Criminal Justice Section June 1997 Newsletter Articles

 

Victims’ Rights & the Constitution: Proceed with Caution
by William W. Taylor, III, Chair, ABA Section of Criminal Justice

Supreme Court Review

Letter to the Editor
By Linda K. Miller, Executive Director
Shelby County Government Victims Assistance Center

Trial Evidence and Procedure: Cross Examination of a Defendant’s Character Witness

Ethical Considerations When Representing a Juvenile Who Wishes to Be
Tried as an Adult
By William E. Robilio, University of Memphis, Cecil C. Humphreys School of Law, Child Advocacy Clinic

Article reprinted from Criminal Justice, Vol. II, No. 4, a publication of the American Bar Association
Criminal Justice Section

In the last edition of this column, I observed that election years tend to produce crime legislation that requires careful scrutiny. It may not be coincidental that former Senator Bob Dole’s call for a victims’ rights amendment to the United States Constitution, promptly followed by President Clinton’s, occurred in the course of a presidential campaign.
On the other hand, the victims’ rights issue is not new. Most states have adopted laws aimed at giving victims an expanded role in certain proceedings, particularly sentencings, and at least 20 states have adopted victims’ rights amendments to their constitutions.
The bipartisan support for a constitutional amendment assures that the issue will survive the campaign and that the 105th Congress will take up some form of a victims’ rights amendment in early 1997. The matter is a serious one, and its implications, both practical and symbolic, need to be debated carefully and without the burden of election year rhetoric. There are two fundamental questions. The first is, what laws, if any, are necessary to remedy systematic deficiencies in the treatment of victims by prosecutors and courts and to ensure that victims’ concerns are properly considered in criminal proceedings. The second is, assuming agreement on the first question, whether the Constitution is an obstacle to implementing any of those measures. These are not easy questions, and reasonable people from all parts of the adversary system have different views about them.
As I explain, however, the better view, and one which I share, is that fair and sensitive treatment for victims and their families in criminal cases does not require amending the Constitution, and that proposals to do so are unworkable and unwise.
The language of the amendment proposed in the Senate (S.J. Res. 65) is as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid for all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
Section 1. Victims of crimes of violence and other crimes that Congress and the States may define by law pursuant to section 3, shall have the rights to notice of and not to be excluded from all public proceedings relating to the crime; to be heard if present and to submit a statement at a public pretrial or trial proceeding to determine a release from custody, an acceptance of a negotiated plea, or a sentence; to these rights at a parole proceeding to the extent they are afforded to the convicted offender; to notice of a release pursuant to a public or parole
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proceeding or an escape; to a final disposition free from unreasonable delay; to an order of restitution from the convicted offender; to have the safety of the victim considered in determining a release from custody; and to notice of the rights established by this article.
Section 2. The victim shall have standing to assert the rights established by this article; however, nothing in this article shall provide grounds for the victim to challenge a charging decision or a conviction, obtain a stay or trial, or compel a new trial; nor shall anything in this article give rise to a claim of damages against the United States, a State, a political subdivision, or a public official nor shall anything in this article provide grounds for the accused or convicted offender to obtain any form of relief.
Section 3. The Congress and the States shall have the power to enforce this article within their respective federal and state jurisdictions by appropriate legislation, including the power to enact exceptions when required for compelling reasons of public safety.
Section 4. The rights established by this article shall be applicable to all proceedings occurring after ratification of this article.
Section 5. The rights established by this article shall apply in all federal, state, military and juvenile justice proceedings, and shall also apply to victims in the District of Columbia, and any commonwealth, territory or possession of the United States.

