What is post-conviction? In most criminal cases there are three phases – the trial phase, the direct appeal phase, and the post-conviction phase. Each phase has a uniquely different goal and feel. For simplicity’s sake, the trial phase is an effort to investigate and explore all avenues of the case to obtain the most favorable outcome possible. After trial, the next phase (if needed) is the direct appeal. On direct appeal, the attorney is challenging the legal issues in the case based on the facts established in the trial phase. The best trial attorneys know that every case may be litigated on direct appeal and they enter every possible fact into the record in anticipation.
The third phase is post-conviction, and it is the phase that strikes fear in the hearts of new attorneys who are often appointed to these cases. Post-conviction challenges require a tremendous amount of work. Attorneys are required to scrutinize the actions of the trial attorneys to determine if their work in the trial phase was ineffective or erroneously performed. They review the trial that already occurred and then, actually recreate the trial. PC counsel is also looking for issues that may not have been known to prior defense counsel, for whatever reason – issues with jurors, exculpatory evidence that was not provided to trial counsel, or new evidence of any kind (eyewitnesses, DNA testing, new scientific studies or expert witnesses). Success in post-conviction is extremely difficult – as I’ve mentioned before, convictions aren’t meant to be overturned. There’s no training session for new attorneys on how to work a post-conviction, but discovery and investigation are critical in proper work-up.
Requesting discovery from the District Attorney’s office can result in a couple of different responses – “look in the clerk’s file,” or “get it from the trial attorney” are the two of the most popular. A recent decision from the Tennessee Court of Criminal Appeals held that the District Attorney’s office has an obligation to produce and provide discovery to post-conviction counsel, regardless of whether it was given to trial counsel. In Bennett v. State, decided on January 31, 2018, the defendant-petitioner appealed after requesting discovery from the Knox County District Attorney’s Office. Instead of providing discovery, the DA’s office requested that the judge order trial counsel to provide his/her file to the post-conviction attorney. The defendant argued that Supreme Court Rule 28 required the State to provide all discovery materials. In a written order, the trial court found that the State was required to turn over discovery materials to the post-conviction attorney, but only materials relevant to the issues raised in the post-conviction petition. The trial court also held that the State was not required to produce any discovery material to the defendant “at this time.”
Bennett filed an interlocutory appeal challenging the trial court’s ruling. The appellate court accepted the appeal as a matter of first impression and found that the post-conviction statute was “clear and unambiguous.” The Court found that the State has an obligation in post-conviction proceedings:
“Nothing in either the statute or the rule suggests that the State fulfills its obligations in the post-conviction proceeding by disclosures that occurred prior to the commencement of the post-conviction proceeding. Said differently, that the State fully complied with its discovery obligations prior to trial does not absolve it of the discovery obligation imposed by the law governing postconviction proceedings.” (P. 12.)
Bennett provides instruction on what materials are to be turned over to the State of Tennessee. The Court broadly construed the statute and Rule 16 as providing materials to the Petitioner, even if the materials would be deemed irrelevant to the claims of the post-conviction petition.
“It should be noted that nothing in the rules limits post-conviction discovery materials to materials that existed prior to or during the trial; it is possible that materials developed after the trial may become discoverable as relevant to the issues in a given post-conviction proceeding.” (P. 13.)
So, what does this holding mean? It means that PC attorneys should be asking for any and all materials - and receiving any and all materials that are discoverable. A prosecutor telling a defense attorney, "go get it from someone else," is no longer an acceptable answer. The justice system is part of government, and government should be
Read the full opinion here.
Alright folks, I know this post looks long, but it reads fast and it is an interesting evidentiary issue - so stick with me. In the second installment of That’s Admissible! we look at a case that came out last July. I was in a murder trial a couple of weeks ago and I remembered reading this case and the related facts, but I could never come up with the case name. Thinking I must have written about it, I did a quick review of the blog, but couldn’t find it anywhere. It’s the perfect case to fit in the category of That’s Admissible!
