NEW Tennessee Supreme Court Crawford decision

We granted this appeal to determine whether the admission into evidence of an automobile license tag number observed and written down by a bystander near the crime scene who did not appear at trial violated the defendant’s right to confrontation under the federal and state constitutions. A few seconds after being robbed at her place of employment, the victim ran out of the business, told a bystander that she had been robbed, and asked the bystander to observe the tag number of the vehicle operated by the man who had just left the business.
The bystander did so and then came inside the store to write the number down for the victim. The victim added other descriptive information about the robber to the same piece of paper and then turned it over to the police. The tag number was traced to a vehicle owned by the defendant, whom a jury ultimately convicted of one count of robbery. The Court of Criminal Appeals reversed the conviction, holding that the written tag number was “testimonial hearsay” within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), and concluding that the statement’s admission was plain error. Based on our objective review of the circumstances surrounding the statement, we
conclude that the written tag number was “nontestimonial hearsay” that did not implicate the defendant’s right of confrontation and was admissible as an excited utterance. We reverse the judgment of the Court of Criminal Appeals and reinstate defendant’s conviction.
Read the full case at:
http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20State%20v%20Darrell%20Franklin%20OPN.pdf

Good News For Bikers

Motorcycle fatalities dropped last year for the first time in a decade. In Teneessee 31 fewer bikers died during the first nine months of 2009 than in 2008. There are plenty of possible reasons. Two are increased enforcement at the Tail of the Dragon, increased enforcement throughout the State, increased availablity of rider's education courses and the economy.

To read more, go to:
http://www.ghsa.org/html/publications/spotlight/index.html

DUI Treatment Courts

Dealing with repeat DUI offenders is frustrating. The more the offender repeats the crime, the more likely someone is going to die. One method of attacking the problem of repeat offendenses is the implementation of DUI Treatment Courts. Treatment Courts can make a great difference in the battle to stop recidivism.
Read the latest issue of the DWI Court Reporter at the link below. Let me know if you have an effective DUI Treatment Court in your jurisdiction, so I can give it some publicity in the DUI News.

http://www.dwicourts.org/resources/newsletter

Senate Judiciary Committee

This morning the Senate Judiciary committee passed a bill to change the definition of DUI at 55-10-401 and also a bill to freeze priors as of the date of arrest.

The bills passed are somewhat different than those that passed in the House, so we will find out soon what, if anything, becomes law.

New traffic safety cases

Two new decisions from the Court of Criminal Appeals that directly affect traffic safety have been released.

In State v Tart the CCA ruled that Tart, a habitual traffic offender was not worthy of probation for his 4 1/2 year sentence. See the decision at:
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Matthew%20I%20Tart.pdf

In State v Dansby, the traffic stop was based on the failure of the driver to wear a seat belt. The defense on cross tried to create the possibility that the car did not have a shoulder harness and that the stop was not reasonable. The stop was upheld in:

http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Anthony%20Douglas%20Dansby.pdf

In State v Miller, the defendant was ordered to serve his 8 year sentence for vehicular assault after his second probation violation for failure to meet the conditions of probation.

http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Hyman%20E%20Miller.pdf

Australian Public Service Commercial

This Australian Public Service Announcement is more graphic than most commercials seen in the USA. If you are a family member of a victim, please don't watch this if it will cause you emotional harm.
For everyone else, this is not easy to watch, but should be seen.

News from the Legislature

Yesterday, the Senate Judiciary Committee passed the implied consent law discussed here previously. They removed a House amendment to the bill, so the two bodies will have to decide which bill will take precedence and become law. Either is fine. The main effect of the new law will be to move the implied consent violation to Sessions Court, unless the prosecutor wants to keep the DUI and implied consent together.
More will be posted when the conflict is resolved.

