Wednesday, March 31, 2010

Tenn trucker invades Colorado

Colo. Police Arrest Tenn. Driver Suspected Of DUI
LONGMONT, Colo. (AP) ― A police commander in Colorado says it wasn't hard finding a Tennessee semitrailer driver suspected of plowing through yards in an upscale neighborhood, demolishing a fence, and knocking down a lamppost and street sign.

Longmont Police Cmdr. Tim Lewis says there were trees dangling from his rig.

David Kent of Lebanon, Tenn., was arrested late Saturday on suspicion of driving under the influence and 17 counts of hit and run.

Police say a tree was uprooted, at least eight parked vehicles were scratched, and several cars also were hit.

Big pot bust

THP Trooper Grant Montgomery stopped a car for a window tint violation in Fayette County last around 7 am on Tuesday March 29th. A drug dog from the 30th Judicial Task Force alerted. The gas tank was removed and behind it was 176 pounds of marijuana.
The driver, Jose Angel Garcia, 38, of Irving, Texas is charged with felony possession with intent for resale. The 2004 Ford pickup and marijuana were seized. Garcia was arrested and taken to the Fayette County Jail.

Send me your guilty as charged verdicts

Prosecutors,

Take a look at a defense attorney website: http://www.duitrouble.com/

I want on our new website to list your successes the way this attorney lists his. We will do this in the "current news" area.I'd lie to be able to list some favorable trial verdict every day, but I need your help to do so. We need to be able to counter nonsense like that on the attorneys web site that can lead the public to believe that if they pay enough for an attorney they will get a reduction or acquittal. Thanks for your help. Tom

Tuesday, March 30, 2010

Day in the Legislature

The Senate and House Judiciary committees did not act on any traffic related laws today. The House Judiciary committee killed the bill, which would have eliminated pre-trial diversion by a vote of 7-5. You can watch the video of the testimony at:
http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HB3283

You will need to choose the video clips section and select the March 30 video.

The way attorney David Raybin described pre-trial diversion did not sound anything like the pre-trial diversion nastiness we experience as we write 8 page letters of denial that are then reversed by Judges. However, he said it loud and passionately and convinced some legislators.

A Bad plan

Police in Cleveland, Ohio say a motorist fleeing officers in Cleveland abandoned his car and jumped a fence into a prison yard.

Is this what you would call VOLUNTARY IMPRISONMENT?

Friday, March 26, 2010

Trial Convictions Affirmed

This Week in the Court of Criminal Appeals
-------------March 26, 2010---------------

Trial Conviction Affirmed--Prosecutor----------Top Charge

State v Lockhart-----------Frank Harvey---------DUI
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Donald%20Lockhart%20OPN.pdf

State v Hawkins-----------Andrew Frieberg-----Agg Sexual Battery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Terry%20Wayne%20Hawkins%20OPN.pdf

State v Oyeleye-----------Abby Wallace---------Robbery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Amos%20Oyeleye.pdf

State v Clark-----------Jody Pickens-------Att 1st Degree Murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Carlous%20Leon%20Clark.pdf

State v Murray---------Pamela Fleming-----Facilitation of robbery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Lance%20Murray.pdf

Thursday, March 25, 2010

New Supreme Court decision

See State v Swift at the link below.

The defendant was convicted of Agg Robbery. The Court reduced it to aggravated assault and theft. The issue had to do with proximity of the threat of violence and fear to the time of taking the merchandise.

The Court adopted the common law rule requiring that the violence or fear precede or be contemporaneous with the taking. The theft in this case occurred a couple minutes prior to trying to leave the store, when he was confronted and pulled a knife.

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20State%20v%20Kevin%20Swift%20opn.pdf

New Market man arrested on 13th DUI charge



Hobart Reagan was driving on a revoked license and had 12 prior DUI convictions when he was arrested in Sevier County. He had been drinking and took xanax. He, of course, refused a blood test. He once had a 10 year sentence.

http://www.wate.com/Global/story.asp?S=12206226

Officer killed in his home

It is sad to report that Greeneville Police Department Sgt. Roger Self was found shot to death in his home Wednesday night. TBI is investigating. His death is being investigated as a homicide.

Read more at: http://www.johnsoncitypress.com/News/article.php?ID=74708

Carjacking can be a dumb thing to do

ATLANTA — Atlanta police say a man stole an SUV from a woman on an Atlanta street, then was killed in an accident after he drove the vehicle onto Interstate 20.

Atlanta police spokesman James Polite says the woman was forced out of the SUV late Wednesday night. He says the driver got onto I-20 and headed west, but struck the rear of another vehicle.

Polite says the SUV hit a guard rail and flipped down an embankment, and the driver was ejected and died at the scene. He has not been identified.

Wednesday, March 24, 2010

Knoxville school bus driver charged with DUI

The good news is he had not picked up the students yet. The bad news is he was on the way to pick up students.