The Court of Criminal Appeals reversed the conviction of Brandon Scott Donaldson on July 6, 2017. In this case, the key issue for the jury was Donaldson’s state of mind when he fired upon an ex-girlfriend.
“The Knox County Grand Jury charged the defendant with alternative counts of the first degree murder of the victim, Marcia Crider, alternative counts of the first degree murder of the victim’s unborn child, the attempted first degree murder of Ms. Crider’s mother, Pebbles Renee Jones, and one count of employing a firearm during the commission of a dangerous felony arising out of the February 13, 2013 shooting that resulted in the death of the victim and her unborn child. The trial court conducted a jury trial in January 2015.”
The issue at trial was whether the shooting was premeditated or knowing or done after provocation. Based on testimony at trial, it appears that the couple had a tumultuous relationship. On the morning of the shooting, the Defendant was trying to break up with the victim. The victim told her mother that the Defendant had put his hands on her and taken money from her. The victim’s mother spoke with the Defendant on the phone and then went to his apartment where the victim and a friend (a fourth person, Ms. Knighton) were located. The Defendant returned to his apartment, counted out some money and gave it to the victim, and according to the victim’s mother, “didn’t say a word” before pulling out a gun, following the victim to her car, and shooting her. The victim’s mother acknowledged that the victim had been “a little mouthy” that morning.
After additional testimony from other witnesses, the State rested and the defense put on their proof. (This is a 36-page Opinion, so y’all will really need to read the entire thing – I’m giving the very abridged highlights.)
The defense called the friend (Knighton) that was in the apartment that morning. She described how the victim had poured soda in the defendant’s shoes and dumped bleach on his new clothing. The victim was “screaming” at the defendant.
Donaldson was convicted of multiple counts of second-degree murder and attempted murder, as well as other offenses, resulting in a 68-year sentence.
Donaldson is a great case for all trial attorneys to remember, because it reminds us to ask, “is this actually hearsay evidence?” And sometimes, it’s not – which means we don’t have to wrangle with all of the different hearsay exceptions. That can be difficult to remember in the heat of trial. Not all statements are being offered for the truth of the matter asserted.
Ultimately, the Court of Criminal Appeals reversed the trial court holding because of the following exchange. This is quoted directly from page nine of the Opinion:
At trial, Ms. Knighton testified regarding the argument she overheard between the defendant and the victim on the morning of February 13. Ms. Knighton began to testify that she heard the victim referencing a sexually-transmitted disease when the prosecutor objected on the basis of hearsay. The trial court then conducted a hearing on the testimony outside the presence of the jury, at which time Ms. Knighton testified, in pertinent part, as follows:
Q: All right. So you – you said a lot of things to the [j]ury and – and – a few – few minutes ago, we had to cut you off.
Q: What did you hear [the victim] say as she was crying and excited and angry? What did you hear her say?
A: She called him a “dirty dick m-f” and told him that’s the reason why his D-I-C-K was burning. And that they both was burning. And that’s the reason why that she didn’t give him none last night, because she went and got a shot, and “that’s the reason why your you-know-what is still burning.” And I guess he figured out, you know, why he was feeling the way he was feeling and the reason why she was doing it with him when she did it. Because I don’t know if she was telling him another way matter [sic] that, you know –
Q: What was – what was . . .
A: – this is where it come from.
Q: Okay. And what was your impressions, based on the statements that [the victim] was saying to [the defendant], what was – what was your impression?
A: That . . . Well, my impression, the way I took it, the way she said it was that, you know, I mean, “I’ve done caught some type of venereal disease from somebody, and I went to bed and gave it to you.”
A: “So that’s the reason why I’ve been laying with you. Now we both have it. Now I’m fixed and you’re not getting nothing.” Ms. Knighton continued, stating that, following this verbal altercation, the defendant left and that both she and the victim stayed in the residence.
Q: Okay. Did [the victim] make any phone calls to her mom or anybody else?