The administration’s proposal to the 105th Congress will not be identical to this one, but it is likely to contain many, if not all, of the same specific rights for victims. In his testimony before the House Committee on the Judiciary, Associate Attorney General John Schmidt said that the administration supports an amendment that provides victims with the following:
l the right to notice of public court pro- ceedings and not be excluded from them;
l the right to make a statement to the court about bail, sentencing, and the acceptance of a negotiated plea;
l to notice of parole hearings and to attend and speak at those hearings;
l to notice of a defendant’s release or escape;
l the right to restitution;
l the right to reasonable conditions of confinement and release to protect the victim from the defendant;
l to notice of all these rights.
We can be sure, therefore, that the proposed amendment will seek to accord a constitutionally protected status in proceedings between the state and the accused to third parties, albeit sympathetic ones, and to guarantee to those parties certain specific rights in every case (at least every case involving a violent crime). Since it will apply to state as well as federal courts, it will create a category of federal rights that state courts must respect. As many commentators have noted, its impact will be felt most intensely by those over-burdened state and local courts and prosecutors who are responsible for 95 percent of the criminal prosecutions in this country.
Amending the Constitution is, of course, serious business. It is fair to ask why, after more than 200 years, a constitutional amendment is necessary to effectuate any of the specific measures that the proponents of the amendment support. Put another way, is the debate over the necessity and wisdom of those measures, or is it a symbolic expression of the popular sentiment that in criminal trials defendants have rights and victims have none? One answer to these questions may lie in the advocacy of those who believe that the system must be fundamentally reformed and become "victim" oriented.
Professor George Fletcher of Columbia University Law School, proposes just such a reform in his 1995 book With Justice for Some: Victim’s Rights in Criminal Trials. He argues that the criminal justice system must be changed to satisfy each community’s demands for punishment. In Fletcher’s view, acquittals of the obviously guilty "betray the trust that enables people to live together in peaceful interdependence." He says, "When a crime is left unsanctioned, the government - and all of us responsible for the government - become complicitous in the evil. The victim’s blood is on our hands." This is strong rhetoric, but like most demagoguery about crime, in a popularity contest with the Bill of Rights, it might get a lot of votes.
In his thoughtful review of Fletcher's book, Professor Robert Mosteller of Duke University takes the author to task for his views as well as his scholarship. As Mosteller observes, Fletcher’s embrace of victims’ rights "produces a new presumption that the alleged victim suffered at the defendant’s hands, and thus has a special right to affect the determination of guilt." (109 Harv. L. Rev. 487 (1995).)
Mosteller and others point out that a criminal trial is not a contest between the victim and the defendant in which the one loses and the other wins. It is certainly not the case that erroneous acquittal of the guilty leaves blood on all our hands. Nor is it accurate to say that because victims are not parties in criminal cases, they have no rights. The expenditure of public funds on law enforcement, lawyers, and prisons relieves us all from the individual burdens on time and resources that pri-
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vate redress would require. It is in the public interest that the criminal justice system address the impact of a crime on the victim and the victim’s needs for personal safety. Public prosecutions vindicate the rights of all of us, including those who become victims, to live under the rule of law. Giving victims notice of
proceedings - particularly those relating to release - and entertaining their views on matters such as release and punishment, and considering danger in fashioning conditions of release, are not, in my view, controversial. The criminal justice system does not have obligations to victims of crime, as well as to the communities in which the victims live and the crimes occur. Considering victims’ views and their safety is consistent with those obligations. Chief Justice Burger, writing for the plurality in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), observed that "[c]ivilized societies withdraw both from the victim and the vigilante enforcement of the criminal laws, but they cannot erase from people’s consciousness the fundamental natural yearning to see justice done - or even the urge for retribution." (Id. at 571.)
To the extent that the system does not produce justice, and the appearance of it, in the vast majority of cases, it risks losing the very legitimacy that permits it to withdraw enforcement of the law from private hands. Attention to the needs and interests of victims and their families is, therefore, manifestly appropriate and necessary. It is an entirely different matter, however, to write into the Constitution a list of "rights" that a category of interested citizens, whose status can itself depend upon an adjudication of the merits of the case, may enforce in criminal cases.
Fletcher and his followers would move us closer to systems in which prosecution of crime is a private matter, a model our jurisprudence abandoned long ago and for good reason. One of those reasons is that many among us could not afford to pursue private criminal sanctions against people who do us harm. Indeed, many will not be able to afford to participate in the type of proceedings that the amendment envisions. Whether they would have the right to appointed counsel is a separate and obviously troublesome problem.
But, more to the point, government control of prosecutions is desirable precisely because it eliminates, to the extent possible, the risk that private vengeance will affect charging decisions, adjudication of guilt, and punishment. Much of our procedural and even constitutional law is premised upon the confidence that public prosecutors will seek justice rather than vengeance. Our constitutional deference to prosecutorial charging discretion and to the privacy of the grand jury, as well as the practical deference given to positions taken by "the government" in a courtroom, derives from the basic idea that prosecutors representing "the people" have a different responsibility than does a lawyer representing a client. The adversaries in a criminal case are the people and the defendant; and while conviction and punishment of a guilty defendant result in a general sense that justice has been done to the victim as well, private justice is in that instance a consequence of public justice.
Proponents of the amendment, particularly spokespersons for the U.S. Department of Justice, do not acknowledge philosophical kinship with Fletcher. They argue that the amendment is intended to give victims "a voice - not a veto." Unfortunately, we find in the rhetoric of support for the victims’ rights amendment an appeal to those who want to move the adversary system toward a private justice model. The president said in his statement of support, "As long as the rights of the accused are protected, but the rights of victims are not, time and again, victims will lose." This sounds to me as if candidate Clinton was encouraging voters to believe that he saw a criminal trial as a contest between a victim and a defendant, a contest in which one of them will lose and the other will win. It might be good campaign rhetoric, but it is bad public policy. It feeds the notion, which I described in my previous column, that the criminal justice system, and the people who work in it, are somehow responsible for the violence on our streets.
The Judicial Conference of the United States has urged that Congress approach the proposed amendment "with utmost prudence and caution," observing that "such sweeping changes in our criminal justice system should not be accorded anything less that thorough, exhaustive deliberation." A host of highly respected law professors has joined in a formal letter to Congress opposing a victims’ amendment. They support the legislation in effect in all states and in federal law that is designed to assist victims and to respond to their proper concerns. They categorically reject the notion that the necessary support for victims’ rights can only occur by
amending the Constitution, and they also explain the predictable consequences of the current draft.
Giving victims "rights" to freedom from unreasonable delay, to restitution, and to safety - as the current draft does - has implications impossible to predict. If the rights are enforceable in the proceeding itself, one does not have
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to be hysterical to predict the potential for disruption. If the rights are not enforceable, then the reform is meaningless. And then, of course, there is the question of who is a victim and whether it is appropriate to grant rights to anyone before judicial determination that a crime has occurred and that a victim exists. Examples in recent memory of persons who perpetrated horrendous crimes and portrayed themselves as victims or relatives of victims remind us that a criminal trial remains the best and, indeed, the fairest means of testing allegations of guilt.
It will be extraordinarily difficult for members of Congress to oppose a victims’ rights amendment, certainly in this political climate, and it may be that, if given a chance to vote on it, a majority of Americans would vote in favor. Under these circumstances, it is important for lawyers to take responsibility and leadership. For although some of the proposed measures present only modest tinkering with a criminal trial, others have dramatic consequences. And, quite apart from the practical questions, enshrining victims’ rights in the Constitution bespeaks a rejection of a system in which all the people have a stake and in which we believe our public goals are best served by pitting the people through their prosecutor against the defendant in a fair adversary process.
Thoughtful opponents of the victims’ rights amendment are not anti-victim or soft on crime. Their opposition proceeds from the fundamental view that the Constitution ought not be a billboard for the posting of notices of concern, and that political campaigns are the worst possible environment for serious discussion of constitutional reform.

