supreme Court back in 2009. This is a case that I haven't been using much in my practice (I'm not sure I was even fully aware of the holdings), but I think it's hugely helpful to the defense bar - and it's helpful to anyone that likes Constitutional rights against unlawful search and seizure.
So consider this part 2 of part 1 of my series on warrantless searches. I hope y'all find it as useful as I did.
In State v. Richards, the Tennessee Supreme Court addressed whether the defendant’s search subject incident to lawful arrest was justified. State v. Richards, 286 S.W. 3d 873 (2009). A previously-reliable citizen informant provided a tip that three people were sitting around a picnic table in the backyard of a known-drug house engaging in drug activity. The police went to the house where they found the three around a picnic table, as well as the Defendant, who was the fourth person. The officers saw a white powdery residue on the surface of the table, which field tested positive for cocaine. As the police approached, another person at the table swept the table with his, dropping a corner baggie onto the ground. The police officers did not observe any suspicious or illegal activity, even though he was sitting at the table.
After an initial “pat down” search for weapons, police did not feel any evidence of weapons or drugs. One of the other people at the table consented to a search, which revealed white powder in the seat of his wheelchair. Police then re-searched the Defendant and found marijuana and cocaine in his pocket. A suppression motion was filed – the trial court denied it after making a finding that exigent circumstances existed, but the CCA reversed because police did not have probable cause to make an arrest and therefore, lacked a basis for the search.
In Richards, the informant stated that he had observed a “drug deal going down between Trent and the guy in the purple truck.” The informant provided a decent amount of detail: the names of the three people, what the people were drinking, and vehicles they drove. The officers walked into the backyard without announcing themselves and when the defendants saw the officers, they had “that look.” (By “that look,” I can only assume that the police were referencing THIS look: https://www.youtube.com/watch?v=B8ISzf2pryI.) Police told one of the suspects to turn over what was in his hand, which was a rolled-up dollar with white residue on it. He had no other drugs on him and was released on a citation. The man in the wheelchair was also cited, but not arrested. Notably, the white powder on the table was so insignificant, it couldn’t even be collected and sent to a lab – police field tested it right there on the table. Because of his proximity to the drugs, the Defendant was searched a second time, and the second search was more intensive than the initial pat down.
Citing Ybarra v. Illinois, the CCA determined that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” State v. Richards, 2008 WL 343150 *5 (Tenn. Crim. App. 2008) citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979). The Tennessee Supreme Court found two reasons supporting suppression. First, the CCA was correct that the arrest was not supported by probable cause “because the facts, circumstances, and reliable information known to the arresting officers were not sufficient to warrant a prudent person in believing that the Defendant had committed an offense.” The search of a person requires “individualized suspicion” – probable cause does not attach to groups, but to individuals. The Tennessee Supreme Court then cited a U.S. Supreme Court case (one of which I had never heard) U.S. v. DiRe, as standing for the proposition that “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” United States v. DiRe, 332 U.S. 581, 594 (1948). The Court also cited prior Tennessee case law holding that, “[o]ne’s mere presence in an area where drugs are discovered, or one’s mere association with a person who is in possession of drugs, is not alone sufficient to support a finding of constructive possession.”
The second reason for the invalid search arose from the record, which “fully supports the conclusion that the Defendant was placed under arrest only because the second search of his person yielded narcotics.” The people that could have been placed under arrest were merely cited.
If you're interested, Justice Koch wrote a dissent, which I didn't take the time to summarize, but may interest you.
Greetings, Tennessee! Today is the first part of a multi-part series that seeks to answer the question, “under what circumstances can police search someone (or their property) without an arrest warrant?” Law school wunderkinds will recall that there are FOUR circumstances in which a warrant is not needed:
People are arrested under lots of different circumstances – sometimes police already have an arrest warrant, other times they may be patrolling with the specific intent to arrest someone (think Crime Suppression Unit), and other times they may simply happen upon a crime in progress. When an arrest is lawful, police automatically have the right to search the individual. That does not mean they have the right to search a person’s cell phone.
In order to challenge a police search incident to arrest (layman’s terms: the search the police get to do because you are under arrest), the Defendant must establish three things:
(a) a legitimate expectation of privacy in the area searched, (b) the identity of the property to be suppressed, and (c) the items seized were obtained without a search warrant. When the accused establishes these three prerequisites, the burden shifts to the prosecution to establish the validity of the search incident to arrest. Burton, 751 S.W.2d at 445. State v. Transou, 928 S.W.2d 949, 958-59 (Tenn. Crim. App. 1996). Someone would expect privacy in the pocket of her pants walking down the Street, but wouldn’t be guaranteed that same expectation if she were walking into a prison to visit her boyfriend, T-Bone.
