Drugged Driving Homicide case

Take 3 minutes to hear the story of the Case of the Week from the Lexington, Kentucky prosecutors on the Ray the DA website:


Office of the Fayette Commonwealth's Attorney » Case Of The Week: Drugged Driving Results In Homicide Charge And Prison Sentence

Witness Order

Clois Dean Asbury was convicted of DUI 7th offense, leaving the scene of a crash, and an implied consent violation. The case has some instruction for us as prosecutors. In this case the prosecuting officer was called as the fourth witness. As the prosecuting officer, he was not subject to the sequestration rule. The Court found this did not have a prejudicial effect, but the Attorney General conceded that failure to call the witness first was an error, although a harmless one. The Court in this case agrees.
The simple lesson is, if you choose to use the prosecuting witness subsequent to other witnesses, keep him/her out of the room, until he or she testifies. That should avoid the problem.
Read the case at:
http://www.tncourts.gov/sites/default/files/asburycloisdeanopn.pdf

New case: Traffic Stop

Morristown officer, Brad Rice, spotted a driver come to an abrupt stop at a stop light. The light had been red for a while. He decided to watch the car. It pulled into a parking lot and stayed for a minute, then pulled out at an excessive speed. The officer caught up and saw that the car was stopped in a driveway of a locked plant.

After officer Rice mad contact with the driver he discovered he was impaired. The defendant lost a motion to suppress, pled guilty and appealed. The conviction was affirmed in State v Barlow. Read the case at:
http://www.tncourts.gov/sites/default/files/barlowbenjaminopn_0.pdf

Another Defense Trick implodes

In a case issued Thursday, September 27th, the Court of Criminal Appeals removed a trick we have been dealing with for a couple years across the State.

Many prosecutors have dealt with this situation. A driver is arrested. The case lingers for a while in Sessions Court. The defendant waives his right to a preliminary and binds his case over to the grand jury. It takes a while for the case to come out of the Grand Jury. An Indictment is issued and it is more that a year from the date of the arrest. 

Defense attorneys then file a motion to dismiss the case, because the prosecution has not commenced within the one year statute of limitations.

Most Judges deny those motions, recognizing that the case was commenced in Sessions Court by the issuance of the warrant.

In State v Joyner, the CCA reverses the decision of a Trial Court, which bought the argument. Judge Wedemyer for the Court wrote:

"The trial court dismissed the charges finding that the State had not commenced prosecution before the expiration of the statute of limitations. After a thorough review of the record and relevant authorities, we conclude that the trial court improperly dismissed the charges because the Defendant waived his preliminary hearing and agreed to allow the case to be bound over to the grand jury before

the expiration of the statute of limitations."

Read the case at:

http://www.tncourts.gov/sites/default/files/joynerjdopn.pdf

New Case from Lincoln County

In Lincoln County Myron Webb committed his 6^th DUI offenses while on bond for his 5^th offense. After he pled guilty a sentencing hearing resulted in consecutive four-year sentences. During the sentencing hearing he asked to be sent to treatment, so that he could become a law-abiding citizen. During cross-examination by ADA Holly Eubanks, he admitted absconding from a halfway house and admitted he had made the promise to follow the law in a prior sentencing hearing. Since the defendant committed a felony while on bond for another felony, consecutive sentences were mandatory. The sentence was affirmed.

Motorcycles to the rescue

200 motorcyclists recently raised $530,000 for St. Jude Children's Hospital. They rode from Peoria to Memphis. The good people of Dyersburg, Tennessee, fed the riders and hosted them for a celebration.
Read about this good news and great dedication to a worthy cause at:
Dyersburg State Gazette: St. Jude Rides - Peoria - Memphis riders enter Dyersburg

3 more convictions affirmed

The Court of Criminal Appeals has issued 3 more opinions affirming DUI and Vehicular Assault convictions.
The first is State v Pollock can be seen at:
http://www.tncourts.gov/sites/default/files/pollocksteveopn.pdf

Pollock was convicted of vehicular assault. He tried to pass a car in a no passing zone and ran head on into a car severely injuring two people. Pollock had Soma, Methadone, Valium, and Xanax and Meprobamate in his blood. He admitted taking his prescribed dose of methadone.
This case includes an excellent analysis of the testimony of Dr. Tonya Horton, TBI special agent and forensic scientist and is highly recommended for all prosecutors dealing with drugged driving cases. 
Trooper Avery and Investigator Moore also did an outstanding job as did ADA Kelvin McAlpin in this case from Obion County.

The next case is a DUI from Hardin County, State v Hartnest. It can be found at:
http://www.tncourts.gov/sites/default/files/hartnestemmettopn.pdf

In this case the officer suffered a very bad day on the witness stand due to an incomplete and sketchy report. Despite his mediocre report there was enough evidence to sustain the conviciton. The defendant had a blood alcohol level of .13. He was stopped in part due to having a can of been on his back bumper as her drove slowly in Savanah. Trial Judge Creed McGinley commented that if you drive down the road with a beer on the bumper, you will be stopped ten out of ten times. My guess is that this case would have never resulted in a trial, but for the report.

The third new case is State v Barham. It is at:
http://www.tncourts.gov/sites/default/files/barhamrobertopn.pdf

Mr. Barham ran into a work van in a person's driveway. Jerry Morris in Jackson, Tennessee, had been sleeping when he heard the loud bang. He immediately went outside and found the defendant climbing out of the passenger side window. The defendant left and returned in the same clothes about five minutes later. The defendant used the old SODDI defense (Some other dude did it), but wasn't able to convince a single juror that Mr. Morris was wrong about what he saw.