Since publication of the last issue of Criminal Law, the Tennessee Supreme Court has rendered opinions in the following cases related to criminal law:

Sex Offenses; Bill of Particulars; Election of Offenses:
State v. Speck, 944 S.W.2d 598 (Tenn. 1997)
Allowing state to elect an offense which allegedly occurred on a date other than the specific date mentioned in a bill of particulars did not prejudice the defendant. Admission of "fresh complaint" evidence was error, but harmless.
Sentencing; Enhancement Factors; Particular Vulnerability:
State v. Poole, 945 S.W.2d 93 (Tenn. 1997)
The state cannot rely on age alone to establish "particular vulnerability." All enhancement factors must meet the test of being "appropriate for the offense."
Plea Bargain; Negotiating Classification or Release Eligibility:
Hicks v. State, 945 S.W.2d 706 (Tenn. 1997)
A knowing and voluntary guilty plea waives any irregularity as to offender classification or release eligibility. A plea bargained Range II sentence (10 years), with Range I release eligibility (30%) is valid.
Searches; Road Blocks:
State v. Downey, 945 S.W.2d 102 (Tenn. 1997)
DUI sobriety roadblock can be reasonable seizure under State Constitution provided it is established and operated in accordance with predetermined operational guidelines and supervisory authority.
Defenses; Renunciation:
State v. Jackson, 946 S.W.2d 329 (Tenn. Crim. App. 1996)
In the case of affirmative defenses such as renunciation, the burden of raising the defense rests with the defendant. Here, the defendant properly raised the defense, but the State negated the renunciation beyond a reasonable doubt. Concurring opinion would limit renunciation defense only to situations where the crime is abandoned before any harm befalls the victim.
Probation Revocation; Lab Reports:
State v. Gregory, 946 S.W.2d 829 (Tenn. Crim. App. 1997)
State v. Wade, 863 S.W.2d 406 (Tenn. 1993) held that the state could not revoke probation based upon an unidentified lab report admitted into evidence without a finding of good cause as to the absence of the lab technician and proof of reliability of the test. This case spells out how the state can show good cause and reliability by affidavit.
Death Penalty; Post-Conviction:
Harris v. State, 947 S.W.2d 156 (Tenn. Crim. App. 1996)
Good summary of general post-conviction rules and standards of review; offering no mitigation evidence, other than defendant’s testimony, is not always ineffective assistance, however, a strategy of silence must be based on a reasonable investigation for mitigating evidence; the decision not to investigate a defendant’s family childhood background may be a tactical choice; evidence of deprived and abusive childhood is entitled to little weight; Mack Brown is not to be applied retroactively; no Middlebrooks error if Defendant is convicted of both deliberate and felony murder; no problem with sequential jury instructions.
Double Jeopardy; Multiple Convictions:
State v. Green, 947 S.W.2d 186 (Tenn. Crim. App. 1997)
Convictions for driving on a revoked license and habitual traffic offender arising from single episode cannot withstand Tennessee double jeopardy test.
Self-Incrimination; Right to Counsel; Mental Examinations:
State v. Martin, 950 S.W.2d 20 (Tenn. 1997).
Where a defendant asserts a mental state defense, a court-ordered mental evaluation does not violate self-incrimination provided any statements made during the evaluation, and any "fruits" derived from such statements, are used by the prosecution only for impeachment or rebuttal of the evidence concerning mental state introduced by the defendant. Defendant does not have a right to counsel during the evaluation itself.
Criminal Responsibility:
State v. Carson, 950 S.W.2d 951 (Tenn. 1997).
Common law rule (that a defendant who aids and abets a co-defendant in the commission of a criminal act is liable not only for that crime but also for any other crime committed by the co-defendant as a natural and probable consequence of the crime originally aided and abetted) is still viable under TENN. CODE ANN. § 39-11-401 and 402.
Post-Conviction, Motion to Reopen, Appellate Review:
Fletcher v. State, 951 S.W.2d 378 (Tenn. 1997).
Supreme Court has jurisdiction to review the denial of a Motion to Reopen a post-conviction petition under T.R.A.P. 11.
Double Jeopardy, Multiple Punishment:
State v. Pennington, 952 S.W.2d 420 (Tenn. 1997).
Post-arrest detention of a defendant pursuant to a policy which requires persons charged with DWI to be detained in custody for 12 hours upon their refusal to submit to a breath-alcohol test does not constitute punishment which prevents, under double jeopardy principles, a conviction and punishment for the DWI.
POST-CONVICTION, STATUTE OF LIMITATIONS:
Carter v. State, 952 S.W.2d 417 (Tenn. 1997).
Post-Conviction Procedure Act of 1995 does not provide additional time to file post-conviction for petitioners whose previous three-year statute of limitations has expired.
COMMUTATION POWER OF GOVERNOR:
Carroll v. Raney, 953 S.W.2d 657 (Tenn. 1997).
Defendant was not entitled to Habeas Corpus on the theory that his commuted sentence had expired prior to being revoked by the Governor. Defendant was sentenced to death in 1962. In 1972, Governor Dunn commuted the sentence to "22 years to life." This sentence was not possible for the offense at the time, so the defendant argued that it should be treated as a 22 year sentence which had expired prior to its revocation by the Governor. Supreme Court reviews pardon and commutation powers of Governor and concludes that Governor can commute to any sentence less than imposed sentence regardless of whether the sentence as commuted would be appropriate for a court to impose.
PROOF OF PRIOR BAD ACTS:
State v. Dubose, 953 S.W.2d 649 (Tenn. 1997).
Strict requirements of Tenn. R. Evid. 404(b) do not apply to testimony of prior injuries inflicted upon a child victim when the injuries are not explicitly attributed to the defendant. Testimony of prior suspected abuse explicitly attributed to the defendant did meet the test of Rule 404(b) by showing that the abuse was committed "knowingly" and not by "accidental means." Strong dissent from Justice Birch.
HEARSAY EXCEPTIONS, EXCITED UTTERANCE, MEDICAL DIAGNOSIS:
State v. Gordan, 952 S.W.2d 817 (Tenn. 1997).
Child victim’s painful urination was a sufficiently serious and startling event to qualify her statement identifying the victim as an excited utterance under Tenn. R. Evid. 803(2). Sufficient foundation was established to show that child victim’s statements to a child psychologist were made for the purposes of diagnosis and treatment under Tenn. R. Evid. 803(4).
SCIENTIFIC EVIDENCE, STANDARDS FOR ADMISSIBILITY:
McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997).
Standard for the admissibility of scientific evidence in Tennessee Courts. While Court does not expressly adopt Daubert, it comes close. Courts should consider five factors in determining reliability of scientific evidence: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation.
EXPERT TESTIMONY, ULTIMATE ISSUE, SUSCEPTIBILITY TO ENTRAPMENT:
State v. Shuck, 953 S.W.2d 663 (Tenn. 1997).
Trial court abused its discretion by excluding expert testimony about the defendant’s unique susceptibility to inducement on the sole basis that the expert testimony expressed an opinion on an ultimate issue. Good discussion of entrapment defense, admissibility of expert testimony, and appellate review under abuse of discretion standard.
FALSE REPORTING, STATUTORY CONSTRUCTION:
State v. Levandowski, 955 S.W.2d 603 (Tenn. 1997).
False report statute [T.C.A. § 39-16-502(a)(1)] only applies to statements volunteered or initiated by an individual. It does not apply to statements in response to questioning. Good case on statutory construction.
HGN, SCIENTIFIC EVIDENCE, EXPERT WITNESS:
Sate v. Murphy, 953 S.W.2d 200 (Tenn. 1997).
Horizontal Gaze Nystagmus (HGN) sobriety test is a scientific test which is admissible into evidence if offered by an expert witness and the requirements of Tenn. R. Evid. 702 and 703, and McDaniel v. CSX are satisfied.
RAPE SHIELD, EVIDENCE:
State v. Sheline, 955 S.W.2d 42 (Tenn. 1997).
Every woman who has sexual relations with a man she meets in a bar is not engaging in "distinctive" sexual behavior which would justify an exception to the Rape Shield Law contained in Rule 412, Tennessee Rules of Evidence.
DEATH PENALTY, MIDDLEBROOKS EXCEPTION:
James David Carter v. State, No. 03-S01-9612-00119 (Tenn. Oct. 20, 1997).

