previous week's COURT REPORT

THE COURT REPORT

January 22-26, 2007

Kevin Batts

 

HIGHLIGHTS:  Theft and robbery are not lesser-included offenses of carjacking - State of Tennessee v. Joseph Wilson. Trial court's summary dismissal of a habeas corpus petition was proper in light of petitioner's failure to attach pertinent documents from the record of the underlying proceedings to support the illegal sentence claim; overrules McLaney to the extent it could be interpreted to hold otherwise - Charles G. Summers v. State of Tennessee. A plea-bargained sentence may legally exceed the maximum available in the offender range so long as the sentence does not exceed the maximum punishment authorized for the plea offense; petitioner waived any irregularity concerning his offender classification or release eligibility when he pleaded guilty - Shaun Hoover v. State. Tennessee's child pornography statute, which permits the trier of fact to infer that an image is of a minor, does not alter the requirement that the image be of "a minor" and is therefore neither unconstitutionally vague nor overbroad; Eleven charges against the defendant were multiplicitous and the evidence only supports one conviction where "all of the pictures could have come from a single website and could have been automatically downloaded onto the appellant's hard drive simultaneously" - State of Tennessee v. Kelly Michael Pickett. The plain, unambiguous language of Tennessee's implied consent statute contains no time limitation for prior D.U.I. convictions - State v. James Geno Templeman.

 

Tennessee Supreme Court

 

LESSER-INCLUDED

State of Tennessee v. Joseph Wilson - M2003-02151-SC-R11-CD (Robertson County)

Affirms evading arrest, carjacking, reckless endangerment, and driving on a revoked license. Trial court's failure to charge theft and robbery as lesser-included offenses of carjacking was not plain error. The definition of theft contains a statutory element not included within the statutory elements of carjacking, and for that reason theft is not a lesser-included offense of carjacking under part (a) of the Burns test. Carjacking only requires proof that the defendant took a motor vehicle from the possession of another.  Nothing in the plain language of the carjacking statute requires proof that the defendant took the vehicle with an intent to deprive the owner of the property. The motive for the taking is irrelevant, and therefore carjacking prosecutions do not include the burden of proving an intent to deprive the victim of the vehicle. Theft's additional element of an intent to deprive the owner of the property does not reflect "a different mental state indicating a lesser kind of culpability" or establish "a less serious harm or risk of harm to the same person, property or public interest" as contemplated by part (b) of the Burns test. The statutory element of an intent to deprive the owner of property does not reflect lesser culpability than taking a vehicle from the possession of another. Nor does it represent "a less serious risk of harm." Because robbery includes all of the elements of theft within its statutory elements, robbery is also not a lesser-included offense of carjacking.

 

HABEAS CORPUS
Charles G. Summers v. State of Tennessee - M2004-02806-SC-R11-HC

(Hickman County) Petitioner filed a habeas corpus petition challenging the legality of his concurrent sentence for misdemeanor escape. Trial court summarily dismissed the petition. Court of Criminal Appeals reversed, concluding petitioner should be afforded the benefit of counsel and an opportunity to prove his allegations to the trial court under McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). Supreme Court overrules McLaney to the extent that it can be interpreted to require the appointment of counsel and a hearing whenever a pro se habeas corpus petition alleges that an agreed sentence is illegal based on facts not apparent from the face of the judgment. Summary dismissal may be proper when, as in this case, the petitioner fails to attach to the habeas corpus petition pertinent documents from the record of the underlying proceedings to support his factual assertions. Reverses the Court of Criminal Appeals and reinstates the trial court's judgment dismissing the petition for writ of habeas corpus.

