“This case should serve as a cautionary tale for any prosecutor, defense attorney, or trial court who attempts to negotiate or accept a guilty plea involving concurrent state and federal sentencing.”

So began the Tennessee Court of Criminal Appeals reversal of a post-conviction court.  Post-conviction wins are rare.  Extremely rare, even.  So, when there is a post-conviction win, it typically isn’t on the “standard” post-conviction issues, such as the amount of time the attorney spent counseling the petitioner.  Normally, there has to be a “smoking gun,” black and white type error where counsel messed up.  Even if there is such an error, the facts supporting it have to be proven by clear and convincing evidence and it had to actually prejudice the defendant.  In other words, the error must undermine confidence in the outcome in a way that “renders the result of the trial unreliable or the proceeding fundamentally unfair.”

In this case, there was a smoking gun type error, i.e., the plea agreement guaranteed the petitioner that his state sentence would run concurrently with his federal sentence.  In fact, the bottom of the plea agreement read, “ALL OF THE ABOVE TO RUN CONCURRENTLY WITH FEDERAL SENTENCE.”  The problem here is the State cannot make that agreement.  In other words, the State can’t force the federal government to run the sentencing concurrently.  As the court of criminal appeals put it, “[A] state court provision requiring federal and state sentences to run concurrently is not worth the paper on which it is written.”

Based on the above, the Tennessee Court of Criminal Appeals reversed the post-conviction court’s denial of relief and allowed the petitioner to withdraw his guilty plea.

Schaeffer v. State, E2016-01614-CCA-R3-PC (Tenn. Crim. App. Oct. 6, 2017).

Sometimes, a “win” in General Sessions is actually a loss.

This week, the Tennessee Court of Criminal Appeals reversed a criminal court’s dismissal of a domestic assault charge after the court dismissed the charge based on a general sessions judge’s findings.  At the preliminary hearing, the general sessions judge found probable cause for domestic assault by offensive contact but did not find probable cause for domestic assault by bodily injury.  After the general sessions judge dismissed the domestic assault by bodily injury charge, the district attorney presented the charge to the grand jury, which returned a single-count indictment for domestic assault by bodily injury.

At the trial court level, the defendant filed a motion to dismiss the indictment based upon the preliminary hearing testimony and the general sessions judge’s decision that the evidence did not support a charge for domestic assault by bodily injury.  The State responded that Tennessee Criminal Procedure Rule 5.1 permitted the State to present its case to the grand jury even if the general sessions judge did not find probable cause at the preliminary hearing.  After considering the evidence presented at the preliminary hearing and the general sessions judge’s decision, the criminal court judge dismissed the indictment as a violation of due process.

However, the court of criminal appeals reversed the criminal court’s decision, noting Tennessee Rule of Criminal Procedure 5.1(b)-(c):

(b) WHEN PROBABLE CAUSE FOUND. – When the magistrate at a preliminary examination determines from the evidence that an offense has been committed and there is probable cause to believe that the defendant committed it, the magistrate shall bind the defendant over to the grand jury and either release the defendant pursuant to the applicable law or commit the defendant to jail by a written order.

(c) WHEN PROBABLE CAUSE NOT FOUND. – When the magistrate determines from the evidence that there is not sufficient proof to establish that an offense has been committed or probable cause that the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense. . . .

Citing State v. Thurman Randolph, No. W2006-00261-CCA-R9-CD, 2006 WL 2993459, at *5 (Tenn. Crim. App. Oct. 20, 2006), perm. app. denied (Tenn. Mar. 19, 2007), the appellate court stated that “the dismissal of a charge at a preliminary hearing does not prohibit the State from obtaining an indictment at a subsequent date, and . . . the ‘issuance of the indictment by the grand jury . . . mark[s] the beginning of a new criminal proceeding . . . .'”  In the case at hand, since the general sessions judge’s decision did not preclude the State from obtaining an indictment at a subsequent date, the court of criminal appeals reversed the trial court’s dismissal of the indictment.

At this point, you may be thinking – “Even if the general sessions dismissal doesn’t help the defendant, that doesn’t necessarily mean the defendant is ‘worse off.’  How can a defendant sometimes be ‘worse off’ by a dismissal at the general sessions level?”  Good question.  If the general sessions judge dismisses a charge and the grand jury indicts on that charge, the defendant has to make a new bond.  Typically, if the general sessions judge finds probable cause and the case is bound over to the grand jury, the criminal court judge will allow the defendant to remain on the same bond.

