previous week's COURT REPORT

THE COURT REPORT

January 29-February 2, 2007

Kevin Batts

 

HIGHLIGHTS: In State of Tennessee v. Melissa Ann Layman, the trial court abused its discretion in rejecting a nolle prosequi where the uncontested motion to nolle prosequi the greater charge of the indictment was neither filed in bad faith nor motivated by considerations clearly contrary to manifest public interest. Further, the victim's family did not have the right to be heard at the pretrial hearings concerning the plea agreement and nolle prosequi because such pretrial hearings are not critical stages of the criminal justice process. In State of Tennessee v. Stephen McKim, the prosecutor's consideration of an irrelevant factor so tainted his decision-making process as to constitute an abuse of discretion in denying pretrial diversion; the assistant district attorney general focused not on the defendant's amenability to correction but rather on his own opinion of what should and should not be a divertible offense. In State v. David Michael Chubb, the trial court erred by instructing the jury that corroboration of the aggravated sexual battery victim is not necessary, which essentially served to corroborate the victim's allegations. A judgment that erroneously pronounces the petitioner infamous is not a colorable claim entitling him to habeas corpus relief - Randy L. May v. Howard W. Carlton, Warden.

 

Tennessee Supreme Court

 

NOLLE PROSEQUI

State of Tennessee v. Melissa Ann Layman - E2004-01471-SC-R11-CD
and State of Tennessee v. Jonathan Ray Taylor - E2004-02866-SC-R11-CD

(Anderson County) These cases were consolidated to determine the scope of a trial court's discretion to deny a motion to nolle prosequi to which the defendant has consented. Layman's appeal also presents the issue of whether a victim's family has a right to be heard at a pretrial hearing concerning a plea agreement or a nolle prosequi. The Supreme Court concludes that when an uncontested motion to nolle prosequi or dismiss a criminal charge is independent of a plea agreement, a trial court's discretion to deny the motion under Rule 48(a) of the Tennessee Rules of Criminal Procedure is limited to extraordinary circumstances indicating betrayal of the public interest. Because in each case the prosecutor's independent, uncontested motion to nolle prosequi the greater charge of the indictment was neither filed in bad faith nor motivated by considerations clearly contrary to manifest public interest, the trial court abused its discretion in rejecting the nolle prosequi. Also, in Layman's case, the victim's family did not have the right to be heard at the pretrial hearings concerning the plea agreement and nolle prosequi because such pretrial hearings are not critical stages of the criminal justice process as defined by Tennessee Code Annotated section 40-38-302(2). Any error in considering the statements of the family, however, was harmless. Judgments of the trial court and the Court of Criminal Appeals are reversed in each case. Remanded for further proceedings.

PRETRIAL DIVERSION
State of Tennessee v. Stephen McKim - W2005-02685-SC-S10-CD (Shelby County)

Defendant was indicted for criminally negligent homicide following the death of his daughter after the defendant left her in his car on a hot summer day. Defendant applied for pretrial diversion. District Attorney's office denied diversion, in part on the basis of its judgment that diversion of a negligent homicide "appears to be an aberration of the law." The trial court refused to overturn the prosecutor's decision, and denied permission to pursue an interlocutory appeal. The Court of Criminal Appeals denied Defendant's application to pursue an extraordinary appeal. The Supreme Court holds that the assistant district attorney general abused his discretion when he relied upon an irrelevant factor in denying pretrial diversion. The assistant district attorney general's written denial did not focus on the defendant's amenability to correction in determining whether to grant diversion but rather on the nature and circumstances of the offense and its tragic consequence. Moreover, the assistant district attorney general is apparently of the opinion that the legislature has erred by not reclassifying criminally negligent homicide as an offense ineligible for pretrial diversion. The tone of the assistant district attorney general's written denial suggests that he will not grant pretrial diversion to any defendant charged with criminally negligent homicide, regardless of the defendant's personal circumstances and amenability to correction. Contrary to established precedent, the assistant district attorney general focused not on the defendant's amenability to correction but rather on his own opinion of what should and should not be a divertible offense. In so doing, the assistant district attorney general considered a factor not relevant to his determination of whether to grant pretrial diversion to the defendant. The prosecutor's consideration of, and emphasis upon, an irrelevant factor so tainted his decision-making process as to constitute an abuse of discretion. The trial court's order affirming the denial of pretrial diversion is reversed. Remanded for further proceedings. Specifically, the trial court shall reverse the decision of the district attorney general's office denying pretrial diversion and remand for a proper evaluation of the defendant's application.