NHTSA Administrator David Strickland comments

Read the speech given by NHTSA Administrator David Strickland to the 28th Lifesavers convention here:

http://www.nhtsa.gov/staticfiles/DOT/NHTSA/NHTSA%20Administration/Presentations%20&%20Speeches/Associated%20Files/Strickland_2010_Lifesavers_0412.pdf

Trial Convictions Affirmed April 16th

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

State v Beason-------Tracy Tipton Jenkins-----Attempted 1st Degree Murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20John%20Tyler%20Beason.pdf

State v Smith--------Dean Decandia-----------Poss. Cocaine over .5 resale
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Elgy%20Smith.pdf

State v Vaughn-------Brett Gunn--------Marijuana for resale/school
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Antonio%20Vaughn.pdf

State v Anderson-----Damon Griffin-----1st Degree Murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Darrell%20Anderson.pdf

State v Pinson------Bob Gray------------Child Rape
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Joseph%20Pinson.pdf

State v Elliot-----John Zimmerman------Conspiracy, Possession 300 grams cocaine
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/ElliotBruceOPN.pdf

State v King------Jeff Burks---------Att 1st Degree murder
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/KingSCOPN.pdf

State v Hunt-----Ray Lepone & Paul Hagerman----1st Degree murder
http://www.tsc.state.tn.us/OPINIONS/TCCA/PDF/102/HuntVincentOPN.pdf

State v Phillips----Al Schmutzer---vehicular homicide by drag racing
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20David%20A%20Phillips.pdf

State v Duncan-----Brent Cooper-------Poss for resale cocaine over .5
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Quortez%20Deshawn%20Duncan.pdf

State v Green------Kent Chitwood------Poss for resale cocaine over 26 grams
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Flint%20Green.pdf

State v Cook-------Corliss Shaw-------Attempted 1st degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Anthony%20Cook.pdf

State v Lewis-----Colin Campbell-----Aggravated Robbery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Willie%20Lewis.pdf

Bond Bill passed Senate

Our DUI bond bill has now passed in both houses of the Tennessee General Assembly and will go the Governor for his signature. The effective date is January 1, 2011.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 40-11-118(a), is amended by adding the following at the end of the existing language: If the defendant has one or more prior convictions for
§ 55-10-401, § 39-13-106 or § 39-13-213(a)(2),
the defendant shall not be released unless the court first determines he or she is not a danger to the community.

The court may consider the use of monitoring devices to eliminate danger to the community including, but not limited to:
(1) Ignition Interlock devices;
(2) Transdermal monitoring devices or other alternative alcohol monitoring devices;
(3) Electronic monitoring with random alcohol or drug testing; or
(4) Pretrial residency in an in-patient alcohol or drug rehabilitation center.

SECTION 2. Tennessee Code Annotated, Section 40-11-148, is amended by designating the existing language as subsection
(a) and by adding the following as a new subsection:
(b) If a defendant has been admitted to and released on bail for a violation of
§ 55-10-401, § 39- 13-106 or § 39-13-213(a)(2) and commits any of those crimes after release,
he or she shall be considered a danger to the community. He or she shall not be released with another bail unless the court first determines he or she is no longer a danger to the community. The court may consider the use of monitoring devices to eliminate the danger posed including, but not limited to:
(1) Ignition Interlock devices;
(2) Transdermal monitoring devices or other alternative alcohol monitoring devices;
(3) Electronic monitoring with random alcohol or drug testing; or
(4) Pretrial residency in an in-patient alcohol or drug rehabilitation center.

SECTION 3. This act shall take effect January 1, 2011, the public welfare requiring it.

Attorney General opinion concerning warrants

The Attorney General has issued a new opinion concerning the Extent of Municipal Police Authority Beyond Municipal Limits.

It indicates that a city officer can serve a warrant anywhere in a county including other cities in the county. Read the opinion at: http://www.tn.gov/attorneygeneral/op/2010/op/op10-48.pdf

New DUI case Temporary Detention

In State v Richard, the Court of Criminal Appeals addressed the situation in which a person suspected of DUI is placed in the back seat of a patrol car, when an officer suspects DUI, but calls for a specialized officer to come and perform field sobriety tests. They ruled that the temporary detention is ok and is not a problem. Read the case at:

http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Harry%20Richard.pdf

Greeley Wells interview

See an interview with DA Greeley Wells concerning a case he handled as special prosecutor in Knoxville:

http://www.knoxnews.com/videos/detail/special-prosecutor-greeley-wells-explains-bill-loc/

