Improperly admitted statements lead to new trial

The Tennessee Court of Criminal Appeals reversed a Davidson County child abuse conviction because (1) Statements against the defendant were improperly admitted as excited utterances and (2) The error was not harmless.

An excited utterance is an exception to the hearsay rule that excludes out of court statements offered to prove the truth of the matter asserted.  Tenn. R. Evid. 803(2).  The excited utterance exception applies when (1) There is a startling event or condition that causes the stress of excitement; (2) The statement relates to the startling event or condition; and (3) The statement was made while the declarant was under the stress of excitement.  In determining whether the statement was made while the declarant was under the stress of excitement, a court may consider the interval between the event and the statement; the nature and seriousness of the events; the appearance, behavior, outlook, and circumstances of the declarant; and whether the statement is in response to an inquiry or whether it is self-serving.

The erroneous admission of evidence is subject to harmless error analysis.  The test for harmless error analysis is found in Tennessee Rule of Appellate Procedure 36(b), which states, “A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”

In this case, the witnesses testified that the declarant “wasn’t upset” and “calm [though] scared.”  Moreover, his disclosure was “hesitant,” and it came after ten minutes of questioning.  Given the above, the court of criminal appeals concluded that the victim was not under the stress or excitement at the time he made the statements.  In particular, the court noted that the statements lacked “spontaneity.”

Since the admission of the statements was error, the court of criminal appeals then considered whether the error was harmless or reversible.  The court noted that the defendant had accounted for all of the child’s injuries with the statement that the child had fallen from a swing.  Also, the victim testified at trial that he had fallen from a broken swing.  While there was some evidence to support the conviction, the only direct evidence was the improperly admitted statements.  Therefore, the court reversed the conviction and remanded for a new trial.

State v. Bishop, M2015-00314-CCA-R3-CD (Tenn. Crim. App. Dec. 16, 2016)

Do not raise ineffective assistance of counsel on direct appeal

The Tennessee Court of Criminal Appeals just denied an inmate’s post-conviction petition based on ineffective assistance of counsel because the issue was previously raised in the inmate’s motion for new trial and on direct appeal.  The court noted that raising ineffective assistance of counsel on direct appeal is “fraught with peril.”  Even if the reasons why counsel was ineffective are different, litigating the issue before post-conviction precludes litigating it during post-conviction.

That isn’t to say that there is never a time to argue ineffective assistance of counsel on direct appeal.  Theoretically, an attorney could be so horrible and the evidence could be so weak that a win is guaranteed on direct appeal.  Imagine an attorney breaking down in front of a jury and saying, “My client really is guilty.  He killed her.  He told me he did it.”  If the evidence against the client was also weak, it wouldn’t make sense to wait in jail for the appeals process to finish before arguing the issue during post-conviction.  However, in reality, this would almost never happen because a trial judge would declare a mistrial.  Thus, there is almost never a good reason to raise ineffective assistance of counsel on direct appeal.

If you’re interested in the Tennessee appeals process, check out this document from the Tennessee Attorney General’s Office.

Kirkwood v. State, No. W2016-00948-CCA-R3-PC (Tenn. Crim. App. Aug. 7, 2017)

Missed appeal deadline leads to one-year suspension for Nashville attorney

Last week, the Tennessee Supreme Court increased the punishment of a Nashville attorney from a public censure, a practice monitor for one year, and six additional hours of CLE, to a one-year suspension from the practice of law with six months to be served on active suspension and six months to be served with a practice monitor and six additional hours of CLE.  The reason for the suspension was twofold: (1) The attorney failed to file a criminal appeal within the deadline and failed to communicate with his client about the appeal; and (2) The attorney had previously been disciplined for misconduct, including the failure to timely file a notice of appeal in two separate cases.  This suspension will cause attorneys throughout the State to take notice of their case load and appeal deadlines.

According to the opinion, the attorney now uses a tickler system to remind him of upcoming deadlines.

In Re: Paul Julius Walwyn, BPR #18263, No. M2016-01507-SC-BAR-BP (Tenn. 2017)