Read about it at:

http://www.tennessean.com/article/20100324/NEWS04/100324011/Knoxville+school+bus+driver+charged+with+DUI+

Radar, Lidar and Breath Test Operator law

The following has been passed by the Legislature and is on the Governor's desk for signing this into law:

Bill Summary
Rule 702 of the Tennessee Rules of Evidence requires that expert witnesses be qualified by knowledge, skill, experience, training, or education.

This bill requires that in any judicial or administrative proceeding in which the results of a radar, laser or similar device used to measure the speed of a motor vehicle are being introduced to prove the speed of the motor vehicle or the conduct of the driver of the vehicle, such results may not be admissible for such purposes unless the law enforcement officer operating the device is certified by a recognized certification organization in the field as qualified to operate the device used.

ON MARCH 11, 2010, THE HOUSE ADOPTED AMENDMENTS #1 AND #3 AND PASSED HOUSE BILL 2769, AS AMENDED.

AMENDMENT #1 requires that the law enforcement officer operating a radar, laser, or similar device used to measure the speed of a motor vehicle must be trained in the use of the device pursuant to guidelines established by the national highway traffic safety administration or POST, in order for the results of the use of the device to be admissible as proof of the speed of the motor vehicle or the conduct of the driver of the vehicle.

AMENDMENT #3 requires that the law enforcement officer operating a breathalyzer or similar device used to measure the alcohol content in a person's blood be trained by a recognized certification organization in the field as qualified to operate the device, in order for the results of the use of the device to be admissible as proof of the alcohol content in a person's blood or the intoxication of the person.

Tuesday, March 23, 2010

Good day at the Legislature

The House Judiciary Committee passed the DUI bond bill, HB3281 without discussion.

The implied consent bill also passed with one dissenter. I testified concerning that bill. You can see it at:
http://tnga.granicus.com/MediaPlayer.php?view_id=33&clip_id=2695

Friday, March 19, 2010

New Supreme Court Cases

Check out two new cases from the Tennessee Supreme Court. These are big.

State v Talley involves whether a condo resident had a reasonable expectation of privacy in a commonly owned interior hallway. He did not.
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20State%20v%20Wm%20Glenn%20Talley%20OPN.pdf

State v Turner involves Miranda warnings. The Trial Judge ruled against the State and suppressed admissions. He believed the waiver was equivocal. The Court decided otherwise that the offender waived his right to silence.

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20State%20v%20Thomas%20L%20Turner%20II%20opn.pdf

Let's give credit where it is due. Prosecutors Deborah Housel and J Paul Newman fought through these issues at the trial level.
Assistant Attorney General Mark Fulks handled these on appeal. Thanks to their efforts we have precedents that will help us with these situations for years to come.

Wednesday, March 17, 2010

Convicted, disbarred West Va. lawyer now our problem?

News from Charleston, W Va informs that Scott Palmer Mason has been suspended by the State Supreme Court for domestic battery and cocaine possession charges. The Office of disciplinary counsel also notes other ethics violations and a 2009 Kentucky DUI. Naturally, he has set up a solo practice in Nashville, according to the story. The story also casts doubt on whether he is licensed is Tennessee.

Read the story at:

http://wvgazette.com/News/201003160898

Chief Medical Examiner Fired After Drug Charges

If you have cases in which you planned to call Bruce Levy as a witness, you may want to start looking for plan B!

Read about his arrest buying marijuana from an undercover officer at:

http://www.wsmv.com/news/22865407/detail.html

Worry time

Worry 1: TBI needs money. A bill has been proposed to set fees for blood and other type tests. In an article in the Tennessean it sounds like the back up plan is to shut down the Toxicology section.

Worry 2: In budget hearing the Department of Mental Health says they will substantially cut funding for alcohol and drug treatment.

Does it sound like these agencies are putting DUI prosecution and Treatment on the chopping block? Maybe it is all political theatre, maybe not. We will find out soon.

Another Day at the Legislature

I spent another afternoon in the Legislature waiting to see if propasals affecting DUI would be voted on and whether I would need to testify. Most were not. The Ignition Interlock bill that applies to .15 B.A.C. offenders, who apply for an ignition interlock was passed in the Senate Judiciary Committee.
Judge Strand of Jefferson County testified about a bill concerning the use of Substitute Judges, which sounded like it was well thought out and helpful. Either side would have the option to continue the case, until the elected Judge is present. The Bill is HB 3586. See it at: http://www.capitol.tn.gov/Bills/106/Bill/HB3586.pdf