HABEAS CORPUS
Shaun Hoover v. State - W2005-01921-SC-R11-HC (Lauderdale County)

At issue is the legality of a sentence imposed pursuant to a plea agreement. The agreed sentence exceeds the maximum available term in the offender range but does not exceed the maximum punishment authorized for the offense. The Supreme Court holds that the plea-bargained sentence is legal. Affirms judgment of the Court of Criminal Appeals dismissing the petition for writ of habeas corpus. A plea-bargained sentence may legally exceed the maximum available in the offender range so long as the sentence does not exceed the maximum punishment authorized for the plea offense. Petitioner's plea-bargained sentence is well below the maximum punishment authorized for the Class A felony offense of second degree murder. Offender classification and release eligibility are non-jurisdictional and may be used as bargaining tools by the State and the defense in plea negotiations. Petitioner waived any irregularity concerning his offender classification or release eligibility when he pleaded guilty. Thus, petitioner is not entitled to habeas corpus relief. 

 

OVERBROAD STATUTE/MULTIPLICITOUS CHARGES

State of Tennessee v. Kelly Michael Pickett - M2004-00732-SC-R11-CD &
State of Tennessee v. Gregory T. Harwood - M2004-01811-SC-R11-CO
(Davidson County) The Tennessee Supreme Court holds that Tennessee Code Annotated section 39-17-1003 (2003), which prohibits the possession of child pornography, is neither unconstitutionally vague nor overbroad. The statute requires that the image be of "a minor." The language of subsection (b) does not expand the coverage of subsection (a) to include constitutionally protected speech. Subsection (b), which permits the trier of fact to infer that the image is of a minor, does not alter the requirement that the image be of "a minor." In consequence, 39-17-1003(b), which can best be described as a permissive inference, is not unconstitutionally overbroad. Further, the statute does not impermissibly shift the burden to the defendant to prove that the image does not depict a minor. Both the Tennessee and the United States Supreme Courts have specifically approved of the use of permissive inferences in criminal trials. In this instance, 39-17-1003(b) provides that "the trier of fact may infer that a participant is a minor if the material through its title, text, visual representation or otherwise represents or depicts the participant as a minor." The statute does not require the trier of fact to conclude that the material depicts a minor. Further, the statute places no burden on the defendant to prove that the image is not that of a minor.  The State must still establish each of the elements of the crime, including the fact that the material contains the image of a minor. The statute does not unconstitutionally shift the burden of proof. The Court of Criminal Appeals properly concluded that ten of the eleven counts were multiplicitous. The court reasoned that because the State presented no evidence concerning which pictures came from which website or when the defendant accessed each picture, the evidence established only one crime. The proof established that numerous images were stored in either the temporary Internet file or the unallocated space of defendant's personal computer. Detective testified that he was unable to determine when the defendant had accessed the images or from which websites the images had come. Based upon that testimony, the Court of Criminal Appeals concluded that "all of the pictures could have come from a single website and could have been automatically downloaded onto the appellant's hard drive simultaneously." The State did not otherwise attempt to distinguish the offenses by showing that the crimes were separated by time or location or by otherwise demonstrating that the defendant formed a new intent as to each image. Further, the State has not established that our legislature intended cumulative punishment. The evidence established only one offense and that the charges against the defendant were, therefore, multiplicitous.

 

Tennessee Court of Criminal Appeals

 

IMPLIED CONSENT

State v. James Geno Templeman - E2005-02754-CCA-R3-CD (Sevier County)

Affirms suspension of defendant's driver's license for a period of two years as a result of his conviction for violating the implied consent law. Defendant argues that the D.U.I. statute, T.C.A. ? 55-10-403(a)(3), makes it plain that a conviction more than ten years prior cannot be used to enhance a subsequent DUI. The defendant urges the Court of Criminal Appeals to apply the ten-year limitation to the violation of the implied consent law. The State counters by arguing that the plain, unambiguous language of the implied consent statute, T.C.A.? 55-10-406(a)(4)(A)(ii), contains no time limitation for prior D.U.I. convictions. The Court of Criminal Appeals agrees with the State. The trial court was correct in revoking the defendant's driver's license for two years.