Middlebrooks not violated when a general verdict of guilt is returned on a one-count indictment which alleges both common law and felony murder.
INDICTMENTS, CULPABLE MENTAL STATE:
State v. Hill, 954 S.W.2d 725 (Tenn. 1997).
Failure to allege a mens rea (culpable mental state) in an indictment charging rape does not automatically constitute a fatal defect rendering the indictment void. For offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment will be sufficient if it is in proper form, provides constitutional notice, and would prevent double jeopardy.
DNA, PCR, SCIENTIFIC EVIDENCE:
State v. Begley, 956 S.W.2d 471 (Tenn. 1997).
Polymerase chain reaction (PCR) method is exempt from judicial determination of reliability under McDaniel v. CSX by virtue of T.C.A. § 24-7-117(a). Good discussion of DNA and normal requirements for admission of scientific evidence.
PAROLE, ALCOHOLICS ANONYMOUS, FIRST AMENDMENT
Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478 (Tenn. 1997).
An inmate was denied parole so that he could continue to receive the benefit of an AA program. Since AA is a religious program, required participation in it violates the Establishment Clause of the First Amendment. An inmate’s participation or nonparticipation in an AA program may not be considered by the Parole Board in deciding whether to grant or deny parole.
SPEEDY TRIAL, PRE-INDICTMENT DELAY, DUE PROCESS:
State v. Utley, 956 S.W.2d 489 (Tenn. 1997).
The right to a speedy trial is not triggered by the issuance of an arrest warrant. Speedy trial rights are not implicated until the accused has been actually restrained by an arrest or charged by formal grand jury action. A delay of 5_ years from the issuance of an arrest warrant to trial does not violate speedy trial rights in that defendant was tried within 8 months of his actual arrest on the warrant. However, case is remanded to the trial court to consider whether the pre-indictment delay violated due process.
HEARSAY, STATEMENT FOR MEDICAL DIAGNOSIS:
State v. Gary Stinnett, No. 03-S-01-9512-CC-00133 (Tenn. Nov. 17, 1997).
In determining whether a child’s statement to a physician concerning a sexual crime and the perpetrator was made for the purposes of diagnosis and treatment and admissible under TENN. R. EVID. 803(4), the court should consider the totality of the circumstances relating to the giving of the statement.
DIVERSION, PROCEDURE FOR CONTESTING FACTS:
State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997).
District Attorney has a duty to disclose in the record the factual basis and rationale for denying diversion. If, on writ of certiorari, defendant contests the facts upon which the D.A. relied, the trial court should hold an evidentiary hearing to resolve the factual dispute. The trial court should not consider any evidence shown to be materially false or obtained in violation of constitutional rights.
TERRY STOP:
State v. Wayne Lee Yeargan, No. 01S01-9604-CC-00080 (Tenn. Nov. 24, 1997).
Officer’s decision to stop was based upon reasonable suspicion supported by specific and articulable facts that the defendant was driving on a revoked license when the officer, six months earlier, had arrested the defendant for driving under the influence of an intoxicant and had been present in court when the defendant was convicted of that offense and his driver’s license revoked for one year.
DEATH PENALTY, PROPORTIONALITY REVIEW, HAC:
State v. Andre S. Bland, No. 02-S01-9603-CR-00032 (Tenn. Dec. 1, 1997).
Precedent-seeking approach to comparative proportionality review and factors relevant to the approach adopted. Death sentence is not disproportionate unless the case, taken as a whole, is plainly lacking in circumstances consistent with those where the death penalty has been imposed. Only purpose is to identify and invalidate an aberrant death sentence. Universe of cases only includes cases where death sentencing hearing occurred. Appellate briefs must fully address this issue specifically identifying similar cases relevant to the analysis. Court will create CD-Rom death penalty database. Sufficient evidence of torture based upon circumstances where unarmed victim chased and repeatedly shot in leg causing painful injuries.
DEATH PENALTY, HAC, PLEA BARGAINS:
State v. Glenn Bernard Mann, No. 02-S01-9609-CC-00077 (Tenn. Dec. 8, 1997).
Fact that State makes an offer to settle the case with a sentence less than death does not preclude the State from seeking the death penalty when the offer is rejected by the defendant. Sufficient evidence of torture and serious physical abuse based on over 40 wounds, digital rape, and strangulation while victim conscious. Sentence not disproportionate under Bland criteria.
DEATH PENALTY, POST-CONVICTION, DUTY TO INVESTIGATE MITIGATION:
Steve Henley v. State, No. 01S01-9703-CC-00056 (Tenn. Dec. 15, 1997).
Proof does not preponderate against trial court’s finding that petitioner suffered no prejudice from trial counsel’s failure to investigate and prepare mitigation phase witnesses as any additional mitigation evidence would have been merely cumulative, offered by witnesses with a limited relationship with petitioner, and aggravating circumstance was strong. Counsel was not ineffective in failing to investigate mental condition and request mental evaluation of defendant as mental evidence would have been inconsistent with the guilt phase defense theory and inconsistent with defendant’s trial testimony. Dissent by Reid and Birch.
DEFENSES, DIMINISHED CAPACITY; DEATH PENALTY, DOUBLE COUNTING:
State v. Leroy Hall, Jr., No. 03-S01-9701-CR-00010 (Tenn. Dec. 15, 1997).
"Diminished capacity" is not a defense, but expert testimony is relevant to show that because of a mental disease or defect a defendant lacked the capacity to form a culpable mental state. Evidence in present case does not meet this standard. Middlebrooks does not embrace a broad prohibition against "double counting" in the sense that it does not prevent the same evidence from being used to establish more than one aggravating circumstance. The failure to charge defendant’s special requests relating to non-statutory mitigating circumstances was harmless.