The next question is ‘what constitutes a lawful arrest?’ The easy answer is probable cause. The harder question is, ‘what constitutes probable cause?’
Searches conducted without judicial and magistrate approval, or without authorization of a search warrant are presumed to be per se unreasonable. Any time a person is detained, no matter how brief the detention, the Fourth Amendment kicks in.
In one of my pending cases, the main question I’m attempting to resolve is, “was my client’s arrest lawful?” Because, if it wasn't, the search and statements that followed would also be suppressed under the Fruit of the Poisonous Tree doctrine. (Special shout out to Wong Sun, which is one of my favorite poisonous tree cases, and a damn easy citation to remember.) In order to determine if the Defendant’s arrest was lawful, you’ve then got to peel back even more layers and assess whether the officer had probable cause to make the stop. In Tennessee, we employ a totality of the circumstances analysis, which assesses the officer’s testimony and factual knowledge in the context of his or her prior law enforcement background. However, mere suspicion is not probable cause. See Lawrence, 154 S.W.3d at 76 (citing State v. Melson, 638 S.W.2d 342, 350 (Tenn.1982).
"Probable cause to arrest exists if the officer has “facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the [individual in question] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); see also State v. Bridges, 963 S.W.2d 487, 491 (Tenn.1997)."
State v. Pearson, No. M200702257CCAR3CD, 2009 WL 928288, at *4-5 (Tenn. Crim. App. Apr. 6, 2009). That “prudent man” language from Beck is the key language for challenging the officer’s arrest.
State v. Crutcher, a 1999 Tennessee Supreme Court case, is an interesting holding by the Court. Though it has been distinguished by the Court of Criminal Appeals, it remains good law. Crutcher was a motorcyclist, and he and two buddies are stopped at an intersection. They take off from the intersection at an excessive rate of speed. The officer pulls them over – two of the riders stop, but Crutcher is a rebel, and he doesn’t. The chase exceeds over 100 miles per hour, and just as the officer lays off of him, Crutcher climbs an embankment and hits a drainage ditch. Bummer. The officer starts to arrest Crutcher, but when he complains of pain, they leave him uncuffed and call an ambulance. Meanwhile, his buddy shows up and agrees to take possession of the wrecked motorcycle and the belongings attached to it. The police agree, but only after the search the jacket and saddlebag, which contain a loaded .38 and some packets of cocaine is searched and documented. Crutcher was charged with evading arrest, drug possession, firearm possession, and reckless endangerment.
The issue is whether police had a right to search Crutcher’s things as a search incident to his arrest. The trial court and the CCA had both determined that the search should be suppressed. The Court made the following decision:
Relying on that definition, we acknowledge that the facts in this case are close as to whether the appellee was under arrest at the accident scene. The trial court found that Officer Moniz apprehended the appellee and intended to place him under arrest following the wreck. The officer testified, however, that he did not arrest the appellee due to the appellee’s injuries. Although Officer Moniz had probable cause to make an arrest at the scene, neither he nor Officer Evans discussed criminal charges or arrest procedures with the appellee. The appellee questioned the officers and was told only that he would be taken to a nearby hospital for medical treatment. The officers did not take the appellee into custody until several hours later when he was first released from the medical center.
State v. Crutcher, 989 S.W.2d 295 (Tenn. 1999). Occasionally, emphasis on occasionally, Tennessee courts make a decision that I find astonishing. This is one of those decisions. And here’s the takeaway: “If law enforcement officers intend to justify a search as incident to an arrest, it is incumbent upon them to take some action that would indicate to a reasonable person that he or she is under arrest.11 Although formal words of arrest are not required, see 5 Am.Jur.2d Arrest § 2 (1995), some words or actions should be used that make it clear to the arrestee that he or she is under the control and legal authority of the arresting officer, and not free to leave.”
So, we know that a person must be lawfully arrested, meaning the officer has probable cause to reasonably believe they are committing a crime. Mere suspicion is not enough to make the arrest and search. After being lawfully arrested, their person and surroundings may be searched, but that search does not extend to the content of their cell phones. Alright, that concludes our little session on search incident to arrest. Stay turned for my next piece on exigent circumstances and hot pursuit!
Yesterday, the CCA Eastern Section, reversed trial court findings in State v. Curtis Harper, holding that the court had abused its discretion regarding the admission of prejudicial photographs of the victims’ bodies and the crime scene. Harper, a recent graduate of the University of Tennessee, made local news in the May 2012, after he hit and killed a 45 year-old Good Samaritan (Soto), a pregnant 27 year-old woman (Thornell), and her unborn fetus. The victims were assisting Thornell’s friend (Tinder) after she ran out of gas on Washington Pike.