A: She had made a phone call. She was calling her uncles or her cousins or somebody, that she said that she had somebody to take care of him that was going to ‘f’ him up.
Q: Okay. So you – you heard [the victim] say she had someone to take care of him, to ‘f’ him up?
A: Yeah. I was standing right beside her. When the defendant returned to the house and gave the victim her money, Ms. Knighton made the following observations:
Q: [Were the victim and the defendant] arguing at that point in time?
A: No. I mean, she was still, you know, babbling, saying – you know, fussing and stuff, you know. And her mom was telling her to hush. And she just kept on and kept on and kept on.
Q: Okay. So your words was “she was babbling and fussing and stuff.”
A: I mean, cursing and still calling him names.
A: And what she’ll have done to him and –
A: – you know, a lot of threats.
At the conclusion of this testimony, the trial court ruled that the victim’s statements, as offered by Ms. Knighton, “about the venereal disease, and getting somebody to come and . . . exact retribution on” the defendant are “clearly hearsay” not subject to any exception.
The CCA held that the trial court’s ruling was erroneous, “Because these out-of-court statements of the victim’s were not offered for their truth, they did not qualify as hearsay, and the trial court erred by excluding them on that basis.” The Court next assessed whether this was harmless error. The panel, citing the Voluntary Manslaughter statute, held that “Evidence that the defendant had been told, less than two hours before he fatally shot the victim, that the victim had transmitted a venereal disease to him would have certainly assisted him in his defense of adequate provocation.” They also looked at the prosecutors’ closing arguments in which they spent significant time discussing the Defendant’s intent and motive. The Court held that excluding the evidence “not only undermined the defendant’s theory of adequate provocation but the exclusion actually benefited the State’s theory that the only act of provocation was the destruction of the shoes.”
The lesson of Donaldson: next time you’re in trial and opposing counsel makes a hearsay objection, stop and contemplate whether it is actually hearsay. It may not be.
READ THE FULL OPINION HERE.
It doesn't sound very flashy, but it's of critical importance to thousands of Tennesseans. Lots of people get charged with crimes for lots of reasons. Some are guilty, some are innocent, but the Constitution doesn't discriminate; everyone is guaranteed counsel. Many of them cannot afford an attorney. For a long time, the criminal justice system in Tennessee has been operating off the backs of the attorneys who represent those who cannot afford an attorney. Those attorneys are the least-paid person in the courtroom. There have also been no guidelines for the attorneys appointed to handle a case - in two words, "quality control." Over the last year, I have paid my plumber, electrician, and handyman (whom are all great, hard-working people) more than what the State pays me to represent someone on a murder case. It's time for change.
I'm so glad that the TBA is addressing this issue, and I'm honored that they gave me a call to discuss it.
2018: let's do something. Let's ask our legislature to do something. Let's do better.
You can read the full TBA article here. And you can read the TBA president's message HERE.
In this installment (the first installment) of That’s Admissible! we will look at yesterday’s Court of Criminal Appeals opinion in State v. Lisa Young. In this opinion, the Court determined a co-defendant's statements were admissible pursuant to the declarant unavailable - statement against interest exception.
In Young, a woman was murdered in a Dollar General parking lot in Sparta, Tennessee. Based on vehicle description by the Dollar General clerk, two suspects were apprehended and arrested for the woman’s murder. She was alleged to have been hit in the head with a hammer during a robbery attempt and her purse was stolen. The two suspects were a man and woman – Mr. Logan and Ms. Brown. In speaking with the police immediately after her arrest (and after receiving Miranda), Ms. Brown made self-incriminating statements. She acknowledged using Ms. Young’s phone to text the victim and set up the meeting. While reviewing the evidence in the case, police located the text messages on the telephone of Lisa Young – the defendant in this case. This happened 11 months after the fact. Ms. Young was then arrested.
