Tennessee Court of Criminal Appeals reverses trial court’s suppression of warrantless blood draw

Upon reconsideration of State v. Brown, No. W2014-00162-CCA-R9-CD (Tenn. Crim. App. Apr. 30, 2015), in light of State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016), the Tennessee Court of Criminal Appeals reversed a trial court’s suppression of a warrantless blood draw because the good-faith exception to the exclusionary rule applied.  A blood draw is a search protected by the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution.  Because our constitutions protect against unreasonable searches, the State must generally obtain a warrant prior to conducting a search.  If the State does not obtain a warrant, the search will be presumed unreasonable and the results will be suppressed “unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.”  State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971).  These exceptions include “search incident to arrest, plain view, stop and frisk, hot pursuit, search under exigent circumstances, and . . . consent to search.”  State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005).

While exigent circumstances is an exception to the warrant requirement, it is unclear when exigent circumstances applies in warrantless blood draw cases.  Five decades ago, the United States Supreme Court upheld a warrantless blood draw based on exigent circumstances where it took time to investigate the scene of an accident and bring the defendant to a hospital and there was no time to seek out a magistrate and obtain a warrant.  Schmerber v. California, 384 U.S. 757 (1966).  Afterwards, some states interpreted Schmerber narrowly, applying a totality of the circumstances test to determine whether exigent circumstances existed.  Other states, including Tennessee, interpreted Schmerber broadly as creating a per se rule equating alcohol dissipation to exigent circumstances.

Four years ago, the United States Supreme Court decided the Schmerber “state split” in Missouri v. McNeely, 569 U.S. 141 (2013).  In McNeely, the Court rejected the per se rule and determined that the existence of exigent circumstances “must be determined case by case based on the totality of the circumstances.”  The Court emphasized that “where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Last year, the Tennessee Supreme Court decided Reynolds, which involved a 2011 accident that killed two people.  The deputy in Reynolds spoke with the defendant and the surviving passenger and believed that the defendant had consented to a blood draw.  Thus, without obtaining a warrant or advising the defendant that she could refuse the blood draw, the deputy ordered medical personnel to obtain a sample of the defendant’s blood.  Examining the case, the Court determined that the warrantless blood draw violated the defendant’s constitutional right “to be free from unreasonable searches and seizures because the record failed to establish that the defendant had the capacity to revoke her statutory implied consent.”  Nonetheless, the Court upheld the warrantless blood draw by adopting the good-faith exception to the warrant requirement.  Applying the good-faith exception, the Court determined that the deputy’s actions were justified because, at the time of the warrantless blood draw, Tennessee interpreted Schmerber as establishing a rule that the natural dissipation of alcohol within the bloodstream created an exigent circumstance justifying a warrantless blood draw in every drunk driving case.  Consequently, whether the officer realized it or not, his actions were in objectively reasonable good-faith reliance on binding appellate precedent.

Applying the reasoning in Reynolds to the case before it, the Tennessee Court of Criminal Appeals held that the good-faith exception to the warrant requirement justified the defendant’s warrantless blood draw.  Like in Reynolds, the warrantless blood draw in this case took place in 2011 when warrantless blood draws were per se reasonable in DUI cases.  Accordingly, the officer acted in objectively reasonable good faith reliance on binding appellate precedent when conducting the search, and therefore, the good-faith exception to the warrant requirement applied.  Since an exception applied, the court of criminal appeals reversed the trial court’s suppression of the BAC results and remanded the case to the trial court for further proceedings consistent with the opinion.

State v. Brown, No. W2014-00162-CCA-R9-CD (Tenn. Crim. App. Dec. 1, 2017)

First-degree murder conviction reversed because the trial court failed to instruct the jury on self-defense

Yesterday, the Tennessee Court of Criminal Appeals reversed a first-degree murder conviction because the trial court did not give the jury a self-defense instruction.  A trial court is required to provide a jury with a self-defense instruction “[i]f the evidence at trial fairly raises a general defense.”  According to the Tennessee Supreme Court, sufficient evidence to fairly raise a general defense “is less than that required to establish a proposition by a preponderance of the evidence.”  State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013).  In determining whether the above standard is met, the trial court must consider the evidence in the light most favorable to the defendant and draw all reasonable inferences in the defendant’s favor.

Under Tennessee Code Annotated section 39-11-611, a person acts in self-defense when the person:

is not engaged in unlawful activity and is in a place where the person has a
right to be has no duty to retreat before threatening or using force intended
or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of
death or serious bodily injury.
(B) The danger creating the belief of imminent death or serious bodily
injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.