The story is tragic. As a defense attorney, these are the cases you dread because no one is a winner – innocent, lovable people killed while simply trying to help another person. If there was ever a case that serves as a warning against drunk driving or reckless driving – this is THAT case. The woman was hit so hard by the defendant’s vehicle that her baby (22 weeks-old) was expelled from her stomach. It’s gruesome to even think about, just imagine seeing the photographs. And it was the admission of those pictures that resulted in the reversal.
In a 40-page opinion issued by the Court, the panel summarized the testimony at trial, and I’m going to attempt to really summarize those facts. Police officers responded to the scene of the accident, where the victims had been assisting Tinder with filling her gas tank. (Tragically, Tinder committed suicide prior to this trial.) Tinder’s vehicle was parked in the roadway with only its left turn signal on. Harper was driving a Ford Explorer, and stated did not see Tinder’s vehicle in the roadway. He swerved left, hitting the victims as they embraced in a hug, and continued driving. Thornell’s fetus was decapitated and found underneath her own badly, mangled body. She was dragged underneath the vehicle for a short length. Soto was also hit. Both were dead by the time police responded to the scene. One experienced officer described the scene as the most gruesome he had ever encountered.
There was conflicting testimony about whether Harper had been intoxicated. Some witnesses, including his roommate, were called by the State and testified that Harper had been drinking, was not sober, and admitted he was not sober. His roommate testified that upon arriving how that night, Harper stated he was in an accident and there “might have been some people there.” Other witnesses testified that when Harper left The Hill (a bar in the Fort) on the night of the accident, he was not intoxicated. Harper admitted he had drank earlier in the day, but did not drink at the Hill, and denied being intoxicated. Harper stated he simply didn’t see the vehicle or the victims. It didn’t help that Harper stopped a short distant from the accident to survey the damage to his vehicle, but then continued to his house, rather than back to the scene. Additionally, Harper admitted to washing and cleaning the vehicle and asking a friend to remove evidence from the interior. These last facts didn’t necessarily prove that he was driving drunk, but tampering with evidence and concealment of a crime is often used as an indicator of guilt.
One witness for the State attempted to re-create the scene of the accident, testifying that she was able to see the disabled vehicle from a distant, and that her braking time allowed her to stop much sooner than Harper had. (You’ll have to read the opinion if you want to learn about all the measurements.)
After a jury convicted him of multiple counts of vehicular homicide, they also made a finding that this was Harper’s 2nd DUI. He was sentenced to 30 years in prison.
The CCA reversed because the trial judge allowed the State to introduce photographs that were completely unnecessary for a finding of guilt or innocence and were extremely graphic in nature. Pictures of the placenta, as well as “Exhibit 80 showing the final resting place of the severed head and left arm of the fetus in what appears to be a small pool of blood,” were shown to jurors. Additional photographs that showed Thornell’s intestines and internal organs expelled from her body were also shown to jurors. The defense argued to the trial judge that these photographs would not assist jurors in a finding of guilt, but would only result in prejudice. In fact, when the photographs were shown, jurors wept and the victim’s family was advised, mid-trial, that they had to control their emotions for a fair trial to occur. Citing Rule 403, the CCA found that none of the photographs were essential to medical testimony, and there was no dispute regarding the victims’ causes of death – most of the photographs were not needed. The Court also concluded that none of these photographs assisted jurors in determining whether Mr. Harper was intoxicated at the time of the accident.
Judge John Williams wrote a brief concurring opinion where he emphasized the graphic nature of the photographs. He stated, “A combination of overzealous prosecuting and weak gatekeeping by the trial court can result in an unfair trial for a defendant.” The concurrence adds that a trial judge must stand strong in their beliefs, especially when they repeatedly express apprehension throughout the trial about possible prejudice to the defendant, as this judge did.
This is a tragic case, but it also illustrates why appellate courts (specifically, unelected appellate courts) are so crucial. Someone must: review the law, verify that trial decisions were made without concern of how the electorate will react, and ensure, without emotion, that constitutional and statutory rights are not violated.
Read the full opinion here: http://www.tsc.state.tn.us/sites/default/files/haprercurtisscott.opn_3.pdf
The concurrence: http://www.tsc.state.tn.us/sites/default/files/harper_concurrence_2.pdf
Here’s the recent news coverage: http://www.knoxnews.com/news/watchful-eye/court-gruesome-photos-unnecessary-new-trial-ordered-for-driver-in-crash-that-killed-3_83523431
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