Letter from the Chair by Jim Milam, Chairman, Criminal Justice Section, 1998–1999
In Memoriam: Patrick Houston McCutchen by John H. Peay, a friend
Pat McCutchen was one of my very best friends. My wife and I had begun traveling to East Tennessee for a Judicial Council meeting when I got a telephone call saying Pat had suffered a heart attack and was at Baptist Hospital. We decided to head toward Baptist. Before we got to the interstate, the second call came. Pat had not made it. I was devastated. I didn’t believe it! I still don’t. He was more full of life than anyone I have ever known. I’ve told others who did not know him as well that you had to experience Pat to fully appreciate him.
Pat was a loyal friend. He and I became friends in high school. When he passed the bar exam, he asked me to introduce him to the Tennessee Supreme Court. He was elected district attorney general the same time I was elected judge, and we both took office September 1, 1982. One day later, we tried our first jury criminal case, as DA and judge, and in the eight years we worked together, we never had a cross word. He was always respectful of the judicial system and was an excellent administrator and advocate. Also, he had one trait that is often missing: he had an abundance of common sense. He knew people, and he loved people; that makes a tremendous difference when you are dealing weekly with hundreds of people (defendants, witnesses, victims, and jurors.)
Pat had a reputation of not always being on time. Truthfully, this bothered me. When we played golf, we would tell Pat the tee time was thirty minutes earlier than the actual time. I worried about Pat’s being late to court when we were first elected. Sure enough, after the lunch break on the first day of our first trial, Pat was not back at 1:15 p.m., the appointed time. Over the court officer’s objection, I assembled everyone, including the jury, in the courtroom, and we waited. The courtroom was quiet. At 1:30 p.m., Pat strolled in and then had a shocked look on his face. He apologized and announced that he had thought we had adjourned until 1:30. In my eight years on the trial bench, he was never late again.
Pat gave up smoking years ago, but still chewed tobacco while a DA. I went to his office one day and he had posted a sign that read, "Thank you for not smoking." I didn’t smoke, although he said I could. When I got back to my office, I ordered a sign that read, "Thank you for not chewing." When I quit smoking he gave me a pack of candy cigarettes named "Lucky Spikes." I still have these and plan to keep them as well as an old sign he gave me from his lumber yard, which I have now hung at the Black Jack Hunting Club.
When Pat came to see me about accepting the job as executive director of the DA’s Conference, I encouraged him. I thought it was "a perfect fit" for him. It was! A new group of friends and acquaintances had the opportunity to experience him.
Pat McCutchen loved his friends, his job, and people. He was a great storyteller. I had the good fortune of experiencing his humor, loyal friendship, and companionship for over 40 years — on the golf course, in the duck blind, on the dove field, and in court. He was always the same, to everyone and every time you saw him. He’ll never be dead to me.
Supreme Court Update by W. Mark Ward
Since publication of our last newsletter the Tennessee Supreme Court has rendered the following opinions relating to criminal law:
WAIVER OF CONSTITUTIONALLY
QUALIFIED JUDGE:
State v. Blackman, 984 S.W.2d 589 (Tenn. 1998)
Right to be tried by a constitutionally qualified judge may be waived, but the record must affirmatively demonstrate that the waiver was "personally" made by the defendant and was voluntarily, knowingly, and intelligently given. Counsel’s waiver cannot be imputed to defendant. Asset Forfeiture is not "punishment" for double jeopardy purposes.
CORAM NOBIS, PROCEDURE ON APPEAL; IMPEACHMENT, DOUBLE JEOPARDY:
State v. Mixon, 983 S.W.2d 661 (Tenn. 1999)
A judgment becomes final, and the one-year coram nobis statute of limitations begins to run, thirty days after entry of judgment in the trial court if no post-trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion. Hence, in most instances, to be timely, a petition for writ of error coram nobis generally will be filed during pendency of the direct appeal as of right. When filing a coram nobis in the trial court, a defendant must simultaneously file a motion in the appellate court to stay the appeal until conclusion of the coram nobis proceeding in the trial court. If the coram nobis decision is likewise appealed, the appeal will be consolidated with the direct appeal and the issues raised on the direct appeal must be considered prior to the appellate court’s consideration of the coram nobis issues. Case reversed on direct appeal issue regarding use of prior sexual battery conviction for impeachment in a trial for another sex offense. Prejudicial effect of similar crime outweighed probative value. Convictions for both attempted rape and sexual battery violate double jeopardy.
