Last week's COURT REPORT

THE COURT REPORT

February 19-23, 2007

Kevin Batts

 

HIGHLIGHTS: Evidence that the defendant had pornography on his computer has little probative value and would likely cause substantial prejudice in his child rape case in State v. Edwardo Rodriguez . Also in Rodriguez, the defendant's sentences are modified to be served concurrently, rather than consecutively because there is no evidence of residual physical or mental impact of the defendant's actions on the victims, nor does the record contain evidence of what made these offenses more aggravated than other child rapes. In State v. Elvin Williams defendant was transferred to the physical custody of the Department of Correction prior to requesting a sentence reduction, therefore the trial court lost jurisdiction over the defendant's sentence. In State v. Timothy Jowers, the Appellant is not entitled to jail credit on his Tennessee sentence for time served in Oklahoma where he was serving a prison sentence for a crime committed in that state, a conviction that, aside from forming the basis for a probation revocation, was wholly unrelated to his Tennessee conviction.

 

EVIDENCE/PRIOR BAD ACTS/SENTENCING

State v. Edwardo Rodriguez - M2005-02466-CCA-R3-CD (Wilson County)

Affirms two counts of rape of a child. Trial court erred in allowing testimony that the defendant viewed pornography on his home computer, because a jury could infer from such evidence that the defendant had a propensity to commit child rape. In its pretrial argument for admission of the computer pornography evidence, the state said "the computer pornography goes to motive and intent to show that he has a thing for children." Evidence of a defendant's character is not admissible for the purpose of proving that the defendant acted in conformity with that character, nor is evidence of other crimes, wrongs, or bad acts admissible to prove the character of a person to show action in conformity with that character. Such evidence has little probative value and would likely cause substantial prejudice. The error is harmless because there was sufficient proof of the defendant's guilt. Defendant next argues that the trial court erred in denying his two requests for a mistrial after there was reference to other allegations of child abuse against him. The first reference was when the victim stated that the defendant molested or raped him a couple other times. The trial court denied defendant's motion for mistrial finding that the defendant could use the testimony during cross-examination but that it did not warrant a mistrial. The second reference was when a witness mentioned other allegations against the defendant involving the defendant's step-daughters. The answer was responsive to a question by defense counsel; thus, the response was invited by the defendant. Relief is not required to be granted to a party responsible for an error. Defendant's sentences are modified to be served concurrently, rather than consecutively. The record does not contain evidence of residual physical or mental impact of the defendant's actions on the victims, nor does the record contain evidence of what made these offenses more aggravated than other child rapes. Also, the time span of undetected activity was very short in that there was no evidence of repeated molestations occurring undetected over a period of time.

 

RESTITUTION
State v. Kenneth Workman - M2006-00441-CCA-R3-CD (Giles County)

Defendant pled guilty to aggravated burglary, Class D felony theft, and Class D felony vandalism involving damage to, and items taken from, a ranch where defendant was formerly employed. The trial court imposed a four-year sentence to be served in the Department of Correction and ordered restitution in the amount of $5000.00. Defendant argues that the amount of restitution is excessive. Restitution is reduced from $5000.00 to $2750.00. The amount of pecuniary loss suffered by the victims was $2400.00 in repair/replacement costs and $700.00 expended for advertising. The Defendant does not challenge the $2400.00 award of repair/replacement costs but contends that the $700.00 award was improper because the advertising was not done at the behest of law enforcement. However, the trial court correctly concluded that the amount spent by the victims to secure the safe return of the stolen property was properly included in the restitution award. The statute does not require that a victim's cooperation in the investigation be at the behest and/or instruction of law enforcement, only that the expenses be reasonable. Restitution for the repair/replacement costs and advertising expenses is proper. Under the statute, the victims are entitled only to special damages-that is, those that are actually a result of the crime and those which follow as "a natural and proximate" consequence thereof. The proof was too speculative to support a $2250.00 award for lost rental income based upon the victim's inability to rent horse stalls following the break-in.

 

SENTENCING/JURISDICTION
State v. Elvin Williams - M2006-00287-CCA-R3-CO (Davidson County)

Defendant pled guilty to the sale of less than .5 grams of cocaine and received an agreed upon sentence of six years and one month. The trial court ordered the defendant to serve his sentence in the Department of Correction. On appeal, the defendant argues that the trial court erred in finding that it was divested of jurisdiction pursuant to T.C.A. Sec. 40-35-212 and denying his motion for reduction of sentence. Affirmed. The record reflects that the defendant was transferred to the physical custody of the Department of Correction prior to requesting a sentence reduction. Once the defendant was transferred to the custody of the Department of Correction, the trial court lost jurisdiction over the defendant's sentence.