 

SEARCH AND SEIZURE

State v. Jeremy S. Crosby - M2005-00548-CCA-R3-CD (Davidson County)

Affirms possession of over .5 grams of cocaine with intent to sell and unlawful possession of drug paraphernalia. Trial court did not err in failing to grant defendant's motion to suppress evidence found as a result of a police officer's warrantless search of a motel room. Defendant did not demonstrate a legitimate expectation of privacy in the motel room. No one saw Defendant pay the motel clerk to rent the motel room. He never transferred the motel room into his name. There was no evidence to indicate how long Defendant had actually been staying in the motel room, nor any witnesses who testified that they had seen Defendant occupying the room for a period of consecutive days. Nor was there any testimony that Defendant had acted to prevent anyone from entering the motel room. When the officer inquired as to Defendant's address, he gave the officer a home address in Antioch, Tennessee. Although Defendant had some property in the room, the trial court did not find this sufficient to indicate Defendant had an expectation of privacy in the room. Furthermore, the search was within the "plain view" exception to the warrant requirement. Officer testified that he accompanied the motel clerk to the room to perform a "lock out" at her request. After receiving no response to her knocks on the door, the motel clerk opened the motel room door to proceed with the "lock out."  The clerk opened the door of her own volition, and was not acting at the officer's request, or as a state agent when she did so. While he was lawfully standing outside the door to the motel room, the officer shined his flashlight into the room and saw marijuana seeds and a substance resembling marijuana on a tray that was protruding from under the bed.  He also observed sandwich bags and scales on top of the dresser. Based on his experience, the officer identified the items as drug paraphernalia used in the distribution and sale of drugs, thus providing him with probable cause to arrest the occupants of the room. After waking the occupants of the motel room, the officer placed them under arrest based on the items in plain view. A search of their persons incident to arrest revealed that defendant had cocaine in his front pocket.

 

IDENTIFICATION/SEARCH AND SEIZURE/CHAIN OF CUSTODY
State v. Jason Paul Sherwood - M2005-01883-CCA-R3-CD (Davidson County)

Affirms two counts of premeditated first degree murder and one count of attempted premeditated first degree murder. Evidence is sufficient to establish the defendant as the perpetrator of the charged offenses. Witness initially told the investigating officers that Defendant wore a mustache instead of a goatee, and witnesses failed to conclusively identify Defendant as the shooter from photographic line-ups which were shown to them a few days after the offenses. Nonetheless, both witnesses identified Defendant at trial as the shooter. Witness testified that he was approximately six to eight feet from Defendant when Defendant shot him the first time in the shoulder.  Witness said Defendant was two to three feet from the victim when Defendant shot the victim in the back. Witness said that he was able to see the driver of a van which left the scene immediately after the shooting and identified Defendant at trial as the driver. Defense counsel thoroughly cross-examined both witnesses concerning their pre-trial identifications, and the jury accredited any conflicts by its verdict in favor of the State's witnesses. A rational trier of fact could conclude beyond a reasonable doubt that Defendant acted with the requisite premeditation during the commission of the offenses. Evidence shows that Defendant purchased an automobile engine from victims' auto salvage five weeks prior to the shootings. Defendant attempted, unsuccessfully, to return the engine for a refund after finding out that modifications would cost more than the salvage company employee had estimated. A victim's wife was talking to her husband on the phone when she heard gunfire. All three victims were unarmed and were shot in different locations of the salvage facility. Tests revealed that the casings found at the crime scene and the bullets recovered during the autopsies of two victims were fired from the same gun. Search of defendant's van was valid. Two officers stopped defendant's van two hours after the shootings. Although the officers had grounds for a warrantless search of the van, the search was delayed in order that a search of the van could be conducted pursuant to warrants. The search warrants, authorizing the seizure of "evidence of a criminal homicide," lack specificity and are invalid. However, this did not invalidate the subsequent search since the officers could have conducted a legal search of the van without the warrant. For constitutional purposes, there is no distinction between conducting an immediate search of an automobile and seizing and holding an automobile pending determination of probable cause by a magistrate. Omission of information relating to witness' initial estimate of the shooter's height and weight does not invalidate the warrant. There is no evidence that the detective intentionally or recklessly withheld information he considered to be material. The evidence does not preponderate against the trial court's finding that the State sufficiently established the requisite chain of custody for the box of .25 caliber Winchester bullets found during a search of defendant's trailer. Sergeant stated that he erroneously recorded the number of bullets in the box as forty-eight in his report. He testified that the actual number of bullets was thirty-eight. Sergeant collected the bullets, photographed them, and then repackaged the bullets in the box. The photograph introduced into evidence displays thirty-eight bullets. The box in which Sergeant placed the bullets was introduced into evidence, and Sergeant confirmed that the box contained thirty-six bullets at the time of trial. Officer testified that two of the bullets from the box were broken down and used for comparison purposes against bullets found at the scene.