INDICTMENT DEFECTS, GUILTY PLEA WAIVES, CONSECUTIVE SENTENCING:
State v. Jabbaul Pettus, No. 01-S-01-9709-CC-00202 (Tenn. Jan. 25, 1999)
Defendant waived right to contest defect in indictment (fact that no amount of cocaine was stated) by virtue of his guilty plea. Offense committed on community corrections does not constitute offense committed while on "probation" for consecutive sentencing purposes, but consecutive sentencing was justified because defendant has a record of criminal activity which is extensive. Excellent discussion of guilty plea requirements and plea bargaining.
DOUBLE JEOPARDY; MULTIPLE
CONVICTIONS:
State v. William Henry Barney, No. 01-S-01-9802-CR-00033 (Tenn. Feb. 1, 1999)
Dual convictions for acts of fellatio and rubbing of penis do not violate due process. Separate convictions for aggravated sexual battery and rape of a child do not violate double jeopardy.
DEATH PENALTY, OUTDATED
VERDICT FORMS:
State v. Preston Carter, No. 02S01-9705-CR-00045 (Tenn. Feb. 1, 1999)
Trial judges use of outdated verdict forms in sentencing stage of capital case required reversal of death sentence.
DIVERSION; DENIAL BASED ON EVIDENCE OF PRIOR DIVERSIONS:
State v. Kristina Schindler, No. 03S01-9804-CR-00040 (Tenn. Feb. 1, 1999)
Evidence of prior diversions may be considered in determining whether a defendant is a suitable candidate for diversion.
SEARCH WARRANT AFFIDAVIT; CITIZEN INFORMANTS
State v. Gerald Robert Stevens, No. 02-S-01-9712-CC-00112 (Tenn. Feb. 1, 1999)
Conclusory allegation in affidavit that narcotics information was provided by a "concerned citizen source" was insufficient to establish the reliability of the information for the issuance of a search warrant. Affidavit should make particularized showing that citizen informer was a law-abiding individual rather than an informant from the criminal milieu.
POST CONVICTION, STATUTE OF
LIMITATIONS, DUE PROCESS:
Charles Walton Wright v. State, No. 01-S-01-9709-CR-00196 (Tenn. Feb. 1, 1999)
Post conviction petition alleging Brady violation filed 10 years after commission of offense, 61&Mac218;2 years after conviction became final, 31&Mac218;2 years after statute of limitations expired, and 3 years after court decision giving rise to new claim was a later-arising issue not barred by Buford, but was so untimely filed as to justify dismissal as defendant had been given a "reasonable opportunity" to present his claim.
MURDER, TRANSFERRED INTENT:
Bryant Dewayne Millen v. State, No. 02-S-01-9711-CR-00106 (Tenn. April 26, 1999)
The definition of "intentional" murder in Tennessee allows the conviction of a defendant who kills a person even if the defendant intended to kill another person and resort to common law concept of transferred intent is not necessary.
PRETRIAL DIVERSION; DENIAL BASED ON NATURE OF OFFENSE:
State v. Carolyn L. Curry, No. 02-S-01-9709-CC-00079 (Tenn. March 8, 1999)
District Attorney abused discretion denying pre-trial diversion based solely on the circumstances of the offense, without considering all relevant factors. District Attorney must submit all of his reasons for denial of diversion in writing and cannot supplement those reasons by way of an evidentiary hearing.
ATTEMPT FELONY MURDER, SEQUENTIAL INSTRUCTIONS, IMPLIED ACQUITTAL:
State v. Richard Madkins, No. 02-S-01-9805-CR-00046 (Tenn. March 22, 1999)
Attempted felony murder does not exist in Tennessee. When sequential jury instructions are given, verdict of guilt on a specific offense is an implied acquittal on all offenses ordered to be considered prior to the offense on which a verdict of guilt is returned. On the other hand, when sequential jury instructions are given and a verdict of guilt is returned, no implied acquittal arises as to offenses ordered to be considered subsequent to the offense for which the verdict of guilt was returned.