Therefore, if a defendant is on bond at the preliminary hearing, it may be best to lose the preliminary hearing.  That isn’t to say that this is always the best course of action.  While the State is not bound by the general sessions judge’s decision, the State doesn’t take a judge’s dismissal lightly.  Sometimes, a dismissal at the preliminary hearing will end the case.  Further, if a client cannot make bond, a dismissal of his charge(s) will get him out of jail, at least until the grand jury indicts (or he is arrested on new charges).

Given the above, an attorney with a client in general sessions should counsel the client about the goals of the preliminary hearing and the risks/rewards of winning or losing at that level.

State v. Lawson, M2017-00238-CCA-R3-CD (Tenn. Crim. App. Oct. 3, 2017).

Tampering with evidence conviction overturned

Under Tennessee Code Annotated 39-16-503, it is a C Felony to tamper with evidence.  The statute defines tampering with evidence as altering, destroying, or concealing any record, document or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding.  Based on a cursory reading of the statute, it would seem like briefly placing a bag of marijuana in one’s mouth during a traffic stop would constitute tampering with evidence because it is concealing a thing with the intent to impair its availability as evidence in an investigation.

However, as the Tennessee Court of Criminal Appeals made clear, this is not always the case.  In State v. Linsey, the appellate court reversed a tampering with evidence conviction where the defendant briefly put a bag of marijuana in his mouth during a traffic stop but spit it out in plain view after the officer asked if he had marijuana.  The court noted that the bag was not altered or destroyed.  Moreover, the investigation was delayed minimally, if at all.  Therefore, the evidence was insufficient to sustain a tampering with evidence conviction.

Nonetheless, the defendant did not get off scot-free.  The court of criminal appeals found that the evidence was sufficient to sustain a simple possession conviction.  Still, simple possession carries a maximum sentence of 11 months and 29 days, while tampering with evidence carries a sentence between 3 and 15 years, depending on a defendant’s classification.  I bet the defendant is happy he spit quick or he would have had a much harder pill to swallow.

State v. Linsey, No. M2015-01851-CCA-R3-CD (Tenn. Crim. App. Sept. 27, 2016)

DUI Blood Results Suppressed Because Blood Drawn in the Wrong County

Like the Utah nurse in the news for refusing to draw blood from an unconscious patient, Lewis County has a nurse willing to protect the rights of his patients.

In the case, the arresting officer obtained a search warrant to draw the defendant’s blood in Lewis County, Tennessee.  Specifically, the warrant commanded the officer to “take custody of the suspect and transport the suspect to a person qualified to draw blood in Lewis County.”  Further, the jurisdiction of the magistrate that signed the warrant was limited to Lewis County.  See Tenn. R. Crim. P. 41(a) (“A magistrate with jurisdiction in the county where the property is located may issue a search warrant authorized by this rule.”).  Given the above, the trial court concluded (and the appellate court agreed) that the search was limited to Lewis County.

However, after a Lewis County nurse refused to take the defendant’s blood, the officer had the defendant’s blood drawn in Perry County, Tennessee, by a nurse that was not qualified to draw blood in Lewis County.  Thus, the search was unconstitutional.

Despite the officer’s actions, the State tried to save the search through (1) exigent circumstances and (2) the good faith exception.  First, the State argued that a “recalcitrant nurse” created the exigent circumstances, i.e., the loss of alcohol in the blood.  The Tennessee Court of Criminal Appeals, however, strongly rejected the State’s contention that the nurse was recalcitrant:

We disagree with the State’s characterization of Mr. Lineberry as “recalcitrant.” While Tennessee Code Annotated section 55-10-406 lists those who are authorized to draw the blood of someone accused of a drunken driving related offense, neither this statute nor any other Tennessee statute compels medical personnel to forcibly draw a suspect’s blood whenever requested by an officer to do so. It has been recognized that multiple ethical and safety concerns arise from a forcible blood draw by medical personnel. See, e.g. Jacob M. Appel, Nonconsensual Blood Draws and Dual Loyalty: When Bodily Integrity Conflicts with the Public Health, 17 J. Health Care L. & Pol’y 129, 149-54 (2014); E. John Wherry, Jr., DWI Blood Alcohol Testing: Responding to a Proposal Compelling Medical Personnel to Withdraw Blood, 18 Seton Hall Legis. J. 655, 657, 670-71 (1994). Moveover, medical personnel should not be threatened, coerced, or intimidated into delay treating a sick or injured patient in order to forcibly draw the blood from a suspected drunk driver, who is uninjured and was not involved in an accident, for the sole purpose of assisting the officer in securing evidence. Given the safety and ethical concerns and the primary purpose of medical facilities to treat those who are sick and injured, a policy by a medical facility to decline to engage in forcible blood draws is reasonable. Contrary to the State’s characterization of Mr. Lineberry as “recalcitrant,” the evidence established that Mr. Lineberry was simply doing his job and complying with the medical facility’s policy.

Moreover, the court noted that the officer did not (1) contact the Lewis County medical facility before arriving or (2) attempt to locate anyone else in Lewis County qualified to draw blood.  Finally, it was not clear whether the defendant had reached the level of “complete absorption.”  If he had not reached the level of complete absorption, his BAC would have been increasing instead of decreasing.  Based on the foregoing, the appellate court rejected the State’s exigent circumstances argument.

The State then argued that the good faith exception applied.  However, the good faith exception does not apply to violations of the United States and Tennessee Constitutions.  Since the officer violated the defendant’s constitutional rights, the Tennessee Court of Criminal Appeals affirmed the trial court’s suppression of the blood draw.

State v. Nunnery, No. M2016-01932-CCA-R9-CD (Tenn. Crim. App. July 13, 2017).


Prosecutor’s use of rap lyrics during closing argument leads to new trial

The Tennessee Court of Criminal Appeals reversed a first degree murder conviction because the prosecutor quoted lyrics from a rap song on the defendant’s social media page (after the trial court told him not to do so).  Note, these were not lyrics the defendant wrote.  Rather, these lyrics were from a song the defendant merely posted to social media.  Here is what the prosecutor said:

I don’t know if this is going to come as a surprise, but I really like rap music, I always have, Snoop Dogg, Jay-Z, now Drake and some others, and I have them because of the artistry of that music form can transport me to places that I don’t know about. They can describe with vivid, even brutality, things that are foreign to my experience, things that I don’t know about. There are obviously like any song anywhere in the world, there are good things, songs about good things and songs about bad things, there are songs that don’t have anything to do with rap about good things and bad things, it’s the difference between Good Vibrations and Folsom Prison Blues. It’s the difference between Nothing but a G thing and a song about somebody getting killed. But music can take us to a different place and it can explain things that we have a hard time explaining ourselves. There’s a local rapper who doesn’t . . . have anything to do with this case, it’s just I heard it, he’s local, and describe this lyric. And it’s got some rough language and I apologize it says, “N-—s wanna play, so they going down. N—-s wanna beef, so I cut em down. When you see me, you better move around unless you want to duk down.” That’s why you drive an orange car. That’s why you get your little man to do it for you. “If you see me, you better move around.” Three o’clock in the afternoon on a Thursday, don’t matter, bunch of people, I’ll get ya, I’m gonna be feared, I’m to be respected, and so when you get caught up, you won’t put my name in it, you’ll put the name in it of the two dead guys. It is something incomprehensible, but we know that there are rough men out there ready to do violence, and they do violence when people fear them. It still doesn’t give us a good reason why. It is cold comfort to [the victim’s family].

Where to begin…  Granted, “N—– wanna beef, so I cut em down” is a bit more violent than the prosecutor’s “good things” song, Nothing but a G thing.  After all, “Nothing but a G thing” only advocates smacking bitches that talk shit and pimpin’ hoes.  Still, the “Nothing but a G thing” example wrecks his entire argument.  This prosecutor wasn’t advocating domestic violence and human trafficking by his endorsement of a 90s hit song.  He just overlooked those violent parts and bobbed his head like most people that listen to rap music.  However, I guess this rule only applies to well-educated white people.  If you’re a poor black person from the inner city, you must mean it.

To use legalese, the prosecutor inflamed the passions or prejudices of the jury by quoting these rap lyrics.

New trial.

State v. Sharpe, No. M2015-00927-CCA-R3-CD (Tenn. Crim. App. Nov. 2, 2016)