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There has been a nationwide boom in the popularity of marijuana concentrates or extracts in the past several years.  Whether it is the ease of use, perceived health benefits, or increased potency, marijuana concentrates have increased their foothold in the marijuana market. Often times these marijuana concentrates are consumed in electric pens that look and smell similar to the devices used to consume tobacco oils and waxes. This has caused problems for law enforcement in the states where marijuana and marijuana concentrates remain illegal due to how discreetly these products can be carried and consumed.   This also makes these products the top choice for people attending the Bonnaroo Music Festival. 

 
Marijuana Concentrates

Marijuana concentrates and extracts go by a variety of names such as oil, wax, live resin, honey oil, shatter, press, or dabs. Regardless of the difference in the product of nomenclature, marijuana concentrates include any product produced by the extraction of THC from marijuana.   Concentrates remain categorized under T.C.A. 39-17-415 – Schedule VI – under the general category Marijuana or Tetrahyrdocannibanols (THC).  Based on my experience, if a citizen possesses a very small amount of marijuana concentrates or a pen with marijuana oil or wax they are usually charged under T.C.A 39-17-418 – Simple Possession/Casual Exchange – Class A Misdemeanor, and face up to 11 months and 29 days in jail, with a maximum fine of $2,500.00. 

In a recent case in Nashville, Leroy Myers was charged with aggravated assault after he allegedly shot a gun in the direction of a Metro Codes employee visiting his home. Following a bench trial, the trial court found Leroy Myers not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment with a deadly weapon. The trial court ruled that based on defense counsel’s argument and submissions to the court that the defendant effectively amended the indictment to include reckless endangerment. On appeal, Myers asserted that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of the case and that there was not an implicit amendment to the indictment to include reckless endangerment.  The Tennessee Court of Criminal Appeals affirmed the judgment of the trial court. State v. Myers, No. M2015–01855–CCA–R3–CD, 2016 WL 6560014 (Tenn. Crim. App. November 4, 2016).

A defendant cannot legally be convicted of an offense which is not charged in the indictment or which is not a lesser offense embraced in the indictment. State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997). The State, the defendant, and the trial court agreed that reckless endangerment was not a lesser included offense of intentional or knowing aggravated assault. However, when a defendant actively, yet erroneously, seeks an instruction on a lesser-included offense, the defendant effectively consents to an amendment of the indictment. State v. Greg Patterson, No. W2011–02101–CCA–R3–CD, 2012 WL 206287, at *3 (Tenn. Crim. App., at Jackson, Dec. 11, 2012)

In this case, defense counsel through his comments, submissions of case law, and argument to the court raised the issue of whether the defendant’s actions could be a lesser included offense like reckless endangerment. When the court stated it would take the matter under advisement to consider lesser included offenses like reckless endangerment, defense counsel made no objection. In furtherance of defense counsel’s argument and for the court’s consideration of lesser-included offenses, defense counsel submitted two cases for the court to consider. Both of these were reckless endangerment cases. State v. Payne, 7 S.W.3d 25 (Tenn. 1999); State v. Shaw, W2010–00201–CCA–R3–CD (Tenn. Ct. Crim. App. June 1, 2011). Based upon those facts, the trial court found an effective amendment to the indictment because the defendant actively sought to place it before the court on the uncharged offense, reckless endangerment. The trial court stated and the appellate court reiterated that the defendant cannot complain about convictions for an offense which, without his own counsel’s intervention, would not have been considered by the Court. In addition, the appellate record was incomplete and the appellate court presumed the trial court’s findings were correct.

The Tennessee Supreme Court in State of Tennessee v. Jerry Lewis Tuttle, M2014-00566-SC-R11-CD, seized the opportunity to revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). In Jacumin, the Tennessee Supreme Court refused to follow Illinois v. Gates, 462 U.S. 213 (1983), which adopted a totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for a search warrant and employed another test spawning from the United States Supreme Court decisions, Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). In Tuttle, around twenty-eight years after Jacumin was decided, the Court explicitly overruled Jacumin and adopted the totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for issuance of a warrant under article I, section 7 of the Tennessee Constitution. Applying the totality of the circumstances standard, Tennessee’s highest court reversed the Court of Criminal Appeals’ decision holding the search warrant invalid which produced marijuana, cocaine, guns, ammunition, and over 1 million dollars cash.

The Tennessee Supreme Court rested its decision on a variety of reasons including the benefit of time and review of cases from other jurisdictions applying the totality of the circumstances test. The Court stated that a vast majority of courts in other states have adopted the totality of circumstances analysis which is, in the Court’s opinion, a sufficiently definite standard for assessing probable cause in a search warrant and much better suited to evaluate the practicalities that underlie the probable cause inquiry.  While the basis of knowledge and veracity remain relevant under the totality-of-the-circumstances test, these prongs need not be independently established as a result of the Court’s decision.

The Court appears to unanimously agree this is an improvement upon the previous test employed in Jacumin by ensuring that an informant’s basis of knowledge and veracity are not viewed as entirely separate prerequisites to probable cause requiring rigid and technical analysis.   However, this decision appears to some as limiting and nearly eradicating constitutional supervision regarding police searches. The rigid and technical analysis mentioned by the Court is often what protected citizens from unwarranted police searches and prevented police from using evidence against the criminally accused that was seized as a result of these unlawful searches.

In 2013 the Tennessee Department of Safety unveiled new kiosks at DMVs across the state which helped make renewing a license a much quicker process. These kiosks are also equipped with access to state’s driver’s license network records and facial recognition software.

So what does that have to do with fraud?  After any person uses a kiosk to update their driver’s license, the software runs your information using the facial recognition software to determine if you have ever received a driver’s license under a different name.  If so, that person is then “flagged” and the Department of Safety’s identity crime unit is notified and an investigation ensues.