Ms. Young’s case went to trial and her attorney sought to use Ms. Brown’s statements that inculpated Ms. Brown, while denying Ms. Young’s involvement. Ms. Young’s attorney had attempted to get Ms. Brown to testify in-person, but she invoked her right to remain silent (rendering her unavailable). The other co-defendant, Mr. Logan, having plead guilty to first-degree murder and receiving a life sentence, testified at trial that Ms. Young was not involved that day. Ms. Young’s attorney filed a motion to allow the co-defendant’s statements to be admitted pursuant to Rule 804(b)(3). Tennessee Rule of Evidence 804(b) provides that “a [s]tatement against [i]nterest” “is not excluded by the hearsay rule if the declarant is unavailable[.]” Subsection (b)(3) provides a statement against interest is [a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
The Court held that it is not necessary for a declarant to make a full confession in order for their statement to be admissible. Instead, trial courts are to individually analyze each statement and determine its admissibility. In this case, the Court concluded:
Ms. Brown’s assertions that she was in possession of the Defendant’s phone and used it to contact the victim to arrange “a deal” are clearly against her penal interest. Ms. Brown was in police custody at the time of this statement and had been given warnings in accordance with Miranda. 4 Ms. Brown would have been aware that she was implicated in the victim’s murder, and it was certainly against her interest to claim she set up the meeting with the victim during which the victim was murdered. Furthermore, this corroborates the Defendant’s claim that she was not in possession of that particular phone on the night of the murder and that she had given it to Ms. Brown to use.
Ms. Brown also admitted to falsifying her identity to the victim and that the co-defendant (whom she could have blamed) was not involved in the murder. The Court found that both of these statements were against her penal interest and therefore, admissible under hearsay.
The Court held that because these statements would have made a difference if admitted at trial, Ms. Young was entitled to a new trial.
You can read the full opinion here.
Interesting case out of the Tennessee Supreme Court yesterday. A woman in Memphis (everything happens in Memphis!) squatted in a $2 million dollar house for one week. Her sentence? 20 years in prison. The woman, who claimed to be a sovereign citizen, attempted to obtain the property by filing "difficult to decipher documents" with the local clerk's office. (They were SO difficult to decipher that the clerk literally filed them in a "miscellaneous" file.) She moved into the house and changed the locks. The bank was mad, as banks tend to be, so they sought criminal theft charges against her. Because of the value of the house (over $250,000) she was charged and convicted at trial of an A felony, as well as C felony aggravated burglary. The Court noted that, " The damage to the East Memphis home was minimal, and the duration of Defendant’s physical seizure and occupation of the real property short lived, but sufficient evidence supports the jury’s findings on these issues. "
Yesterday, the Tennessee Supreme Court upheld her conviction, finding that the Tennessee theft statute applies to real estate and makes no distinction between movable and immovable property as the Model Penal Code does. The Court further found that the legislature intended the theft statute to cover real property the same way it applies to other property.
Notably, the defendant argued that she was limited during cross-examination as to what her attorney could ask witnesses about adverse possession, and defense counsel was not permitted to argue the theory of adverse possession in closing argument. The Supreme Court determined that counsel had not been unfairly limited during cross-examination and that closing argument was not evidence, so the trial court did not abuse its discretion.
The Court found that the defendant intended to deprive the bank of its property because of those indecipherable documents filed at the clerk's office, so there was sufficient evidence to support the jury verdict. (She also put signs up outside the home that stated it was now her home.) Essentially, for every day she spent in the house, she was sentenced to a 34-month sentence.
Read the full opinion here.
It’s rare to get a reversal in the criminal law world; the law is written to keep convictions in place. Finality is revered. But last Friday, the Court of Criminal Appeals reversed a case that I had the privilege of trying last year with a wonderful attorney. I hope when I'm 65 I'm still co-chairing trials, because there is no better way to gain knowledge and expertise than from others.