My blood began to boil when 3 members of the House Judiciary Committee spoke very poorly of Prosecutors when considering a proposal by Rep. Eddie Bass, that would have sworn citizen warrants against law enforcement officers reviewed by the District Attorney before process would be issued. These legislators appararently think we would conspire with officers to bury valid complaints. The bill, HB 3053, passed 7-4 in the House Judiciary Committee. The Prosecutor discussion is during the last 5 minutes or so. When you hit the link, go to the bill 3053 on the list on the left of the page.
Watch the video for yourself at: http://tnga.granicus.com/MediaPlayer.php?view_id=33&clip_id=2608

Tuesday, March 16, 2010

Chattanooga Billards Club sued over hit and run

A lawsuit has been filed in a case in which the hit and run driver was charged with vehicular homicide by intoxication. The allegations in the lawsuit, if proven, could make the criminal trial very interesting. The lawsuit claims that the bar allowed a free flow of alcohol to it's employees after hours and that the driver got off work at 3:00 a.m., but stayed and drank for hours before killing a pedestrian at 7:00 a.m.

Read about this and more stories concerning dram shop actions at:

http://www.justicenewsflash.com/

Monday, March 15, 2010

Convictions Affirmed March 8th

Case Name ------------------Prosecutor---------------------Top Charge

State v Burkhart George Ionnides DUI
http://www.tsc.state.tn.us/OPINIONS/Tcca/cc1qtr2010.shtml

State v Mooneyham Ron Blanton Rape of a child
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Stacey%20N%20Mooneyhan.pdf

State v Rucker Michael Randles Poss <.5 cocaine to sell
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Melvin%20Pearson%20Rucker.pdf

State v Justice Wes King poss >.5 cocaine for sale
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Gregory%20Lamour%20Justice.pdf

State v Sevier Dean Decandia felony murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Deangelo%20Sevier.pdf

State v Winkfield Shaun Brown 2nd degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Samuel%20A%20Winkfield.pdf

State v McCoy Dan Runde Attemped 2nd degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Brandon%20McCoy.pdf

State v Gilliam Dean Decandia Theft over $1,000
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Corey%20Gilliam.pdf

HOUSE BILL PASSES 93-0

HB 3280 HAS PASSED THE HOUSE BY A VOTE OF 93-0 AND IS HEADED TO THE SENATE.

SECTION 1. Tennessee Code Annotated, Section 55-10-401(a)(1) is amended byBdeleting the language “narcotic drug, or drug producing stimulating effects on” and substituting instead the language “drug, substance or combination thereof, affecting”.

SECTION 2. This act shall take effect January 1, 2011, the public welfare requiring it.

DUI and city limit

In a case from Sevierville, the Court of Criminal Appeals has confirmed a DUI conviction in which the city officer continued observing a car and pulled it over 6 tenths of a mile beyond the city limit.
This is different from a fresh pursuit case, which has it's own jurisdictional case law. In this one Officer Stone had seen some lane violations and some speeding in the city, but did not pull it over until it crossed the fog line outside the city. The Court found that a city officer has a mile boundary area that is within his jurisdiction in a violation of general law. By statute this does not apply to speeding. Congratulations to prosecutor George Ioannides

. Read the case at:
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Suzanne%20Burkhart.pdf

Thursday, March 11, 2010

Doctor death inspires poetry

There once was a doctor who killed.
Too much blood was spilled.
In a pool did lay his wife and her mom.
Vanquished by a flying lead bomb.

Second degree murder was his plea.
5 years in prison, a cup of tea.
Mercy was granted.
leniency.

Hippocrates called.
He was healing again.
Passing out painkillers
to all his friends.

Arrested again with a second wife.
Supplying drugs when the price is right.
He wants to practice medicine some more.
I think it's time we lock the door.


Read the story at:
http://www.timesnews.net/article.php?id=9021271

DRE class

The 7th Tennessee Drug Recognition Evaluation (DRE) class is going on in Clarksville until May 19th. There are nineteen students. The class is intense and demanding. After 10 eight hour days of study, the officers will complete a 6-8 hour final exam. If they pass the exam, they move on to complete 12 drug evaluations under the supervision of an instructor. They must correctly identify the drug categories of the person they test to continue toward certification. Be proud of these officers. They are amazing, intelligent, determined people, who will be a great asset to us as we try to save more lives on our roads.

Tuesday, March 9, 2010

Wine Sales in grocery stores

Recently the Tennessean has included editorial pieces from both sides of the discussion about legislation to permit wine sales in grocery stores. How do you feel about it? Please vote in the new poll.


http://www.tennessean.com/article/20100309/OPINION01/3090317

http://www.tennessean.com/article/20100309/OPINION01/3090318/Editorial-Wine-law-unfair-to-grocers

Monday, March 8, 2010

Don't shave and drive

If I had not read it myself, I would not beleive it. Go to: http://keysnews.com/node/21349
to read about a woman who caused a crash while shaving her bikini area while driving. Her husband in the passenger seat took care of the steering during the shave. She was preparing to meet her boyfriend and wanted to be ready!

