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.

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.

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In Tennessee, if you are found to be in possession of over ½ ounce (14.175 grams) of marijuana you will most likely be charged with violating TCA 39-17-417, Possession of a Schedule VI with Intent to Manufacture, Deliver or Sell, a Class E Felony, which carries 1-6 years in prison.  However, you may not be guilty of this crime, a felony, despite the weight of the marijuana being greater than 14.175 grams.  The reason is that in Tennessee the amount of marijuana is not the only factor for the jury to consider when determining if you are guilty of a felony for possessing marijuana with the intent to manufacture, deliver or sell the marijuana.

Tennessee Code Annotated 39-17-419 states that it may be inferred from the amount of a marijuana possessed by an offender, along with other relevant facts surrounding the arrest, that the marijuana was possessed with the purpose of selling or otherwise dispensing.  The statute goes on to say that it may be inferred from circumstances indicating a casual exchange among individuals of a small amount of marijuana so exchanged was possessed not with the purpose of selling. In State of Tennessee v. John Belew, 348 S.W.3d 186 (Tenn. Crim. App. 2005), the Criminal Appeals Court concluded that this statute permits the jury to draw an inference of intent to sell or deliver when the amount of the controlled substance and other relevant facts surrounding the arrest are considered together.  Therefore, the State of Tennessee must present some evidence of intent, in addition to the weight of the marijuana, to convict an individual in Tennessee.

Many felony drug cases begin with a drug detective or police officer using techniques like confidential informants, wire-taps, GPS surveillance, or various other tactics to prove that an individual is in the business of selling the illegal drug – in this case marijuana.  The government spends lots of resources, sometimes from their own task force pockets, to get the drug dealers off the street.  In cases like these, the issue is typically not whether the marijuana involved was for personal use or for resale because the amounts are much greater than an amount typically possessed for personal consumption.  Plus, the government usually has some type of proof to put before the jury relating to specific drug deals, exchanges, money laundering or other dealing activities, which would be the type of evidence needed to rebut the inference in T.C.A 39-17-419.

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.”

Nashville is set to host its summer tradition of CMA Fest, which will welcome over one hundred and fifty thousand country music fans to the downtown area. With such a concentration of people to the downtown area, the Nashville Metropolitan Police will also be out in large numbers.

As native Nashvillians, we know this event can be a great time to enjoy the best country music in the world. However, your weekend can get ruined in no time with one wrong decision. As criminal defense attorneys, we get a lot of calls after CMA Fest has ended from people who are arrested or cited and are being forced to make an unplanned trip back to the Music City.

To help you avoid getting in trouble at CMA Fest and having to make this unexpected trip back to Nashville, we have compiled a list of 8 tips to help you have a safe and incident free 2016 CMA Fest.

It’s that time of year again, when 85,000+ music lovers flock to the farmlands of Manchester, Tennessee for four days of great vibes, great tunes, and lots of high fives. It’s an event that people plan for all year, including local authorities. With all eyes on them this weekend, Tennessee authorities will be out in force ensuring everyone gets in and out of town safely.

Image of man getting pulled over by police
I’ve been part of the Bonnaroo experience several times and know firsthand what an incredible experience it can be. As a criminal defense attorney in Tennessee that specializes in representing people with DUI, marijuana and other drug possession charges, I’ve also seen many careless festival goers’ weekends ruined before they even start.

With a little planning ahead and some common decency, this weekend can and should be one of the highlights of your summer.

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On January 27, 2016, WKRN reported that dozens of tenants at the Howe Garden Apartments in East Nashville received notices that they were to leave their apartments in the middle of the lease. This obviously left tenants, who still had months left on their leases, furious and confused. It wasn’t until new outlets asked the property management company for more information that the apartment complex announced that the notices were just a mistake.

The underlying issue with this story is that the apartment complex in question recently was purchased by a new owner. Currently, Howe Garden is an affordable complex in a vastly growing Nashville. It is not uncommon to have complexes purchased by new owners, renovated and put back up for lease at a higher rate. But to do that, the current residents must have their leases run out or agree to leave.

Under Tennessee law, new owners inherit the lease agreement between the tenants and original landlord when they purchase property that is currently being rented. This means they must honor the lease agreement, including the duration of the lease. The new owner must also follow Tennessee’s Uniform Residential Landlord-Tenant Act.