Social Hosting law

I have received a couple requests about the new class A misdemeanor social hosting law, which went into effect July 1, 2009.
You can read it at:http://state.tn.us/sos/acts/106/pub/pc0564.pdf

It is in the TCA at: 39-15-404(a)

McMinn County High School Mock Crash

Congratulations to McMinn County for the amazing mock crash educational presentation yesterday. You can view what they did to emphasize driving safety at the link below. The actors and camera crews, officers, ambulance personnel and all involved made this scene look very real. Kudos also to Daily Post Athenian and McMinnonline for making this available.

BEWARE: GRAPHIC, DISTURBING CONTENT is in this video. Don't watch it if you are prone to nightmares or will be harmed by seeing teens acting as if they are injured or deceased!



http://www.mcminnonline.net/index.php?id=193

Moving products and people in Tennessee

Read an article by our Tennessee Department of Transportation Commissioner Gerald Nicely about the financial impact of our transportation system in the Dyersburg paper at:

http://www.stategazette.com/blogs/1450/

Keeping the roads safe and accident and crash free is not only neccessary for our safety, but also for our economy!

Protect and serve

Thanks to all law enforcement officers who have participated in child safety seat checks this year. Tennessee was first in the country to pass a mandatory child safety seat law years ago. Officers like the pictured trooper have been great partners with child safety seat advocates in making sure our little ones are protected in their seats.




The Tennessee Highway Patrol will be having a child safety seat checkpoint at Algood Middle School on Saturday from 9 a.m. until noon in conjunction with the Pass It On Children’s Consignment sale also going on at the school. Every child that gets their seat checked will receive a free class at Victory Sports Center. For more information, contact Tamara Brown at (931) 261-3174.

The most dangerous activity

I was saddened to read today that Michael A. Degener, 19, passed away when he drove off the roadway and hit a tree near Sharon, Tennessee. Traffic accidents are the leading cause of death for people between the ages of 16 and 34. I am sure that a large circle of family, friends and acquaintances will miss this young man deeply.

Please drive with the realization that driving or riding in a car is the most dangerous thing most people do on a daily basis. Rest in Peace Michael.

What do you do if a restricted license does not restrict?

A prosecutor has a problem. A judge issued a restricted license that was extremely broad. The judge ruled that the driver could not only drive to and from work, but could drive as a delivery truck driver all over the State at all hours. The language of a restricted license is:
TCA § 55-10-406 (c)(1)(A) "Going to and from and working at the person's regular place of employment". The order shall state with all practicable specificity the necessary time and places of permissible operation of a motor vehicle.

We appear to have no recourse. We can't appeal. Safety can't trump the judge. The court appears to have re-written the law for this delivery driver removing driving and time limitations.

Send your ideas for this prosecutor to my e-mail at tekimball@tndagc.org

Inhalant Abuse Study

Study reveals that an estimated 44,000 adolescents a day – many with underlying respiratory conditions – put their health and lives at risk by using inhalants.

If you have an inhalant case with a crash, you may want to obtain a copy of this study prior to your sentencing hearing. We have a lot of reasons to try and deter this behavior.

http://oas.samhsa.gov/2k10/175/175RespiratoryCond.cfm

Trial Court's Miranda ruling reversed

Defendant was stopped for speeding. The officer explained the citation and he signed it. The officer smelled alcohol and asked how much he had to drink. Sound like a typical DUI? In court, the trial Judge watched the video and decided to suppress the driver's statement as a violation of Miranda. The State appealed and the decision was reversed.
The Appellate Court cited well established Tennessee and federal law concerning this issue. The biggest surprise is that the trial court apparently did not know about Berkemer v McCarty, State v Snapp etc. The Court recited the language that most prosecutors can cite in their sleep:
“asking a modest number of questions and requesting the performance of sobriety tests at a location visible to passing motorists do not, by themselves, constitute treatment that can fairly be characterized as the functional equivalent of a formal arrest.”
Read the opinion at: http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/102/State%20v%20Andrew%20Hunter%20Heffel.pdf

Motocyclist critically injured

Motorcyclist critically injured, Woman charged with DUI

A young man was pushing his motorcycle that had run out of gas, when he was struck by the woman in the picture from behind. Her bond was set at $2,500.