HARMLESS ERROR, LIFE
WITHOUT PAROLE:
State v. Deion Smith Harris, No. 02-S01-9806-00053 (Tenn. April 12, 1999)
Jury’s return on erroneous aggravating circumstance in LWOP case was not constitutional error requiring Howell harmless error analysis. Error was harmless under non-constitutional standard. Excellent concurrence by Special Justice Hayes criticizing majorities non-constitutional harmless error analysis.
SEARCH INCIDENT TO ARREST:
State v. Bobby Crutcher, No. 01S01-9804-CR-00081 (Tenn. April 12, 1999)
Defendant was not under "custodial arrest" at the time police searched his motorcycle such that search could not be justified as incident to a lawful arrest. Defendant was injured in an accident while fleeing the police, at the scene of the accident he was not advised he was under arrest nor read his Miranda rights. He was transported to the hospital for treatment of his injuries. Police searched his motorcycle at the scene and obtained an arrest warrant several hours after the defendant had been transported to the hospital.
RIGHT TO COUNSEL; ELBOW OR
ADVISORY COUNSEL:
State v. Gerald Patrick Small, No. 03-S-01-9804-CR-00038 (Tenn. April 12, 1999)
There is no constitutional right to appointment of advisory counsel where a defendant has waived the right to counsel. However, trial court has discretion to appoint advisory counsel.
DEATH PENALTY; MIDDLEBROOKS-
HOWELL HARMLESS ERROR:
Terry Lynn King v. State, No. 03S01-9801-CR-00001 (Tenn. April 12, 1999)
Inclusion of underlying felony which supported felony murder conviction in list of possible felonies to support the (i)(7) aggravating circumstance violates Middlebrooks, but error harmless under Howell analysis. Howell harmless error analysis does not require comprehensive review of cumulative errors. Admission of co-defendant’s confession introduced in violation of Cruz v. New York, 481 U.S. 186, was harmless error due to overwhelming evidence of guilt.
ELECTION OF OFFENSES:
State v. James A. Brown, No. 02-S-01-9710-CR-00085 (Tenn. April 19, 1999)
Prosecutor’s narrowing of the time-frame of the charged offense from the seven month period alleged in the indictment to a time period of slightly over two months did not constitute an election of a specific offense required to preserve the defendant’s constitutional right to a unanimous jury verdict.
Letter from the Chair by Jim Milam, Chairman, Criminal Justice Section, 1998–1999
As I complete my year as chair of the Criminal Justice section, I am pleased to report that the section has grown to over 160 dues-paying members consisting of prosecutors, public defenders, private defense attorneys, and judges. The section provides a forum where practitioners with different viewpoints can share information and work together to solve problems that affect the operation of the criminal justice system in Tennessee and the quality of justice that it dispenses to those who come within its doors. Rather than recap the accomplishments of the section during the past 12 months, I have chosen to use these few moments of your time to identify three long-term trends which have brought profound changes during the past decade in the way that major criminal trials are conducted in the Tennessee courts, and to discuss one of them in the context of a highly-
publicized trial.
The trends of which I am speaking all began in the late 1980s and have gathered momentum throughout the 1990s to the point that the changes spurred by them are, for all intents and purposes, irreversible. They include (1) the movement to recognize and protect victims’ rights; (2) the movement to open the judicial process to the public by allowing cameras in the courtroom; and (3) the movement to guarantee competent legal representation for indigent capital defendants at every stage of the proceedings. While the changes caused by each of these movements were apparent in the recent Paul Reid capital murder trial that took place in Davidson County in April, I will only address the subject of cameras in the courtroom and how their presence magnified the impact of a single criminal trial.