In addition, a person who provokes another’s use or attempted use of unlawful force is not justified in threatening or using force unless the person “abandons the encounter or clearly communicates to the other the intent to do so; and the other person nevertheless continues or attempts to use unlawful force against the person.”

In this case, two of the three eyewitnesses testified that the defendant was the primary aggressor.  However, the third eyewitness stated that the victim “pulled his pants up as in with aggression” and started “coming towards [the defendant].”  According to the third eyewitness, the defendant then put his hands up like “[h]old up” and the victim reached for the defendant’s gun in his waistband.

Interestingly, the third witness’s testimony differed from his initial statement to police.  Originally, he told police that the victim pulled his pants up at the defendant and the defendant pushed him off.  Then, the defendant reached for his gun as the victim rushed him.

Despite the inconsistency, the court of criminal appeals found the third witness’s testimony sufficient to fairly raise the question of self-defense.  The court noted that, while the third witnesses’s testimony was inconsistent with his original statement, at trial he consistently testified that the victim rushed the defendant and reached for the defendant’s gun.  Importantly, the jury could have believed the third witness instead of the other two witnesses.  This factual issue was for the jury, not the court, to decide.  Therefore, since the evidence fairly raised a self-defense claim but the jury was denied the opportunity to consider whether the defendant acted in self-defense, the Tennessee Court of Criminal Appeals reversed the conviction and ordered a new trial.

State v. Boswell, No. W2016-02591-CCA-R3-CD (Tenn. Crim. App. Dec. 5, 2017)

Felony simple possession modified to misdemeanor simple possession because of a change in the law

This past week, the Tennessee Court of Criminal Appeals modified a conviction for felony simple possession to misdemeanor simple possession because a change in the law provided for a more lenient sentence.  In the case, the defendant had four prior convictions for drug possession, and at the time he committed the crime, Tennessee Code Annotated section 39-17-418(e) (2014) provided that “[a] violation under this section is a Class E felony where the person has two (2) or more prior convictions under this section.”  Applying the above statute, the trial court determined that the conviction was a Class E felony, and the court sentenced the defendant as a career offender to six years.

However, before the defendant was sentenced, Tennessee Code Annotated section 39-17-418(e) was amended to provide that “[a] violation under this section is a Class E felony where the person has two (2) or more prior convictions under this section and the current violation involves a Schedule I controlled substance classified as heroin.”  Under Tennessee Code Annotated section 39-11-112, when a penal statute is amended and the subsequent version “provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act.”  Since the statute was amended before the defendant was sentenced and the defendant’s current conviction did not involve heroin, the Tennessee Court of Criminal Appeals reversed the trial court’s decision and remanded the case for the imposition of a sentence of eleven months and twenty-nine days for a Class A misdemeanor.

State v. Hester, No. W2016-01822-CCA-R3-CD (Tenn. Crim. App. Nov. 21, 2017)

Tennessee Court of Criminal Appeals reverses denial of judicial diversion in abuse of corpse case

Earlier this year, the Tennessee Court of Criminal Appeals reversed a trial court’s denial of judicial diversion after finding that the trial court’s ruling was not entitled to a presumption of reasonableness.  Judicial diversion is the procedure where the trial court does not impose the sentence against a qualified defendant who pled guilty, was found guilty, or pled nolo contendre, but rather, places the defendant on probation.  See T.C.A. § 40-35-313.  If the defendant successfully completes probation, he can request that the charge(s) be expunged from his record.  If the defendant fails to complete probation, the sentence will go into effect and he cannot have the charge(s) expunged from record.

A qualified defendant is one who (1) has not previously been granted adult judicial diversion or pretrial diversion, (2) has not been convicted of a felony or Class A misdemeanor for which a sentence of confinement was served, and (3) is not seeking the deferral of a Class A or Class B felony, a sexual offense, driving under the influence of an intoxicant, or vehicular assault prior to the minimum sentence required by T.C.A. § 39-13-106.  While a qualified defendant is eligible for diversion, it is not guaranteed.  Rather, it is left to the trial court’s discretion.  In determining whether a qualified defendant should receive judicial diversion, the trial court must consider and weigh the following factors:

(a) the accused’s amenability to correction, (b) the circumstances of the offense, (c) the accused’s criminal record, (d) the accused’s social history, (e) the accused’s physical and mental health, and (f) the deterrence value to the accused as well as others.  The trial court should also consider whether judicial diversion will serve the ends of justice – the interests of the public as well as the accused.