Read the story at:
ttp://www.wkrn.com/global/story.asp?s=12270729st

Bond condition bill passes Senate Judiciary Committee

The bond condition bill that passed the House last week has passed unanimously in the Senate Judicary Committee. It will be before the full Senate next week.

Implied consent bill passes in House 95-0

Good news for Tennessee drivers. The bill which will permit the violation of implied consent to be determined in Sessions Court passed in the House of Represenatatives a few minutes ago. There was an amendment that does 2 things. 1) A D.A. can elect to keep the violation with the DUI and have it determined in Criminal Court, if he/she chooses to do so (and I can't imagine why a DA would want to do so) and 2) the DUI license revocation will be concurrent with the implied consent revocation, unless the driver has a conviction in the last five years for: a) a prior implied consent violation, b) underage DWI, c)open container or d) reckless driving, if the charged offense was a DUI.

The amended bill will be available on the website in the resources folder.

Rest in Peace Deputy Prichard

On April 6th, Deputy Chard Prichard died when he fell into a sinkhole in just outside of Standing Stone State Park.

He, another deputy, and two state park rangers, were investigating a cold case homicide in the area of Rocky Mountain Road when they came across the sinkhole. As Deputy Prichard attempted to get a closer look with his flashlight the ground around the sinkhole gave way and he fell approximately 160-feet to the bottom.

Rescue personnel responded to the scene and recovered his body several hours later.

Deputy Prichard had served as a deputy for only 2 1/2 months. He had previously served in the Overton County Jail. He is survived by his wife.

Web Site

Our new web site is on line! see it at http://dui.tndagc.org

The site is open to the public. We will be adding a "Members Only" section in a couple weeks. Tom

Baseball Season is here

Last night the Boston Red Sox beat the New York Yankees in the first major league game of the year. Watching baseball reminded me to tell you about a great charity, funded by Philadelphia Phillies pitcher, Jamie Moyer and the Moyer foundation. The charity is Camp Erin. There are many Camp Erins in the USA. They are week long bereavement/summer camps for children, who have lost a sibling or parent. I understand that discussions are underway to locate such a camp in Clarksville and Fort Campbell in the not so distant future.
Read about the work of the Moyer Foundation at: http://www.moyerfoundation.org/
and enjoy some baseball!

Bond conditions bill passes House

House Bill 3282 passed 98-0 this morning. It goes on now to the Senate Judiciary Committee. The bill imposes stricter bond requirements on multiple DUI offenders. You can read it at: http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HB3281

Trial Convictions Affirmed April 1, 2010

Case name ----------------Prosecutor---------------Top Charge

State v Dale----------Steve Sword-------Rape of a child
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Glyn%20Dale.pdf

State v Fortener-------Andrew Frieburg---------2nd degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Jonathan%20Fortener.pdf

State v Sapp------James Pope III----------Altering vehicle serial number
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Johnny%20L%20Sapp.pdf

State v Mahone-----Marsha Mitchell------Especially Agg robbery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Carlos%20Mahone.pdf

State v Hill------Al Schmutzer (pro-tem)---1st Degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Linda%20Diane%20Hill.pdf

State v Garcia---Rolf Hazelhurst----facilitation attempted 2nd degree murder
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Oscar%20Joe%20Garcia.pdf

State v Rucker----Damon Griffin-----especially agg robbery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Preston%20Rucker.pdf

State v Barnes and Watson---Colin Campbell---Agg Robbery
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20DAngelo%20Barnes%20and%20Monterrio%20Watson.pdf

State v Thomas --------Anna Banks Cash-------Underage DWI
http://www.tsc.state.tn.us/OPINIONS/Tcca/PDF/101/State%20v%20Jaroz%20Dantae%20Thomas.pdf