 

 

Tennessee Court of Criminal Appeals

 

EVIDENCE
State v. William Granville Howell - W2005-02837-CCA-R3-CD (Hardeman County)

Affirms simple assault. Evidence sufficient. Victim Jenkins testified that as he was walking with Victim Brown, Defendant pulled his truck behind them, swerved at them, and caused the two men to jump into a mud puddle. At Defendant's instruction, Jenkins and Brown got into his truck where Defendant immediately put a gun to Jenkins's head and said, "Boy, I'll kill you." Defendant continued to hold the gun to Jenkins's head, with his hand on the trigger, while driving. Brown testified that from his position in the back of the truck he saw Defendant put the gun to Jenkins's head. Jenkins said that he was "scared" and "nervous" and that he feared for his life and had continued to do so until the time of trial. Although defendant presented evidence that he did not put a gun to Jenkins head, and that he did not own any guns, the jury resolved any discrepancy in evidence in favor of the State.

 

EVIDENCE/RELEVANCY

State v. Ricky Ronald Crawford - E2005-02018-CCA-R3-CD (Sullivan County)

Affirms two counts of first degree premeditated murder. Defendant was convicted of killing his wife and his uncle, who was allegedly having an affair with his wife. Defendant claims that the trial court erred by allowing the State to present evidence about his own extramarital affair, arguing that the evidence was irrelevant and highly prejudicial. The State contends that the evidence was probative to show that the appellant was not acting in the heat of passion when he killed the victims and was necessary to tell the jury the "whole story" of the defendant's and his wife's relationship in order to negate his crime-of-passion defense. The Court of Criminal Appeals finds that the testimony about Defendant's long-term affair which produced two children was not relevant to this case. Defendant's wife knew of the affair, accepted defendant's children with their mother into her home, and never moved out or filed for divorce because of defendant's relationship with his girlfriend. In addition, at the time of the crimes, the defendant's and his girlfriend's romantic relationship appeared to have ended. The evidence shows that the defendant killed the victims because he was upset that his wife had left him, had moved in with his uncle, and was having an affair with his uncle. The shooter's identity was never at issue, and the State never claimed that the defendant's affair was a motive for the killings. The only issue was whether the defendant premeditated and intentionally killed the victims. Nevertheless, the trial court's error was harmless due to the overwhelming evidence against the appellant.

 

TESTIMONY/INFORMANT
State v. Devarias Mandrell Locke - M2006-00020-CCA-R3-CD (Williamson County)

Affirms two counts of selling .5 grams or more of cocaine. Appellant does not dispute proof that the appellant sold crack cocaine to an informant. Instead, he contends that "the evidence cannot support the court's verdict when the sole evidence against the appellant comes from an informant who commits perjury." The appellant complains that after he filed his appeal, he found an opinion "which has an extensive discussion of the informant and his record." The appellant argues that part of the informant's record which was listed in the opinion was not disclosed to the trial court during the informant's trial testimony. The appellant also complains that it is clear that the informant committed perjury in this case when he claimed to have identified the appellant from a photo line-up which the drug task force director testified never happened. On cross-examination, the informant testified that he had identified the appellant in a photographic line-up. However, on redirect examination, the informant explained that he did not specifically recall identifying the appellant but knew that he had made identifications from photographic line-ups in many other cases. The drug task force director testified that there was no photographic line-up in this case. The informant did not "perjure" himself with his testimony. The proof at trial, gleaned from audio tapes of the drug purchases and testimony of the informant and drug agents, revealed that on two separate occasions, the appellant met with the informant and on both occasions exchanged more than .5 grams of crack cocaine for $100. There was ample proof to support the appellant's convictions for selling more than .5 grams of cocaine.