State v. King, 432 S.W.3d 316, 326 (Tenn. 2014) (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).  While the trial court does not have to recite all the applicable factors, the record should reflect that it considered the factors and identified specific factors applicable to the case before it.  When a trial court does so, its decision is entitled to a presumption of reasonableness and the appellate court will uphold the decision so long as there is any substantial evidence in the record to support it.  However, when a trial court fails to consider and weigh the applicable factors, the presumption of reasonableness does not apply and the appellate court will either conduct a de novo review or remand the issue for reconsideration.

In the case at hand, a motorist found the remains of a deceased new born baby in the alley behind the restaurant where the defendant worked.  It appeared that the infant had been run over by a vehicle.  After an investigation, the officers tracked down the defendant, who stated that she had had a miscarriage and put the baby in a dumpster behind the restaurant.  A medical exam could not determine the cause of death and whether this was a live birth or not.  Given there was no way to tell whether the infant had been born alive, the defendant was charged with the abuse of a corpse instead of homicide.

At the initial sentencing hearing, the defendant testified that she went to the restroom near the end of her shift and had a miscarriage there: “[T]he baby came out.  It wasn’t moving or making any sounds or anything.”  After the miscarriage, the defendant was “distraught, hurt and shocked and just weak all in one.”

I just was thinking I just really want to go home.  I just have to go home.  And so I put the baby in the bag and put it in the dumpster and I told my manager I have to go.  I had a[n] accident.  And of course he could see all the blood over me.

The defendant denied running over her child, and asked the trial court to grant judicial diversion so that the offense would not prevent her from getting a good job, which she needed to provide for her other children.

During cross-examination, the defendant said that she could not explain why she did what she did and that she was just in shock.  The trial court was incredulous at her lack of explanation and implored the defendant to offer more:

This is the only time you’re going to get a chance to go through this and you might as well tell me now because it will depend on how I rule on this.  I don’t care what the truth is.  I just want to know what it is.

Despite the court’s questioning, the defendant adamantly denied that she acted out of a desire to get rid of the child.  In response, the trial court said that the defendant needed “serious counseling” and worried that she was “likely to repeat the same behavior again.”  Indicating that it was not ready to rule on the defendant’s request for judicial diversion, the court asked the defendant to provide “a written report from a doctor and a psychologist.”  Over the next eleven months, the defendant underwent two mental health evaluations and attended counseling.

At the final sentencing hearing, the trial court denied the defendant’s request for judicial diversion, concluding that it wanted people to have notice in the form of a felony conviction on the defendant’s record so “that if for some reason, or another, something like this even remotely happened, again, due to this, everyone would be put on notice.”  Moreover, the court expressed “a very, very deep concern” for the safety of the defendant’s current and any future children.  Notably, the court stated that it had done “some outside research” on cases similar to the defendant’s:

There is a huge number, in terms of the increase of the number of women who are being prosecuted exactly for this same type of offense.  And they are not going as far as we went on this case.  They have a woman who has recently had a baby, or a miscarriage, or was pregnant and if they can find the fetus, or the baby, they are prosecuting murder one, across this country, in numbers that you would not believe.  And I don’t want the same thing to happen to her.

On appeal, the defendant argued that the trial court erred in denying her request for judicial diversion because it failed to weigh and consider all the factors relevant to a determination of judicial diversion.  Agreeing with the defendant, the Tennessee Court of Criminal Appeals stated that the “[t]he trial court did not mention any of the applicable factors and focused exclusively on the circumstances of the offense and its own concerns about the potential of future harm to the defendant’s children.”  Importantly, the appellate court noted the trial court’s improper use of independent research, which weighed heavily in its denial of judicial diversion.  Because of the above errors, the trial court’s decision was not entitled to a presumption of reasonableness.

Conducting a de novo review, the appellate court stated that the defendant’s social history weighed heavily in favor of a grant of judicial diversion.  She had no criminal record.  There was no evidence that she used illegal drugs or drank alcohol in excess.  She possessed a high school diploma and some credits toward an associate’s degree.  At the time of the hearing, the defendant had worked nearly her entire adult life.  However, the arrest had already caused her to lose one good-paying job.  Regarding her other children, she had never been the subject of a Department of Children’s Services investigation and there was no evidence in the record that she had ever harmed her other children.  Also, there was no evidence in the record that the defendant caused the death of her infant.  Furthermore, medical records showed that one of her previous children had been born prematurely and had to spend several weeks in the neonatal intensive care unit.

Additionally, between the time of her plea and the final sentencing hearing, the defendant complied with all conditions and picked up no new criminal charges.

Regarding the circumstances of the offense, there was evidence in the record that, after the defendant placed the dead infant in the trash bin, animals took the infant’s corpse from the trash bin and that it was later run over by a vehicle.  While these facts are certainly unsettling, they are already incorporated into the offense of abuse of a corpse.  Thus, there was no evidence in the record that “the defendant’s actions significantly exceeded those required to satisfy the elements of the offense.”