There are so many things wrong with this picture!

First Impressions

video

Friday, March 5, 2010

Night Time seat belt violators are likely felons

In Washington State, the Safety Commission sponsored night time seat programs in 2008 and 2009. Most traffic fatalities without seat belt use happen at night, so it was a way to attack that problem. The programs were extremely successful. More information about them will be contained in our next newsletter.

In the meantime....they compared the criminal histories of 3,000 people who received a night time seat belt ticket during the enforcement programs to 3,000 random drivers who did not.

Those with the seat belt violations were five hundred (500) times more likely to have a felony record.

What's this mean? For officers, be careful with these offenders! Many have violent criminal histories. Some may have pending arrest warrants.

For prosecutors and judges, there may be more than meets the eye with the $10 seat belt ticket!

Trial Convictions affirmed March 5, 2010

Case Name --------Prosecutor(s)--------------Top Charge

State v Horton - Ray Lepone and Reggie Henderson --2nd Degree Murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Antoinette%20Horton.pdf

State v Whitaker-----Beth Willis----------------Failure to Appear
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Mark%20W%20Whittaker.pdf

State v Milam-------Doug Dicus---------------First Degree Murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Brian%20Milam.pdf

State v Ramos------Sharon Reddick------------ Aggravated Child Rape
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Jesus%20Baltazar%20Ramos%20aka%20Enrique%20Ruano%20Diaz.pdf

State v Brown-------????????------------------DUI 2nd offense
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Richard%20E%20Brown%20Jr.pdf

State v Young------Leticia Alexander-----------Aggravated Burglary
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Johnny%20Bernosa%20Young.pdf

State v Watkins-----David Durham-------------Aggravated Child Abuse
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Nigel%20Kavic%20Watkins.pdf

State v Black-------Deborah Housel and Roger Moore--Aggravated Rape
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Christopher%20M%20Black.pdf

State v Fulmer----- Authur Bieber--------------Aggravated Rape
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/A01/State%20v%20Anthony%20M%20Fulmer.pdf

Thursday, March 4, 2010

Regional Law Enforcement Liaison Conference

We have an awesome LEL program in Tennessee. If you need contact info for your LEL, let us know. These men and women are real problem solvers and make good things happen in our State. Richard Holt, Scott Deihl, Clint Shrum and Steve Dillard were in attendance at the regional meeting in Charleston this week. If you are a prosecutor and feel any department in your area is in need of training, the LEL's can help make it happen. E-mail Tom or Jim, if you want us to help get you what you need.

Monday, March 1, 2010

Senate Judiciary Committee Tuesday March 2nd

Scheduled in the Senate Judiciary committee is the bill that already passed the House and is sponsored by the chairperson. Senator Beavers:

SECTION 1. Tennessee Code Annotated, Section 55-10-403(a)(3), is amended by
adding the following language at the end of the subdivision: For purposes of this section, the arrest precipitating the instant conviction shall toll the running of the ten (10) years and twenty (20) years with regard to the instant conviction.

House Judiciary Committee Tuesday March 2nd

Tomorrow the House Judiciary Committee is scheduled to discuss the repeat DUI offender bond provision proposed by Chairman Coleman. You can read it at:

http://www.capitol.tn.gov/Bills/106/Bill/HB3281.pdf


Hearings in the committee are web cast live at 3:00 CST at:http://wapp.capitol.tn.gov/apps/schedule/

Refusal to Test

At the New Prosecutor's Training Academy last week it became apparent that some prosecutors are not aware of the significance of blood or breath test refusals.

Please share with all your Sessions Court Prosecutors and Judges, who may not see jury instructions often, the jury instruction at T.P.I. Crim 38.04 "Driving under the influence: Refusal of Test" It is the statement of law read to jurors and states with clarity Tennessee law.

It states:" If you find from the proof that the defendant was offered and refused to submit to a test for the purposes of determining the alcohol or drug content of his/her blood and that the law enforcement officer advised the defendant that the refusal to submit to such a test will result in the suspension of his/her operator's license, then such refusal is not sufficient standing alone and by itself to establish the guilt of the defendant, but it is a fact which, if proved, may be considered by you in light of all the other provided facts in deciding whether the defendant is guilty or not guilty. The weight to which such a circumstance is entitled and whether or not such conduct shows a consciousness of guilt are matters for your determination."

In every case the refusal should be used as evidence of consciousness of guilt. Failure to use this evidence is ridiculous. Is there any legitimate reason for a person to surrender a driver's license for a year other than to avoid having a B.A.C. reading that could be used to prove guilt.
If someone is ready to trade his/her operator's license to avoid a needle, he/she is in need of immediate psychiatric help! Apparently, this was not clear to some prosecutors last week. Please get the word out to your colleagues! Thanks, Tom Kimball