 

DOUBLE JEOPARDY/JURY/SENTENCING
State v. Micheil Ellsworth Sheppard - M2005-02816-CCA-R3-CD (Wilson County)

Affirms especially aggravated kidnapping, aggravated robbery, theft by possession, and three counts of aggravated rape. Proof shows defendant committed three separate and distinct offenses of aggravated rape. The record reflects that the first rape occurred when the defendant penetrated the victim while she was sitting in a vehicle. The first rape was terminated when the victim became nauseated and began to vomit. Defendant got a towel, wiped the victim's face with it, then laid the towel on the ground. Thereafter, the second rape occurred when the defendant penetrated the victim while she was lying on the ground. The third rape occurred sometime later in a barn. Significantly, each rape is distinguishable by the time and location, and shows the defendant's separate and renewed intent to seek sexual gratification or inflict abuse. These convictions do not violate the prohibition against double jeopardy. Defendant also argues that the trial court erred by denying seven of his eight motions to excuse potential jurors for cause. Defendant complains that the trial court's denial forced him to exercise five of his peremptory challenges thereby limiting his ability to remove three other jurors. The court denied seven of the defendant's eight motions to excuse potential jurors for cause. These potential jurors were challenged because they were exposed to pretrial publicity, had relatives in law enforcement, or had relatives who had been the victims of sex crimes. However, the defendant only exercised peremptory challenges against five of the seven prospective jurors challenged for cause and the other two were never impaneled as jurors. As such, none of the prospective jurors challenged for cause were on the jury. Moreover, it is clear from the record that the defendant never challenged any of the impaneled jurors he now alleges to be objectionable. Defendant has not proven that he was denied the constitutional right to a trial by a fair and impartial jury. The trial court properly considered sentencing principles and all relevant facts and circumstances required for the imposition of consecutive sentences. The record supports the court's finding of extensive criminal history. Defendant's presentence report, coupled with his own admissions, indicate that the defendant committed these offenses while on parole for a prior felony, and thus, his sentences were mandatorily consecutive. Furthermore, Defendant's prior record consisting of violent offenses of rape and kidnapping coupled with Defendant's behavior in committing the offenses support a finding the Defendant is a danger to society, and the consecutive sentences imposed reasonably relate to seriousness of the offenses and are necessary to protect the public from further criminal activity by the defendant.

 

BILL OF PARTICULARS/CONFLICT/JURY INSTRUCTIONS

State v. David Michael Chubb - M2005-01214-CCA-R3-CD (Sumner County)

Appellant was convicted of four counts of aggravated sexual battery, one count of attempted aggravated sexual battery, one count of possession of marijuana, and one count of possession of drug paraphernalia. Appellant asserts on appeal that he was denied his right to a fair trial because the trial court refused to grant his motion for a bill of particulars. However, appellant has not stated how he was prejudiced by the lack of a bill of particulars. The trial court observed that the State engaged in open file discovery, enabling the appellant to discover the information known to the State. Further, when discussing election of offenses at trial, the appellant's counsel stated, "I know on the bill of particulars that the State gave me everything that they had." Appellant next argues a conflict of interest existed due to his attorney's prior representation of the victim's mother. There is no evidence in the record that an actual conflict existed because of counsel's prior representation of the mother. Even in the face of a potential conflict, counsel did not ask the court for a recess or a jury-out hearing in order to determine the extent of the conflict. Trial court erred by giving the special jury instruction "The Court instructs you that in a sexual abuse case you may convict the defendant on the basis of the victim's testimony alone. Corroboration of the victim's testimony is not necessary." Despite the appellant's objection, the trial court agreed to give the special instruction, finding that it was a correct statement of the law. The trial court erred by giving the instruction because the "special corroboration instruction 'corroborated' the victim's allegations." The instruction should not have been given. In the context of addressing whether the evidence is sufficient to support the conviction, the testimony of the victim alone could be sufficient. However, the use of the disputed language in the context of instructing the jury regarding the State's burden of proof runs a serious risk of misleading the jury.  Moreover, in Tennessee judges are prohibited from commenting on the credibility of witnesses or on the sufficiency of the evidence. The proof essentially presented to the jury a question of credibility between the victim and the appellant. The jury instruction effectively informed the jury that they need look no further than the victim's testimony to convict and thus implied that the jury need not consider all other proof. The error merits reversal of the appellant's aggravated sexual battery and attempted aggravated sexual battery convictions. However, the instruction had no impact on the appellant's drug-related convictions.