Importantly, the court of criminal appeals took issue with the trial court’s independent research.  While “a trial court may take into account matters that are of common knowledge to every person,” Fairbanks v. State, 508 S.W.2d 67, 69 (Tenn. 1974), this does not include the contents of news articles.  State v. Henretta, 325 S.W.3d 112, 144 (Tenn. 2010).  The appellate court quoted our supreme court,

There is ample authority for the proposition that a judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of the judicial proceedings. Judicial knowledge upon which a decision may be based is not the personal knowledge of the judge, but the cognizance of certain facts the judge becomes aware of by virtue of the legal procedures in which he plays a neutral role. No judge is at liberty to take into account personal knowledge which he possesses when deciding upon an issue submitted by the parties. In other words, “[i]t matters not what is known to the judge personally if it is not known to him in his official capacity.”

Vaughn v. Shelby Williams of Tenn., Inc., 813 S.W.2d 132, 113 (Tenn. 1991).  The court of criminal appeals stated that there was no evidence in the record to support “the trial court’s finding of a significant increase in the occurrence of cases similar to the defendant’s.”

Regarding the trial court’s statement that crimes similar to the defendant’s were prosecuted as first degree murder, the appellate court noted that while it recognized that leniency in a plea agreement may support a formidable sentence, this was only where the defendant was originally charged with and the facts supported a much greater charge.  A trial court’s consideration of an offense different or greater than that for which the defendant was indicted violates the defendant’s right to due process.

Finally, the appellate court weighed the defendant’s ready admission to and full cooperation with the police in favor of the grant of judicial diversion.

Based on the foregoing, the Tennessee Court of Criminal Appeals reversed the trial court’s denial of judicial diversion and remanded the case for the entry of an order placing the defendant on judicial diversion.

State v. Lacy, No. W2016-00837-CCA-R3-CD (Tenn. Crim. App. May 12, 2017)


In termination of parental rights cases with at least one solvent party, guardian ad litems may make more than the indigent compensation cap

Under Tennessee Supreme Court Rule 13, which provides compensation for indigent parties, a guardian ad litem (“GAL”) may make up to $1,000 in most termination of parental rights cases.  If the case is extended and complex, the GAL may earn up to $2,000.  Alternatively, in cases where the parties are solvent, Rule 17.03 of the Tennessee Rules of Civil Procedure authorizes reasonable GAL fees as costs.  Further, Rule 54.04 of the Tennessee Rules of Civil Procedure provides that, in the trial court’s discretion, costs may be allowed to the prevailing party.  Under Rule 17.03 and Rule 54.04, GAL fees may be significantly higher than the $1,000 and $2,000 caps under Rule 13.

Given the above, the next question is what happens when one party is solvent and the other party is indigent.  On Tuesday, the Tennessee Court of Appeals answered that question and held that, where one party is solvent, Rules 17.03 and 54.04 of the Tennessee Rules of Civil Procedure authorize reasonable GAL fees that are higher than the Rule 13 caps.  In the case at hand, the solvent party brought an action to terminate an indigent parent’s parental rights and lost.  Afterwards, the GAL submitted a request for $9,615 in fees and $104.81 in travel expenses, to be paid by the solvent party.  After hearings on the matter, the trial court ultimately granted the GAL’s motion and ordered the solvent party to pay the entire amount.

On appeal, the solvent party argued that the trial court erred in (1) awarding GAL fees that exceeded the maximum compensation under Rule 13 and (2) ordering the solvent party to be solely responsible for payment of the fees.  In ruling for the guardian ad litem, the court of appeals noted that Rule 13 must be read in light of its general purpose, i.e., to provide a means of compensation for attorneys appointed to represent indigent parties.  Nothing in Rule 13 forbids attorneys from seeking compensation from solvent parties.  Further, Rules 17.03 and 54.04 allow attorneys to seek compensation from solvent parties.  Based on the foregoing, the appellate court held that a GAL may seek reasonable compensation from a solvent party.

Regarding whether the indigent party should pay any of the GAL’s fees, the court of appeals first noted that the solvent party initiated the action and lost.  Moreover, the solvent party did not dispute that it was capable of paying the fees.  Further, since the only other party was indigent, the solvent party was far more able to bear the costs of the GAL’s fees.  Finally, the solvent party did not challenge the GAL fees as unreasonable or unnecessary.  Therefore, the Tennessee Court of Appeals affirmed the trial court’s order that the solvent party pay the GAL’s fee.

In re Ashton B., No. W2017-00372-COA-R3-PT (Nov. 7, 2017)