KIDNAPING, DOUBLE JEOPARDY, MULTIPLE CONVICTIONS FROM ONE EPISODE:
State v. Ricky Michael Dixon, No. 03S01-9704-CR-00043 (Tenn. Dec. 15, 1997).
Any restraint in addition to that which is necessary to consumate rape or robbery may support a separate conviction for kidnaping. The due process principles and test of State v. Anthony are still valid. Dragging the victim after initial assault 30 or 40 feet to a more secluded location to avoid detection exceeded the restraint necessary to consumate the attempted sexual battery. Dissent by Reid and Birch.
ELECTION OF OFFENSES; SENTENCING, PARTICULAR VULNERABILITY:
State v. David E. Walton, Jr., No. 02-S-01-9606-CC-00052 (Tenn. Dec. 22, 1997).
Convictions for aggravated rape, aggravated sexual battery, and incest must be reversed where state failed to present evidence of dates or order of occurrence of multiple sexual encounters, did not elect which of the numerous types of sexual acts it relied upon to establish the convictions, and failed to present evidence which narrowed the multiple incidents by asking the child victim to relate incidents by specific month, memorable occasion, or special event. Convictions for aggravated rape and aggravated sexual battery from one incident implicate double jeopardy concerns. Age alone does not establish "particular vulnerability." Court must consider factors set forth in State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
STATE MAY SEEK DEATH PENALTY AFTER REVERSAL OF LIFE SENTENCE:
State v. David Willard Phipps, Jr., No. 02-S01-9607-00068 (Tenn. Dec. 22, 1997).
State may seek death penalty on retrial after reversal of conviction in which the state did not seek death penalty. However, state’s pursuit of death penalty following successful appeal of a conviction for which the death penalty originally was not sought gives rise to a rebuttable presumption of prosecutorial vindictiveness. Presumption may only be overcome by clear and convincing evidence which demonstrates that the prosecutor’s decision was motivated by a legitimate purpose. State must proffer fact specific, legitimate, on-the-record explanation for seeking the death penalty which dispels the appearance of vindictiveness. Court explains how State can meet this burden and remanded to trial court to give state the opportunity to do so.
PRE-ACCUSATORIAL DELAY; SENTENCE ENHANCEMENT, UNCHARGED CONDUCT:
State v. William Jeffery Carico, No. 03S01-9610-CR-0009 (Tenn. Dec. 29, 1997).
Factors to be considered in determining whether pre-accusatorial delay violates due process are the length of the delay, the reason for the delay, and the degree of prejudice. Child victim reported rape by step-father in 1985. Before district attorney was able to act, she recanted. In 1991 the victim renewed her allegation and prosecution was commenced. Although seven year delay from time sexual offense was reported to DHS and commencement of prosecution was excessive, due process was not violated because the delay was not caused by the State and the defense was not prejudiced. Sentence enhancement factor for prior "criminal behavior" includes prior acts of illegal sexual conduct for which there has been no conviction.
JURY TRIAL, ABSENCE OF JUROR; LESSER OFFENSES:
State v. Johnny Lee Cleveland, III, No. 03-S-01-9612-CR-00118 (Tenn. Dec. 29, 1997).
Absence of a juror during 20 minutes of closing argument was plain error, violated the fundamental right of trial by jury, and was not subject to harmless error analysis. Aggravated assault is not a lesser grade or lesser included offense of attempted aggravated rape.
DOUBLE JEOPARDY, MULTIPLE PUNISHMENTS FOR SAME OFFENSE:
State v. Roger Dale Lewis, No. 01-S-01-9611-CR-00227 (Tenn. Dec. 29, 1997).
Double jeopardy bars multiple convictions for aggravated arson of a single structure containing several apartment units.
PRETEXTUAL STOPS:
State v. Joe Vineyard et al., No. 03S01-9612-CR-00120 (Tenn. Dec. 29, 1997).
Vehicle stop based upon probable cause is valid under the Tennessee Constitution without regard to the subjective motivations of police officers. State constitution affords no greater protection than federal constitution on this issue. c.f. United States v. Whren, 116 S.Ct. 1769 (1996). Detective working on "drug interdiction" squad had anonymous tip that defendant would travel on I-75 with a load of marijuana in his truck. Detective spotted truck on Interstate and followed it for seven miles during which he observed three traffic violations before stop was made.
DOUBLE JEOPARDY, CONTEMPT:
State v. Billy O. Winningham, No. 01-S-01-9701-CC-00008 (Tenn. Dec. 29, 1997).
Separate proceedings and punishments for contempt and the criminal offense underlying the contempt do not violate double jeopardy principles under either the state or federal constitution.
TERRY STOP, PLAIN FEEL DOCTRINE:
State v. Ray Anthony Bridges, No. 02S01-9606-CC-00053 (Tenn. Dec. 31, 1997).
Although informant’s tip was not sufficiently corroborated or verified to justify a lawful arrest, it was sufficient to justify a stop and frisk of defendant. However, under the "plain feel" doctrine officer did not have probable cause to believe standard pill bottle felt during the frisk was contraband. Officer testified that he immediately recognized it as the kind used by crack dealers. Officer would have to be clairvoyant to know that contents of pill bottle were contraband. Officer’s subjective belief that an object is contraband is not sufficient unless it is objectively reasonable.
DEATH PENALTY, MIDDLEBROOKS, HARMLESS ERROR:
State v. Michael Joe Boyd, No. 02S01-9611-CR-00102 (Tenn. Jan. 5, 1998).
Middlebrooks error was harmless under the analysis set forth in State v. Howell, 868 S.W.2d 238 (Tenn. 1993) where the one remaining valid aggravating circumstance was a prior conviction for second degree murder. Strong dissent from J. Reid.