The Reid trial was the first trial ever held in Tennessee which was televised live in its entirety on local cable television. For those who are unfamiliar with the facts, the defendant was accused of robbing and murdering two Captain D’s employees one Sunday morning in February 1997. He was convicted by a jury imported from Knox County of especially aggravated robbery, two counts of premeditated murder, and two counts of felony murder. The jury found that the punishment for each murder should be death. According to local news media reports, the Reid trial, which lasted for eight days, was the highest-rated television program on any station in Middle Tennessee during some points in the trial. The number of calls to radio call-in shows which covered the trial exceeded all expectations. Many people rearranged their schedules so that they could see as much of the trial as possible. This unprecedented level of public interest in a televised criminal trial created the first real opportunity to educate the public about Tennessee criminal law and procedure, since the Supreme Court promulgated the Rule spelling out the procedures whereunder cameras would be allowed in the courtroom. In this case, it worked.
Fortunately, the trial judge, the prosecutors, and the defense attorneys in the Reid trial all conducted themselves as if they were trying the case without any television cameras. Judge Cheryl Blackburn took special pains to preserve the anonymity of the jurors and to protect them from public view while the trial was in progress. One can only hope that the participants in the next televised criminal trial will conduct themselves as well as those in this trial did.
Representation of Spanish-Speaking Clients: Adapting to a Growing Community
by Mary Griffin Harden, Metro Public Defender’s Office
These days at the Metro Davidson County Public Defender’s Office you’re just as likely to hear "Hola, ¿en qué puedo ayudarle?" as "Hello, How can I help you?" In our office of 36 Attorneys and five investigators, four attorneys and one of our investigators speaks Spanish in varying levels of proficiency. In November 1997, Metro Public Defender Karl Dean assigned one attorney to represent solely Spanish-speaking clients in a full-time capacity. This attorney was responsible for cases arising in general sessions jail and bond dockets, all four criminal court divisions and occasionally juvenile court. Additionally, it was her responsibility to investigate these cases as well as do intake procedures such as indigency determination and interviews.
During January 1–October 31, 1997 interpreters were called in by the clerk in General Sessions Court alone 181 times to serve the Spanish-speaking population. Many of these cases were handled in conjunction with the Spanish-speaking staff attorney. Due to the cultural and language barriers involved in handling these cases, they were very labor intensive, resulting in the attorney having to spend much more time with a Spanish-speaking client than she would with a defendant who speaks English.
One of the reasons so many Hispanics are attracted to Tennessee is the 6.4% unemployment rate. Most of those jobs are in construction labor and landscaping, positions held primarily by men aged 16-30. Many of these Hispanic individuals come to Nashville without knowing or understanding the laws. What might be legal or culturally proper in Mexico or Cuba is not legal or appropriate here. Language barriers frequently cause confusion between Spanish-speaking clients who often don’t understand the police or the court system. Even once placed on probation, many did not understand what was expected of them.
Few programs were available to the Spanish-speaking population. Through consistent demand for resources for Spanish-speaking clients, Nashville gained a DUI program in Spanish followed by a defensive driving course. Cumberland Heights expanded treatment options to include a domestic violence/
substance abuse course for male offenders and a drug/alcohol treatment program in Spanish. More recently, a one-day anger management course has been offered in Spanish.
Though Nashville still does not have any Spanish-speaking general sessions probation officers and only one state level Spanish-speaking probation officer, some of the basic paperwork has been translated, including the DUI penalties and probation requirements for a person convicted of DUI. The Criminal Courts regularly use the Criminal Court plea petition that was translated into Spanish with the help of the Spanish-speaking attorney. At the Public Defender’s Office, a Spanish-speaking client can fill out a Spanish language indigency form to qualify for services and is then given a note in Spanish explaining how to obtain a free copy of their warrant. When the client returns to the office for an initial interview, they may speak with a Spanish-speaking attorney, investigator or Vanderbilt intern.
Ultimately, the population outgrew the services of one attorney and our office grew to its present number of four Spanish proficient attorneys. This enabled the first Spanish-speaking attorney or "floater’’ as termed within the office, to concentrate on the serious felony cases, following them from general sessions or accepting appointment after direct indictment and letting the newer attorneys handle the misdemeanor jail and bond cases.