 

EVIDENCE/OPENING STATEMENT

State v. Marvin Nance - E2005-01623-CCA-R3-CD (Greene County)

Affirms aggravated sexual battery. Evidence sufficient. The 13-year-old victim lived with the defendant (her step-father) and her mother. One night, while her mother was not home, the defendant rubbed Vicks salve on the victim's chest, including her breasts. The victim spoke with her mother about this incident, and the mother confronted the defendant. The defendant admitted that he had "played" with the victim's breasts. Later, during a tape recorded conversation, the defendant again admitted that he touched the victim's breasts. The defendant moved out of the home a "couple of days" after the incident. This evidence is sufficient for a rational trier of fact to find the essential elements of the crime. The Court of Criminal Appeals does not find "manifest necessity" for a mistrial based on the prosecutor's comments to the jury, "And we can't tell you the day that this started. We can't tell you how many times it happened. We can tell you that it happened more than once, and probably tell you that it happened more than twice. And we can tell you the day that it stopped." The prosecutor was attempting to tell the jury what she expected the proof to show, and, outside the presence of the jury, the trial court clarified the facts upon which the State was seeking to rely for the Defendant's prosecution. The trial court then carefully and thoroughly instructed the jury about the State's election and the requirements that it must meet before the jury could properly convict the Defendant. A jury is presumed to follow a trial court's instructions.

 

CRIMINAL RESPONSIBILITY

State v. Tarrean Nuby - W2005-02900-CCA-R3-CD (Shelby County)

Affirms attempted first degree murder and aggravated robbery. The victim was a pizza deliveryman. The evidence showed the Defendant met the victim in the driveway of an abandoned house. The Defendant stated he would go get the appropriate amount of money for the pizza, when someone pushed the victim into a carport. The victim was told to get on the ground, and he complied. Co-defendant pointed a gun at him. The victim testified that the defendant and another man took money out of his pockets while co-defendant kept the gun firmly pressed against his jaw. Once the robbery was completed, co-defendant shot the victim in the head and told him not to move. The three men fled the scene in the victim's vehicle. There was sufficient evidence to hold the defendant criminally responsible for the actions of the co-defendant. Evidence showed that the defendant intended to benefit from the robbery of the victim and that he aided in the crimes. At a minimum, the defendant lured the victim close to the house, where he was pushed into the carport. The defendant then pilfered the victim's pockets for cash or other personal effects while the co-defendant aimed the gun at him.  Additionally, there was testimony from the victim that the defendant left in the victim's vehicle. This is sufficient evidence for a jury to determine that the defendant aided in the robbery of the victim and intended to benefit from that crime.

 

EVIDENCE
State v. Artis Reese -W2006-00378-CCA-R3-CD (Shelby County)

Affirms two counts of aggravated robbery and one count of aggravated criminal trespass. Evidence sufficient. The proof at trial established that two men, armed with handguns, forced the victims to exit their vehicle. One of the men drove away in the car. Victim testified that the appellant was the man who stood on her side of the car and showed her his gun. She identified the appellant both from a photographic lineup and at trial. Witness testified that the appellant drove a Buick Roadmaster, the type of car that the suspects were driving. When a police officer approached the appellant and co-defendant to question them about the robberies, the two men were in close proximity to a Buick Roadmaster. The appellant fled when approached by officers. Inside the Buick, officers found a handgun.

 

SENTENCING

State v. Timothy Jowers - W2006-01487-CCA-R3-CD (Henderson County)

Appellant pled guilty to robbery and possession of contraband in a penal facility. As part of the plea agreement, the trial court approved a concurrent sentence of five years for each conviction. Appellant was ordered to complete a six-month inpatient treatment program for drug and alcohol abuse prior to serving the balance of his sentence on probation. Subsequently, a probation violation warrant was issued against the appellant, alleging that he failed to complete the six-month program as required by the trial court. The appellant filed a motion to revoke his own probation, asserting that he was incarcerated in Oklahoma serving a five-year sentence for a conviction in that state and admitting to the probation violation. The trial court denied the motion to revoke probation because the warrant had not yet been served on the appellant due to his incarceration in Oklahoma. After the warrant was finally served on the appellant, an amended probation violation warrant was filed and served on the appellant. The trial court held a hearing, revoked appellant's probation, and awarded appellant jail credits for time served in Tennessee prior to his plea and for time served in incarceration after service of the probation violation warrant. On appeal, appellant complains that the trial court improperly denied retroactive jail credits for time served in Oklahoma. T.C.A. ? 40-23-101(c) provides for credits against the sentence only if the incarceration, claimed as the basis for the credits, arises from the offense for which the sentence was imposed. The appellant was incarcerated in Oklahoma, serving a prison sentence for a crime committed in that state, a conviction that, aside from forming the basis for the probation revocation, was wholly unrelated to his Tennessee conviction. Thus, the appellant is not entitled to jail credit on his Tennessee sentence for time served in Oklahoma.