Imagine one night you are at home watching television. Your teenage daughter left the house earlier to see a movie with several friends. The phone rings. You are slightly irritated because you assume it is your daughter calling to ask to have her curfew extended. Instead, it is a police officer calling from county hospital telling you that your daughter was shot at point blank range while someone was attempting to steal her car. He calmly requests that you drive to the hospital as quickly as possible because your daughter is in critical condition and is not expected to survive. Fortunately, your daughter does survive, but requires reconstructive surgery, counseling and physical therapy. You call the prosecutor, only to find out he represents the state, not your daughter. Furthermore, the prosecutor, not your daughter, decides how the defendant is charged. Your daughter’s medical bills are enormous and are only partially covered by medical insurance causing your family to go deeply into debt. You take time off from work to attend the first court date only to find that the case has been continued. You, your daughter, and your entire family are subpoenaed as witnesses and are not allowed to attend the court proceedings. Meanwhile, the defendant has every imaginable relative supporting him throughout the trial. And, if this is not traumatic enough, you discover by reading the local newspaper that the prosecutor plea bargained to a misdemeanor. Repeatedly, your daughter’s calls are unanswered about her rights as an innocent victim. Why doesn’t she, like the defendant, have the right to be informed, present and heard?
The call for victims’ rights has continued ringing throughout the halls of Congress this year. A constitutional amendment that was introduced by Senators Kyl (R-AZ) and Feinstein (D-CA) guaranteeing victims the rights to be informed, present and heard is on its way to be the law of the land. The week of April 13 through April 19, 1997, marked the observance of National Crime Victims’ Rights Week. During this commemorative week, organizations that assist victims of crime joined together to promote greater public awareness about crime victims.
Victim organizations nationwide are helping to ensure that the voice of the victim is not overshadowed or forgotten. The theme of this year’s commemorative week is Let Victims’ Rights Ring Across America. Hopefully, the tune to which victims are treated will become an eloquent duet with defendants’ rights so that as the bells of justice toll, the scales of justice are balanced.
All states and the District of Columbia have enacted statutory provisions for crime victims. Forty-seven states have victims’ bills of rights on the books, and twenty-nine states have ratified constitutional amendments to guarantee victims’ rights. Victims, advocates and other supporters across the nation joined forces to support the introduction and passage of the Crime Victims’ Rights Federal Constitutional Amendment in 1996. The proposed amendment will give crime victims basic constitutional protections, including the rights to be informed of, present and heard at key criminal justice proceedings; the right to an order of restitution; the right to a final conclusion free from unreasonable delay; and the right to reasonable protections from the offender. The nation’s leading victim policy advocates are thrilled with the progress of the proposed Federal amendment to protect the rights of crime victims. U.S. Attorney General Janet Reno has expressed her support for the constitutional amendment, stating, "The best way to secure consistent and comprehensive rights for victims is by including those fundamental rights within the U.S. Constitution." While efforts to reform the criminal justice system have elevated crime victims’ status in the criminal justice system, there is no question that the victims’ rights movement should continue to balance the scales of justice through an amendment to the U.S. Constitution for victims’ rights.
While crime victims today may be treated with more dignity, compassion and respect, they still do not receive the same level of protection that violent criminals enjoy. Violent crime affects victims and their families and loved ones physically, financially and emotionally. While offenders receive, at taxpayers expense, shelter, food, clothing and medical attention, victims of crime are frequently left to fend for themselves regarding the costs of rebuilding their lives. Legal fees, medical expenses and time lost from work frequently come out of the victim’s pocket.
As states begin to pass much needed victims’ legislation, you too should be concerned about the fair treatment of victims. Crime victims should be treated with sensitivity and compassion. Don’t wait until you or a loved one has become a crime statistic.
For more information on how you can help victims of crime, call the Shelby County Government Victims Assistance Center in Mayor Jim Routs’ Office at (901) 576-4357.