It was a great experience and, as usual, I learned an important lesson: all requests for jury instructions MUST be in writing. Tennessee statutory law (Tenn. Code Ann. 40-18-110c) REQUIRES all jury instructions be in writing. Failure to do so means that, on appeal, the appellate court will only assess the error under a plain-error standard.
During the trial, there was testimony that the defendant hit the complaining witness in the face during the alleged events of the evening. The defense requested that assault-offensive/provocative conduct be charged as a lesser-included offense and incorporated into the jury instructions. This request was made orally and discussed on the record, but it was not put in written form. The trial court held that the proof did not support the lesser-included offense of assault and denied the defense request to charge the jury with assault as a lesser-included option.
The Court of Criminal Appeals, after some hard work by the appellate attorneys, reversed under plain error and remanded for a new trial. They disagreed, and found that the proof as introduced at trial would have supported such a lesser-included charge to the jury.
To read their opinion, click here.
Hey law friends,
I have been incredibly busy and, as a result, I haven’t had a chance to update by blog lately. But never fear! Here are two Tennessee criminal cases that caught my eye over the past month. I’m always trying to keep a mental list of cases that might be game changers in a hearing or oral argument.
First off, State v. Chad Henry. This is a case out of Western Tennessee and on September 14, 2017, the Court of Criminal Appeals issued an opinion affirming the suppression of Mr. Henry’s warrantless blood draw taken after he was in an automobile accident. In the 31-page opinion by Judge McMullen, she affirms the trial court’s finding that the blood was obtained through an unconstitutional and warrantless draw. The case is really important for a couple of reasons: 1) It’s the first time that a Tennessee court (post-Birchfield) has come out and said, “there is no such thing as a warrantless blood draw under implied consent.” In the Tennessee Supreme Court’s decision in State v. Corrin Reynolds, the Court punted on that issue, relying on the Good Faith exception, instead. 2) It’s the first time that a Tennessee court has looked at binding precedent after the McNeely decision and said, “after McNeely, police knew they needed to get a warrant if feasible.” This opinion gives a really solid history of warrantless blood draw/implied consent cases in Tennessee and, in my opinion, is the first case to set a bright-line rule after considering Birchfield. It’s a must-read.
Next, State v. Danielle Jensen. This case features some fine defense-lawyering. Ms. Jensen was charged with shoplifting $70.00 worth of merchandise at Wal-Mart and had a jury trial, which resulted in a hung jury. (Did they have some bad surveillance footage or what? Because Wal-Mart is typically crystal-clear.) Anyway, when the case gets sent back, the Assistant District Attorney decides to charge her with Burglary - a D Felony – because under the statute, burglary is the breaking and entering with the intent to commit a felony or assault. So, Ms. Jensen gets a hung jury and rather than resolving the case, the DA ups the charges against her. The defense files a motion to dismiss for prosecutorial vindictiveness and the trial court grants. Among the reasons cited, the trial court notes that prosecutors have tremendous leeway to amend and supersede indictments, so if the State really wanted to try Ms. Jensen for the burglary, they could and should have done so the first time. The Court of Criminal Appeals affirmed the decision and delved into a discussion about whether a person can commit a burglary for shop-lifting in a business that is open to the public. A nice defense win!
Last week, a panel from the CCA reversed and vacated a murder case out of Hamilton County. The factual scenario is interesting and not all that uncommon – multiple kids involved in using and dealing drugs with a sprinkling of guns. What makes this case a little different is that the reversal was based on pure evidentiary law and some old-school Miranda.
In State v. Nathan Lalone, the CCA reversed his conviction based on two primary findings: 1. Police continued to interrogate Mr. Lalone after he made it clear he did not want to speak with them; 2. Impeaching a witness with a prior inconsistent statement requires the witness to be confronted with the specific statement before impeaching with the specific statement. It’s not acceptable to just say, “this witness isn’t telling the truth about anything and we will play his or her statement about all of these things.” Let’s look at the Miranda issue.