 

JURY INSTRUCTIONS
State v. Teresa Sue Skipper - E2006-00785-CCA-R3-CD (Loudon County)

Affirms assault, resisting arrest, and obstruction of the execution of an arrest warrant. Officers testified that they went to a residence to execute arrest warrants on defendant's sons. According to an officer who was attempting to enter the home, the Defendant tried to slam the door in his face, but he was able to stop her from closing the door with his foot. The officer continued telling the Defendant that he had felony arrest warrants for her sons. The officer testified that he had the warrants in his hand and showed them to the Defendant. The officer was able to open the door, and the Defendant "backed away."  Once the officers entered the home, the officers testified that the Defendant "stepped around behind" one officer and "swung" at him, attempting to hit him in the "back of the head." The officers were able to prevent the Defendant from striking the officer and immediately subdued her, handcuffed her, and arrested her. Defendant asserts two violations of her right to trial by jury based upon alleged erroneous jury instructions.  First, Defendant claims that the trial judge erred by failing to instruct the jury that officers may only enter a residence with both an arrest warrant and a "reasonable belief that the person they are seeking must be located therein." Second, Defendant claims that the trial judge erred by not instructing the jury on "the Defendant's affirmative defense of use of force in her home when the Defendant reasonably believed that law enforcement officers were unlawfully entering her home without a search warrant, exigent circumstances, or an arrest warrant coupled with the reasonable belief that the person they sought was in her home. The trial court did not err because the jury was properly instructed on self-defense and no further special instructions were submitted to the trial court in writing. 

 

EVIDENCE/PREMEDITATION/SPEEDY TRIAL

State v. Octavia Cartwright - W2005-02316-CCA-R3-CD (Shelby County)

Affirms convictions for evading arrest in a motor vehicle with risk of death or injury, attempted first degree murder, two counts of especially aggravated robbery, especially aggravated burglary, and four counts of especially aggravated kidnapping. Evidence sufficient to convicted defendant of attempted first degree murder. Proof at trial shows defendant and co-defendant followed the victim home from a gas station and tackled her on her lawn, outside of her home. The victim was dragged inside her house where defendant beat her repeatedly with a gun, and co-defendant stabbed her seventeen times with a pair of scissors. These facts show the use of a deadly weapon on an unarmed victim, particular cruelty, and preparation. There was clear evidence to find premeditation. Additionally, the beating and stabbing of the victim were substantial steps towards her being killed. Evidence also supported the especially aggravated kidnapping conviction. Victim testified that she was taken against her will into her home. She was confined inside of her home while she was beaten with a gun and stabbed with a pair of scissors. She was then placed in the back of her car. Defendant began to back out of the driveway, at which point the victim escaped from the car. There is ample evidence to determine she was confined or removed, and the confinement and removal substantially interfered with her liberty. The jury also heard evidence that a gun and scissors were used to injure the victim, and that the victim suffered serious bodily injury. Defendant's Constitutional right to a speedy trial was not violated. The crime took place in 1999 while the trial did not begin until 2005. A span of six years is substantial. However, the reasons for the delay occurred primarily because the Defendant's co-defendant had issues with his counsel. After those issues were resolved, the Defendant entered into conversations with the State, attempting to determine if she wanted to plead guilty. Eventually, the trial was conducted after the Defendant determined she did not want to plead guilty to the charges. This weighs against finding the right to a speedy trial was violated.