Ordinarily, the prosecution is prohibited from interjecting issues which pertain to an accused’s character into a criminal trial. However, the defense may deem it appropriate to place the defendant’s character into issue by calling witnesses to testify as to the defendant’s character for peacefulness, non-violence, and good order. Once the defense "opens this door" the prosecution may then cross-examine the character witness by inquiring whether he or she is aware of the specific instances of conduct which have been attributed to the accused. The sole purpose of this cross-examination is to test the reliability and credibility of the character witness. Accordingly, the specific instances may not be proved by extrinsic evidence or inquired about other than on cross-examination of the character witness.1
Although this common law rule has existed in Tennessee for some time, there was little authority with regard to either the procedure to be utilized in applying the rule or the standards to be employed by the trial judge in evaluating the propriety of such cross-examination. In 1990, with adoption of the Tennessee Rules of Evidence, trial lawyers and judges were given specific procedural guidance in application of the rule.
Rule 405(a)2 of the Tennessee Rules of Evidence provides that:
Rule 405. Methods of proving character. (a) Reputation or Opinion. - ...After application to the court, inquiry on cross-examination is allowable into relevant specific instances of conduct. The conditions which must be satisfied before allowing inquiry on cross-examination about specific instances of conduct are:
(1) The court upon request must hold a hearing outside the jury’s presence,
(2) The court must determine that a reasonable factual basis exists for the inquiry, and
(3) The court must determine that the probative value of a specific instance of conduct on the character witness' credibility outweighs its prejudicial effect on substantive issues (emphasis added).
While Rule 405 is a great improvement in providing instruction as to appropriate procedural application of the common law rule, it provides little in the way of guidance for either bench or bar as to the standards and definitions that should be employed to evaluate prosecutorial requests for such cross-examination. Other jurisdictions have addressed this problem by adopting stringent requirements by case law which supplement their rules of evidence. Such jurisdictions generally provide that, before allowing this type of cross-examination, the judge should be satisfied:
(1) That there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction or other pertinent misconduct of the defendant;
(2) That a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
(3) That neither the event nor conduct, nor the rumor concerning it, occurred at a time too remote from the present offense;
(4) That the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
(5) That the examination will be conducted in the proper form.3
What is needed now in Tennessee is like guidance with regard to the standards and definitions to be used in applying Rule 405, including matters such as what specific instances of conduct are relevant for impeachment purposes and what constitutes a reasonable factual basis. Such issues are currently pending in the Tennessee Supreme Court.4 Hopefully, the Supreme Court will take the opportunity to shed some light on the proper standards to be employed in utilization of Rule 405. The Bench and Bar would benefit greatly from such clarification.