Lalone told police, “Well then I ain’t got nothing else to say, ‘cause I done told you everything I know.” The trial court denied the defendant’s motion to suppress everything he said to police after this particular statement, but did not make any written finding of facts or conclusions of law. Arguably, this gave the CCA a little more latitude in making its interpretation of what Lalone meant when he told police he “ain’t got nothing else to say.” And the CCA reached a different conclusion: Lalone unequivocally and unambiguously invoked his right to remain silent. The CCA then determined that police failed to scrupulously uphold Lalone’s invocation of Miranda. After Lalone stated he had nothing else to say, another detective only waited 9 minutes before re-entering the room to take a second shot at getting the defendant’s statements. The CCA found that the Defendant did not re-initiate the conversation and that police failed to uphold his rights. His statements were not voluntarily given; and this was not harmless error. On re-trial, the statements made after his invocation will be inadmissible.
The second ground for reversal was the introduction of the prior inconsistent statement of a witness without the proper procedure for admission being followed. The Court noted that Rule 802 on hearsay and Rule 613(b) on prior inconsistent statements are the applicable rules in this case. It is always difficult to know what exactly happened in the courtroom based on the appellate record and the appellate opinion. However, my take from reading this opinion is that many of the witnesses were intoxicated on the night of the murder (lots of foggy memories) and the testimony was really all over the place at trial. It also sounds like counsel (for the State and/or defense) might have been using a lot of pronouns, which made it even more difficult to parse out what the witness was saying. Either way, the record indicates that the State became frustrated with its witness and asked to play her prior inconsistent statement. The defense objected, stating that the proper procedure would be to ask the witness specific questions about specific statements and then play the corresponding inconsistent statement. The judge allowed the entire statement to be played. On appeal, the CCA found that you’ve reallllllly gotta follow the proper procedure. The Court also held that the trial court failed to ensure the prior inconsistent statement possessed traits of trustworthiness, and after admitting the statement, the judge failed to give a limiting instruction. Under plain error analysis, the panel determined this was a basis for reversal and during re-trial, the proper procedures under the Rules of Evidence should be followed before the statement is admitted.
Overall, a technical, detail-based finding from the CCA and a nice win for the appellate attorney in Chattanooga.
Read the full opinion here.
A lot of folks think that convictions can be overturned if they are unfair - "it'll get fixed on appeal." But our system operates in a way that is meant to affirm and uphold convictions. The mechanism for winning a new trial is called post-conviction. I've written about it several times over the years. Post-conviction cases are EXTREMELY hard to win, and they become monumentally more difficult without any funding for an investigator, experts, or mitigation specialists. The Marshall Project reports on the difficulties in Tennessee, featuring a man named Thomas Clardy.
North Carolina has been a leader in Innocence litigation, and they have now enacted a rule requiring all attorneys (not just prosecutors) to divulge information about innocence.
The AP reports about the rule change, HERE.
The North Carolina Bar gave the following summary of the proposal:
Proposed Amendments to the Rules of Professional Conduct
27 N.C.A.C. 2, Rules of Professional Conduct,
Proposed amendments to two Rules of Professional Conduct require a prosecutor or a lawyer to disclose post-conviction information or evidence that may exonerate a convicted defendant. The proposed amendments to Rule 3.8, Special Responsibilities of a Prosecutor, set forth specific disclosure requirements for a prosecutor who comes into possession of new, credible information or evidence creating a reasonable likelihood that a defendant was wrongfully convicted. Proposed new Rule 8.6, Information About a Possible Wrongful Conviction, sets forth comparable requirements for all other members of the Bar. In addition, the comment to Rule 1.6, Confidentiality, is amended to add a proposed cross-reference to new Rule 8.6.
At the time of adoption by the council, corrections were made to proposed new Rule 8.6(b)(2) and (3) to simplify that a lawyer may not disclose information if the disclosure would harm the interests of a former client as well as a current client.
You can read the full rule HERE. The magic language is that the evidence of innocence must be credible and it was must create a reasonable likelihood that the defendant did not commit the crime.
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