Clay County Defendant’s Sentence Upheld

Yesterday, the Tennessee Court of Criminal Appeals upheld Judge David Patterson’s denial of alternative sentencing for a Clay County, Tennessee defendant.  Previously, the defendant had pled nolo contendere to attempted aggravated child neglect, a Class B felony.  As part of her plea agreement, she agreed to serve an eight-year term in the manner imposed by the trial court.

The trial court sentenced the defendant to serve eight-years at thirty percent, noting: (1) The defendant had failed to submit to a drug screen prior to the sentencing hearing; (2) The victim was particularly vulnerable because of his infancy; (3) The victim was “almost dead” and the defendant failed to recognize the problem; (4) The indictment originally charged a Class A felony.

On appeal, the defendant argued that the trial court erred because (1) The defendant did not have a long criminal history; (2) She successfully completed a previous sentence on probation; (3) She complied with the terms of her bail for the instant charge; (4) The trial court failed to properly consider mitigating factors; (5) There was no evidence to suggest that she intentionally or knowingly neglected the victim; (6) She brought the victim to the hospital after being told to do so; (7) There was no evidence of neglect to any of her other five children; (8) She gave birth to two children while on bail prior to her guilty plea, and those children will not be able to raised by their mother; and (9) Her confinement will not act as a deterrence and will not act to prevent the depreciation of the seriousness of the offense.

Despite the above arguments, the court of criminal appeals upheld the trial court’s decision, stating that a trial court’s sentencing decision is reviewed for abuse of discretion, with a presumption of reasonableness granted to within-range sentences reflecting a proper application of the purposes and principles of the Sentencing Act.  In this case, the trial court properly took into account the sentencing considerations in T.C.A. § 40-35-103 and whether any enhancement and mitigating factors existed.  See generally T.C.A. §§ 40-35-113, -114.  The trial court also “look[ed] behind the plea bargain” to see that the defendant was originally charged with aggravated child neglect, a Class A Felony that is ineligible for alternative sentencing.  Taking all of this into account, the court of criminal appeals determined that the trial court did not abuse its discretion and upheld the sentence of confinement.

State v. McLerran, No. M2016-02005-CCA-R3-CD (Tenn. Crim. App. Aug. 8, 2017)

Hindering secured creditor conviction reversed for insufficient evidence

It’s rare to see a conviction overturned for insufficiency of the evidence because the standard is so high, i.e., no rational jury could have found the accused guilty.  Moreover, after a conviction, the presumption of innocence is replaced with the presumption of guilt.  All questions about the credibility of witnesses, the weight of their testimony, and the reconciliation of conflicts, goes in the State’s favor.  The State, and not the defendant, is entitled to the “strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”

Given this high standard, it’s not surprising that when there is a reversal for insufficient evidence, it’s in an area of law that students dread and attorneys avoid – secured transactions.  While secured transactions seems daunting, most people have experience with it, e.g., paying for a car overtime.  To use an example, if you owe your neighbor $100 and tell him, “Keep my lawn mower until I pay you back,” you’ve participated in a secured transaction.  Your lawn mower is security for the payment.  If you don’t pay him, he can keep your mower until you do (or eventually and with the proper notice, sell it).  If you do pay him, you get your lawn mower back.

In criminal law, there is theft and there is hindering a secured creditor.  If you steal your neighbor’s lawn mower, you’ve committed a theft.  If you “steal” your lawn mower back from your neighbor after you’ve told him to keep it until you pay the $100 you owe him, you’ve not committed a theft.  Why?  Because you haven’t stolen his property.  The lawn mower isn’t his.  It’s yours.  However, while you haven’t committed a theft, you have hindered a secured creditor, an E Felony.

Under Tennessee Code Annotated section 39-14-116, hindering a secured creditor occurs when:

(a) A person who claims ownership of or interest in any property which is subject of a security interest, security agreement, deed of trust, mortgage, attachment judgment or other statutory or equitable lien commits an offense who, with intent to hinder enforcement of that interest or lien, destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.

Notably, the intent to hinder enforcement must be present at the same time one “destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.”  If someone lacks this criminal intent, he may be liable for civil damages, but he isn’t guilty of a crime.

In this case,  the defendant bought a car with a loan, listing the alleged victim as the lienholder on the bill of sale.  Then, the defendant obtained a second loan from Tennessee Title Loans, Inc. without telling them about the first loan.  Finally, he registered the vehicle and did not mention the first loan.

The Tennessee Court of Criminal Appeals held that this evidence was insufficient for any rational jury to convict the defendant of hindering a secured creditor.  The court reasoned that, while the defendant was not forthcoming about the first loan, there was nothing else to support an inference that he intended to hinder enforcement when he obtained the second loan.  Unlike previous cases where the evidence was sufficient, at the time the second loan was taken out, the defendant was not trying to avoid repossession of the vehicle nor was the defendant engaged in a fraudulent scheme to sell encumbered vehicles to third parties.  Given there were no additional facts to support an inference of intent and mere knowledge of a first loan when obtaining a second loan is not criminal, the appellate court reversed the judgment of the trial court and vacated the defendant’s conviction.

State v. Carey, No. E2016-01125-CCA-R3-CD (Tenn. Crim. App. Aug. 9, 2017)

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)

You can’t remove a juror just because she’s black

The Tennessee Court of Criminal Appeals granted a Bedford County defendant a new trial after determining that the prosecutor improperly challenged a juror simply because she was black.  During jury selection, the prosecutor asked whether anyone had a “relative or somebody that has a drug problem.”  Ten jurors – nine white and one black – answered yes, but the prosecutor only struck the black juror.

When asked why he struck the black juror, the prosecutor answered, “[the juror had] a family problem with drugs.  That could be people that have used drugs; that could be people in the distribution of drugs.”  In reviewing his explanation, the court of criminal appeals noted that the prosecutor never actually asked about the distribution of drugs.  Thus, his response was at best questionable.  Given the prosecutor’s answer was less than credible and he did not strike any similarly situated white jurors, the Tennessee Court of Criminal Appeals reversed the defendant’s convictions and ordered a new trial.

State of Tennessee v. Tommy Lee Collins, Jr., No. M2015-01030-CCA-R3-CD (Tenn. Crim. App. May 16, 2017)