1. Tucker v. State, 149 Tenn. 98, 257 S.W. 850 (1924).

2. Effective January 1, 1990.

3. State v. Myers, 579 S.W.2d 828 (Mo. App. 1979), and State v. Hinton, 206 Kan. 500, 479 P.2d 910, 916 (1971), and numerous other authorities catalogued in Cross-examination of Character Witness for Accused with Reference to Particular Acts or Crimes, 13 A.L.R.4th 796 (1981).

4. State of Tennessee v. Clarence Nesbit, No. 02S01-9705-00043.

Despite an overall decline in the crime rate in recent years, there has been an increase in the rate of juvenile crime. Many people see juveniles as not only committing more crimes, but committing crimes which are much more violent, often with no signs of remorse. Tennessee’s legislature, like many others, has responded by seeking to have more children tried as adults. Under our law, a sixteen year old charged with any delinquent act is subject to the possibility of a transfer to criminal court to be tried as an adult. So are children under the age of sixteen if they are charged with certain violent offenses. TENN. CODE ANN. § 37-1-134.
Since In re: Gault, 367 U.S. 1 (1967), juvenile courts have taken on many of the attributes of an adult criminal court, with the exceptions of a jury trial and the disposition phase of hearings. Since juvenile courts can retain jurisdiction over children until the age of nineteen, TENN. CODE ANN. §§ 37-1-131 and 37-1-137, juveniles may express the wish to be transferred to criminal court and tried as an adult. These juveniles have consulted street lawyers, done the math, and concluded that they will be "free" earlier than if they stay in the juvenile justice system. The parents of the child, who usually have hired the attorney, generally want to keep the case in Juvenile Court. The question arises about the attorney’s ethical obligations.
In a delinquency hearing, the attorney-client relationship is between the attorney and child. This is true even when the attorney is paid by a third party, such as the child’s parents. The parents’ wishes, therefore, cannot control. "A lawyer shall not permit a person who ... pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal actions." TENN. SUP. CT. R. 8, CODE OF PROFESSIONAL RESPONSIBILITY, DR ("DR") 5-107.
Even if the attorney believes it would be in the client’s "best interest" to stay in Juvenile Court, the attorney is "bound by the client’s definition of his or her interests....It is appropriate and desirable for counsel to advise the client concerning the probable success and consequences of adopting any posture with respect to those proceedings." Standards Relating to Counsel for Private Parties, 3.1(b)(I), by Institute of Judicial Administration and the American Bar Association, Criminal Justice Section, approved by the House of Delegates, in 1979 and 1980, ("Standards"). This is in accord with the TENN. SUP. CT. R. 8, EC ("EC") 7-7, which states that "the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on the lawyer." See also: Standards, 5.2(a)(iii).
Because of the client’s age, mental condition and life experiences, the attorney’s responsibility may vary and extend beyond that which would otherwise be required. EC 7-11. The attorney needs to insure that the client understands the consequences of a course of action enough to make an informed decision, DR 7-101(A)(3), EC 7-8. Everything must be explained at the child’s level. Since many children charged with delinquency are neither sophisticated nor well educated, explanations must be both simple and thorough. Some clients like the "prestige" of being an adult offender, without comprehending its ramifications. The client should be told that unless the juvenile is acquitted in criminal court, once transferred, there is no return to juvenile court for subsequent or pending offenses. TENN. CODE ANN. § 37-1-134 (c). If the client gets in trouble after a conviction or guilty plea in criminal court, even if the sentence has been suspended and the client is on probation, the consequences are very different than in juvenile court. One factor that many juveniles do not consider is that if they plead guilty or are found such in criminal court, that conviction can be used against them later. That is not true of a finding of delinquency, except for purposes of a pre-sentence investigation and report in dispositional proceedings after conviction of a felony. TENN. CODE ANN. § 37-1-133. This could be the juvenile’s "last bite of the apple." The attorney also needs to be certain the client has a realistic understanding of the amount of time that is likely to be served.
The attorney’s advice must be made and communicated objectively to the client. "It is unprofessional conduct for a lawyer intentionally to understate or overstate the risks, hazards or prospects of the case in order unduly or improperly to influence the client’s determination of his or her posture." Standards, 5.1(a).