 

HABEAS CORPUS
Fredrick L. Brown v. State - E2005-02549-CCA-R3-HC (Bledsoe County)

Petitioner appeals the summary dismissal of his petition for writ of habeas corpus. Petitioner claims that the concurrent life sentences he is serving for two first degree murder convictions are illegal and void because the second offense was committed while he was out on bail for the first offense and that, under these circumstances, Tennessee law mandates consecutive sentencing. However, based upon on the Tennessee Supreme Court's recent decision in Charles G. Summers v. State of Tennessee, summary dismissal predicated on the ground that the Petitioner did not provide factual documentation to support his contention that he was, in fact, on bail during the commission of the offenses at issue was proper.

 

EVIDENCE/EXPERT
State v. Danny L. Davis - E2005-02301-CCA-R3-CD (Greene County)

Affirms vehicular homicide. Case involves a crash in which a passenger in the defendant's car was killed. Testimony at trial was that the defendant was speeding. A van driver testified that he stopped and looked both ways before entering the roadway where the accident occurred. A passenger in the van corroborated the driver's testimony by testifying that the van came to a complete stop prior to going forward into the roadway. Defendant acknowledged that he had been speeding on a different roadway that morning prior to the accident. A separate witness testified that he was a passenger in a vehicle driving on the road where the accident took place and said that he observed a vehicle which matched the description of the defendant's vehicle being driven recklessly at a high rate of speed. Another witness testified that he heard a vehicle driving down the road "like it was racing." The trooper who investigated the accident said he determined the defendant's vehicle to have been traveling approximately eighty-two miles per hour prior to impact, while the van was traveling at approximately eight miles per hour. The force of the impact between the two vehicles was so great that it caused the van to go airborne for twenty-five to thirty feet prior to landing on its side. A rational jury could have found that the defendant was driving in a reckless manner and that the recklessness caused the collision. The court further rejects Defendant's contention that the State failed to present evidence that there was a death and that the death was a proximate cause of the defendant's conduct. The victim was alive prior to the collision and was pronounced dead immediately after the collision. Defendant had no alternate explanation for the victim's death. Defendant contends that the trooper failed to qualify as an expert and was improperly allowed to testify regarding the speed of the vehicles in the collision. However, the trooper testified that he had attended many training courses pertaining to traffic accident and collision reconstruction. The trial court allowed him to testify regarding the speeds of the vehicles, but not the point of impact. The trial court found that the trooper was qualified to testify about computer analysis to compute pre-impact and post-impact speeds and for using the drag test to determine the respective speeds of the vehicles involved in the crash. The trooper testified that he had twenty-one years of service and had extensive training and experience in accident investigations. His training included the methods used to determine the respective speeds of the vehicles involved in the instant case. Further, the trooper testified about the facts underlying his opinion to support his testimony. Defendant argues that the trial court erred in denying his motion in limine to prohibit testimony regarding the purchase of beer by the occupants of the car prior to the collision. He contends that the jury was prejudiced by the testimony that the defendant stopped the car so his associates could purchase more beer despite the fact they were already intoxicated. However, the motion was properly denied because the testimony was relevant.

 

CONFESSION/EVIDENCE
State v. Alvin Allen - M2005-02573-CCA-R3-CD (Maury County)

Affirms child rape. The trial court properly denied the appellant's motion to suppress his statement to police. Investigator testified that he advised the appellant that the appellant was not under arrest and that he gave the appellant Miranda warnings. In the appellant's written statement, he acknowledged receiving the warnings. Investigator also testified that the appellant said he understood the Miranda warnings and that he went over the appellant's written statement with him. Although the entire statement is written in cursive handwriting and the appellant claimed that he could not read cursive writing, the officers testified that the appellant appeared to understand the statement. Evidence sufficient. It is uncontroverted that the victim was under thirteen years of age at the time of the offense. The victim testified that the appellant came into the room where she was sleeping, rubbed her back and stomach, and tried to put his hand "down there." The victim protested, and the appellant left the room. The victim fell asleep but later awoke to find her boxer shorts pulled down, her legs bent, and the appellant's knees on her feet. She stated that the appellant put his penis inside of her. Although the victim waited two weeks to report the rape and there were inconsistencies between her testimony and what she told police, the defense cross-examined the victim about the inconsistencies. Moreover, the appellant told police that he digitally penetrated the victim.

 

 

Kevin Batts
Deputy Executive Director
Tennessee District Public Defenders Conference
211 Seventh Avenue North, Suite 320
Nashville, TN 37219-1821
(615) 741-5562