 

EVIDENCE

State v. Mario L. Smith - M2006-00402-CCA-R3-CD (Davidson County)

Affirms attempted second degree murder and vandalism over $1000. This case involved the shooting of a pedestrian by the backseat passengers of an approaching vehicle. Evidence sufficient. After being shot, the victim saw both co-defendant and defendant get out of the rear seat of the vehicle. He said that each was armed and that he heard the distinct sound of two different guns being fired at him as he fled from the scene. Witness saw the defendant load a shotgun in the trunk of the vehicle, take it out of the trunk prior to their arrival at the shooting location, and have it in his possession when the men spotted the victim walking down the street. Witness testified that the men discussed driving to "Salem Town" and acknowledged that they had enemies who lived there. The defendant volunteered at trial that the victim and his friends had been shooting at him before the incident, thus offering a motive for why he might have wanted to kill the victim.

 

SENTENCING

State v. Christopher Wayne Holden - M2006-01447-CCA-R3-CD (Marshall County)

Defendant was convicted of burglary of an automobile, two counts of theft under $500, two counts of criminal trespass, and one count of illegal possession or fraudulent use of a credit or debit card. For the Class E felony burglary conviction, Defendant was sentenced to six years as a career offender. The trial judge ordered Defendant's sentences for the misdemeanor convictions in this case to run concurrently with the felony sentence for an effective six-year sentence in the Department of Correction. The trial judge further ordered that the sentence in this case be served consecutively to his prior sentences in Coffee County and Bedford County. Defendant's sole issue on appeal is whether the trial court erred in ordering his sentence in Marshall County to run consecutively to his previous sentences in Coffee and Bedford Counties. Defendant argues that his aggregate sentence is excessive. The Court of Criminal Appeals finds the effective sentence is neither unduly severe nor undeserved given Defendant's extensive record of criminal activity. Defendant has at least seven prior felony convictions and numerous misdemeanor convictions spanning from 1988 to 2005. Defendant's convictions include arson, assault and battery, two aggravated burglaries, escape, attempted escape, eleven automobile burglaries, eight thefts, criminal trespass, forgery, vandalism, acting as an accessory after the fact, writing worthless checks, fraudulent use of credit cards, three violations of the driver's license laws, three traffic offenses, and a violation of an order of protection. The trial court acted within its discretion to find that the Defendant should serve his Marshall County sentence consecutively to his Bedford and Coffee County sentences.

 

HABEAS CORPUS

Randy L. May v. Howard W. Carlton, Warden - E2006-00308-CCA-R3-HC

(Johnson County) Affirms dismissal of petition for habeas corpus relief. A judgment that erroneously pronounces the petitioner infamous is not a colorable claim entitling him to habeas corpus relief. The Tennessee Supreme Court has twice held that a judgment erroneously pronouncing a defendant infamous should be modified to delete the portion referring to infamy. An erroneous pronouncement of infamy does not strike at the jurisdictional integrity of the sentence (life imprisonment) or the conviction (first degree murder).

 

CRIMINAL RESPONSIBILITY

State v. Latisha Jones - W2005-02673-CCA-R3-CD (Shelby County)

Affirms first degree felony murder and especially aggravated robbery. Evidence sufficient. Witness testified that defendant and three accomplices planned to rob the victim. Defendant, as the one who knew the victim, arranged a meeting on the night of the offense. As two accomplices struggled with the victim, Defendant struck the victim over the head with a beer bottle. Defendant then retrieved a hammer and struck the victim over both kneecaps. Defendant observed accomplices remove victim's possessions from the house. Defendant took some beer and left the victim's house with the others.

By its verdict, the jury accredited witness' testimony that Defendant was a participant in the plan to rob the victim, and Defendant conceded that she set up the meeting which culminated in the victim's robbery and death. Although mere presence during the commission of a crime is not sufficient to support a finding that one is criminally responsible for the conduct of another, a rational trier of fact could find based on the evidence that Defendant was an active participant in the victim's robbery and criminally responsible for the conduct which led to his death. The trial court's failure to instruct the jury on attempted especially aggravated robbery was not error. Defendant acknowledged that she was the one who initiated the meeting with the victim on the night of the offense, that she joined her accomplices in subduing the victim by striking him with a beer bottle and a hammer, that she observed her accomplices removing the victim's belongings from the house while the victim was subdued, and that she took the victim's beer with her when she left. The medical examiner's testimony corroborated the presence of injuries on the victim consistent with being struck with a hammer and a beer bottle. Witness corroborated Defendant's testimony that the group stole certain items belonging to the victim, and testified that accomplice later attempted to sell the victim's property.  In her trial testimony, Defendant did not deny that the victim was robbed, but argued instead that her conduct did not rise to the level of criminal responsibility for the conduct of her co-defendants.

 

 

 

 

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