In January 1999 our Spanish-speaking investigator joined the Metro Public Defender staff. One of the goals for her job includes helping reduce recidivism among Spanish-speaking clients by educating them about the criminal justice system. Part of this project includes the translation of "Take This Book," a handbook for defendants and their families to explain how the judicial system works. Also, she is helping ensure proper representation to all of our Spanish-speaking clients by providing a complete investigation of each case. Since many of the Hispanic families are not well versed in American culture and laws, the investigator is a liaison between the attorneys, the courts and the families. Lastly, she will make referrals to social service agencies, particularly substance abuse programs and educate the Nashville community to the need to provide more domestic violence and alcohol and drug services to the population.
As the need for services expands, the investigator and attorneys will try to form collaborations with educators in the areas of shoplifting, the patronizing of prostitutes and other areas of need as they arise.
The Spanish floater began the process of educating the community as a founding member of Alianza Latina, a volunteer organization that was formed to address the needs of Hispanics new to the greater Nashville area by providing education in health, legal and social matters. Her radio program on AM 1300,"El Café De Las Siete," is a bi-monthly program offered every other Tuesday at 7 p.m. that addresses the needs of the Hispanic community. A guest is interviewed for 15 minutes and then questions from the community are entertained after a brief break. Topics to date include DUI, domestic violence and immigration issues.
The office has begun to use law school and undergraduate Vanderbilt interns to assist with legal research, brief writing, investigation and interviewing. Currently, an intern from the Human and Organizational Development program at Vanderbilt is creating a handbook to assist attorneys in the representation of non- English speaking clients by providing a comparison between our legal system and the legal systems of other countries, and highlighting legal terms commonly used.
The last census of the jails was released in 1994 and revealed that local jails housed 490,422 offenders. Fifteen percent of that number was reported as Hispanic. It is unclear, however, how accurate that number really is since Hispanics are listed as "white", "black" or "other" when identified as to race on arrest and other forms. The Public Defenders office is trying to improve the statistics on Hispanics by tracking our cases. We are trying to gather information on which countries the Spanish speakers are from, how many years of education they have, history of mental illness, use of drugs or alcohol, work history and type of charge so a better picture of the clientele can be formed.
This inter-office and community partnership approach to the representation of Hispanic clients seems to have paid off. Through the coordination of attorneys, investigators, interns and community resources the Metro Public Defender’s office has been able to represent Spanish speakers and address their mental health, cultural, language and immigration issues. The Spanish-speaking attorney "floater" has been active in educating the legal community in Tennessee about the ethics of representing the Spanish-speaking client and discussed the importance of inter-office and community partnerships when representing the Spanish-speaking client when she spoke at the NLADA conference in San Antonio this year.
Plans for the future include continued community education and outreach by the Spanish "floater" and Spanish-speaking investigator. Additionally, they will meet with the Miami Public Defender’s Office this spring to share defense strategies, investigation and motion practice when representing the Spanish-speaking population with this veteran office.
Because immigration is almost always a collateral issue when representing the Spanish-speaking client, the Spanish "floater" has become the de facto source for immigration information within the office. She subscribes to an immigration newsletter, keeps abreast of recent changes in immigration policy through a contact in the Memphis immigration office and keeps the phone numbers of several good immigration attorneys at her fingertips.
Positive signs of the impact of the office’s partnership approach to the representation of Spanish speakers include frequent requests by probation officers, court officers and judges for translations of basic terminology as well as a willingness to consider alternative forms of sentencing in an effort to avoid harsh immigration consequences that may unduly penalize the family of a client.
With the anticipated growth of the Spanish-speaking population in Nashville, there are bound to be more changes in the representation of Spanish-speaking clients by the Metro Public Defender’s Office. But as sure as the population grows and changes, so will we. n
Mary Griffin is an Assistant Public Defender assigned to represent indigent Spanish speakers in Davidson County. She received her J.D. from the University of Tennessee School of Law and her B.F.A. from New York University. Mary is currently active in the Nashville Latino community as a founding member of Alianza Latina and cohost of "El Cafe De Las Siete," a bi-monthly radio program.