Because the software is so new and most people are using the kiosks for the first time, most of the flagged individuals are alleged to have used an alternate name to gain a driver’s license from years earlier.  Although it is possible they could face criminal charges, most are subject to a two (2) year suspension of their driver’s license due to the statute of limitations.

Time is of the Essence

Aside from very limited exceptions enumerated within the post-conviction statute and discussed below, a person in custody under a sentence of a court of this state (Tennessee) must petition for post-conviction relief under this part within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of the petition shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file the action and is a condition upon its exercise. Tenn. Code Ann. 40-30-102(a).

Exceptions to the 1 year Requirement

Metro Nashville Police Chief Steve Anderson recently proposed a $50.1 million plan to purchase body cameras for all 1,440 of the city’s police officers and to install new dash cameras on 880 department vehicles. Although Mayor Barry has been a staunch supporter of body cameras, she raised concerns at the hearing on March 16, 2017. Her concerns were centered on the cost of this proposal in light of similar programs implemented in other states that were far less costly. Despite Mayor Barry’s concerns, Chief Anderson appears to be of the mindset that if the department is going to do it, it better be done right, and the cameras must be working at all times in order to insure public confidence.

 
Police body cameras, which provide video footage of arrests and encounters between police and civilians, are considered one way to reduce the potential for police misconduct. These cameras could also aid persons who are criminally charged in presenting a defense in addition to rebutting an officer’s testimony. On the flip side, the State could benefit from the video footage if it is relevant to the case and use it against the defendant at trial. For example, in a driving under the influence (DUI) case, the reason why the driver was stopped often becomes an issue. Common reasons for a traffic stop include following too closely, swerving over a traffic line, failure to come to a complete stop at a stop sign or running a red light. These “stop” issues, which fall under the probable cause standard, could be simplified by the video footage. In addition, incidents involving police officers using force or a citizen resisting arrest could also be clarified by video that will be preserved under this proposed plan.

 
To date, this proposed plan and its funding is essentially a work in progress, and we will keep you apprised of its progress and implementation. When and if the body and vehicle camera program is implemented, it will be a game changer in future criminal cases.

The next “it” city, Nashville, has seen tremendous growth, new neighborhoods, cranes all over downtown and an economic boom.  While this is great, it also comes with its own set of problems.  The one problem that most of us will see in the mail shortly is the valuation placed on our homes by the Tax Assessor for Metropolitan Nashville-Davidson County.

This April, Davidson County homeowners will start receiving reappraisal notices from the county property assessor’s office.  The average property assessment increase in Davidson County is 35%.  The increase in property value is great for those who plan on selling their homes, but those who are long-time residents planning to stay will not reap any benefit from the increase.

Luckily, any property owner who believes that the new assessment value regarding their property is incorrect has the right to appeal that assessment.  The appeal process has several steps, all of which can result in a decrease, increase, or your property assessment remaining the same.  Please note that with every step listed below, time is of the essence, or else you may lose your right to appeal.

Following a guilty verdict, the presumption of innocence is no longer with the petitioner. Therefore, the burden of proof shifts to the petitioner to show that he or she received ineffective assistance of counsel. If the petitioner is successful, the conviction could be set aside and a new trial granted.

Clear and Convincing Evidence is Required

To be successful in a petition for post-conviction relief, the petitioner must prove all factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2006)(emphasis added). Evidence is “clear and convincing when there is no serious or substantial doubt about the accuracy of the conclusions drawn from it.  Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)).

I recently had a conversation with a local trial judge in Middle Tennessee. He spoke candidly when he admitted that his greatest worry when he took the bench was ruling on objections quickly and thoughtfully. A veteran judge advised him not to worry. He said that even if you rule in error, convictions rarely, if ever, get overturned based on evidentiary objections and the error is almost always harmless. Errors in the admission of evidence are subject to harmless error analysis meaning that 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. Tenn. R. App. P. 36(b). The veteran judge’s statement was generally true, but was it true in all cases? A recent Tennessee case affirmatively answered that question in the negative.

In State of Tennessee v. Timothy Bishop, No. M2015-00314-CCA-R3-CD , 2016 WL 7324307 (Tenn. Crim. App. Dec. 16, 2016), Timothy Bishop was convicted at trial of two counts of child abuse, a Class D Felony. In this matter, the Court of Criminal Appeals of Tennessee ruled that the trial court erred in admitting, under the excited utterance exception to the rule against hearsay, the victim’s statements at school that the defendant was responsible for his bruises. The appellate court stated that not only did the trial court err admitting the hearsay statements but the error was not harmless. Since the only direct evidence at trial that the defendant hit the alleged victim came from the statements that were improperly admitted as excited utterances, the convictions were reversed and a new trial was granted.

The moral of the story is that evidentiary objections are crucial in the trial of your case and  must be made at the proper times during trial to preserve the record on appeal and to insure a fair trial. It is important to hire a trial lawyer with experience and knowledge of evidentiary rules to fight for you.

Gun Rights

Several pieces of legislation will be discussed before the Tennessee Legislature this week that aim to lessen restrictions on gun ownership, and would allow handgun carry permit holders to carry almost anywhere in the state. The legislation would allow handgun carry permit holders to have their gun anywhere in the state, on a boat if it is not loaded and in a school if the principal is informed. Another bill sponsored by Rep. Tilman Goins, R-Morristown, would allow people with restraining orders to carry guns if they have a valid carry permit.

Another bill pertaining to gun rights filed by Rep. Andy Holt, R-Dresden, would give criminal and civil immunity to people who use a handgun in self-defense, defending another person, or defending a victim of a crime in progress.