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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.

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.

If you have been convicted of a crime and your appeal has been denied, the fight is not over. At trial and on appeal, you have the right to effective assistance of counsel in your case. A denial of the Sixth Amendment right to the effective assistance of counsel is simultaneously a denial of the right to be heard by counsel, as provided under Article 1, section 9 of the Constitution of Tennessee. Baxter v. Rose, 523 S.W.2d. 930(Tenn. 1975). Tennessee provides an avenue for relief within Tennessee Code Annotated section 40-30-101 et. seq. If you are victorious, your conviction could be set aside and a new trial granted.

In a post-conviction relief proceeding when the effectiveness and competency of one’s counsel is challenged, the petitioner must show that his counsel’s work was not “within the range of competence demanded of attorney’s in criminal cases,” Baxter v. Rose, 523 S.W.2d. 930, at 936 (Tenn. 1975); Tidwell v. State, 922 S.W.2d. 497, at 500 (Tenn. 1996), and that his case was prejudiced as a result of counsel’s ineffectiveness. Strickland v. Washington, 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069, 80 L. Ed. 2d. 674 (1984).

Deficient Performance

For persons in Tennessee who are charged with drug possession, a criminal charge is not the end to their troubles.  Under Tennessee, certain persons who are found to be in possession of drugs can be assessed an Unauthorized Substance Tax by Tennessee’s Department of revenue.

 

The Tennessee Department of Revenue will send out a “Notice of Assessment” that indicates that a person has been found in possession of untaxed, unauthorized substances and that they are liable for tax payments to the state.  The amount taxed will vary depending on the substance and the amount you were alleged to possess, but will always be greater than $10,000.00.

 

Why is the tax greater than $10,000.00?  There are two reasons.  First, under Tennessee law, individuals who possess unauthorized substances can be categorized as “merchants”.  A “merchant” is defined as any person who actively or constructively possesses any unauthorized substance in a quantity sufficient to create a principal tax liability of at least $10,000.00.  This bring us to our second reason, the Tennessee Legislature has created a schedule of tax amounts on unauthorized substances.  For example, the State levies 40 cents for each gram of harvested marijuana, $350.00 for each plant of marijuana and $50.00 for each gram of cocaine.  When the State receives a report from the arresting agency, they review the amounts, determine if it meets the $10,000.00 threshold, and if so, assess the tax against you.

In Davidson County it was normal practice for the Sheriff’s Department to serve respondents for orders of protection by telephone and never actually hand them a physical copy of the petition.  On June 6, 2016, a Davidson County Circuit Judge ruled this practice of “service” via telephone as insufficient.

Orders of Protection are civil actions that, if granted, can have significant legal ramification, including contempt of court or criminal charges.  The significance of this order is that if an individual was only served by telephone, and never actually handed a physical paper, and then failed to appear at court, an Order of Protection was granted against them.  The June 6th ruling holds that such an Order of Protection would be void because the court did not have personal jurisdiction against the individual who was only served by a telephone call.

This is obviously an issue of great concern, and is expressed in June 6th opinion.  In a footnote the Judge goes on to say, “The Court is concerned that if this method of service of process is the current policy of the Davidson County Sheriff’s Office, the courts of the Twentieth Judicial District may be entering Orders of Protection against respondents in violation of their due process rights…. This Court is fearful that hundreds, if not thousands, of orders of protection and corresponding criminal convictions thereon could be void as the courts never obtained personal jurisdiction over the respondent.”