 

EVIDENCE
State v. James Patterson - W2005-01416-CCA-R3-CD (Shelby County)

Affirms especially aggravated robbery, criminal attempt of second degree murder, and two counts of especially aggravated kidnapping. This case involves a victim who was abducted, robbed, beaten, bound, and abandoned on Christmas Eve of 2003. Evidence sufficient. There was abundant evidence that the defendant used both a metal object (described as a pipe by the victim and as a crowbar by the co-defendant) and a handgun to confine the victim and remove him while in the confines of the car trunk. As a direct result of the defendant's actions, the victim suffered serious bodily injury. The victim received cuts requiring stitches to his head and hands. The victim's kidneys ceased functioning, and he was comatose and on a ventilator during his hospitalization. The jury was warranted in finding that the defendant committed especially aggravated kidnapping by the use of a deadly weapon and the resulting serious bodily injury suffered by the defendant. The evidence also supported the especially aggravated robbery conviction. The victim testified that approximately $175 in cash was taken from him by the defendant, the defendant utilized deadly weapons, and the victim suffered serious bodily injuries.

 

EVIDENCE
State v. Robert Smith - W2006-00998-CCA-R3-CD (Madison County)

Affirms possession of marijuana and possession of drug paraphernalia. Evidence sufficient. Officer found a partially smoked marijuana cigarette and a bottle fashioned into a crack pipe in a motel room. Appellant called police to this room, which he claimed possession of, to report that someone had entered his room and stolen certain items. An inference arose that the Appellant, as possessor of the premises in which the items were found, had possession of the illegal items themselves. The record does not rebut that inference. Police found no evidence of another person's presence in the room. Moreover, the Appellant told a witness that he was "missing a bag of weed." The trial court did not abuse its discretion in ordering that the sentences be served consecutively. The record indicates nine prior convictions for driving with a suspended or revoked license, six for various traffic offenses, and one for misdemeanor theft. Additionally, the report establishes that the Appellant was on misdemeanor probation at the time the instant offenses were committed.

 

EVIDENCE

State v. Donald Wayne Joiner - E2006-00005-CCA-R3-CD (Sullivan County)

Affirms conviction for escape. Evidence sufficient. Defendant admitted at trial that he escaped from the Sullivan County jail but testified that he did so only because of threats from his cellmate. Defendant testified that his cellmate had shown him a "homemade knife" and told him that, if he did not participate in the escape, "something would happen to either the Defendant or his family." Defendant stated that he did not take an active role in effectuating the escape. Defendant testified that, although he parted ways from his cellmate after escaping from the jail, he did not turn himself in to authorities because he was still afraid of the threats. The jury was instructed on the offense of escape as well as the defense of duress and the justification of necessity. After consideration of the testimony and evidence presented, the jury decided to convict the Defendant of the offense of escape. The State presented testimony from guards and the investigating officers that they knew of no threats to the Defendant and that the Defendant never claimed he feared for the life of his family and himself. The Defendant's statement upon arrest also made no mention of any coercion in the escape. The jury received testimony that, even after leaving the jailhouse and parting ways with his cellmate, the Defendant did not turn himself in. Instead, he hid in a mobile home drinking beer with a friend.

 

 

Kevin Batts
Deputy Executive Director
Tennessee District Public Defenders Conference
211 Seventh Avenue North, Suite 320
Nashville, TN 37219-1821
(615) 741-5562