Tennessee AAttorneys Memo Vol. 41, No. 5 A weekly summary of all new Tennessee law developments February 1, 2016 A look at criminal cases on agenda of state’s highest court The Supreme Court has agreed to hear or has heard argu- intended or designed to elicit a sexual response in an average ment in cases involving whether to adopt the good faith excep- viewer rather than the defendant. The appeals court ruled that the tion to the exclusionary rule, whether to modify Tennessee’s ex trial judge did not err in refusing to instruct the jury that photog- post facto analysis, whether a driver can be stopped for drifting raphy of an undressed minor alone was insufficient to convict the out of a lane, and the effect, if any, of the “unlicensed physical defendant of especially aggravated sexual exploitation of a minor intrusion” definition of a search. when the definitions of “sexual activity” and “lascivious” were Employing firearm during offense. The Supreme Court sufficient to instruct the jury that more than mere nudity was granted the state’s application for permission to appeal in a case required to convict the defendant of the charged offense. State v. in which the Court of Criminal Appeals ruled that an indictment (continued on page 2) for employing a firearm during the commission of a dangerous felony was fatally flawed for failing to name the predicate felony. State v. Duncan, 39 TAM 49-27 (Tenn.Cr.App. 2014), appeal granted 2/13/15, oral argument 11/4/15. Highlights In a similar case, the Supreme Court heard a case in which the indictment charged the defendant with employment of a ● Supreme Court holds that parents are constitutionally entitled to firearm during the commission of a dangerous felony. The Court fundamentally fair procedures in parental termination proceed- of Criminal Appeals held that the defendant was properly ings, but this constitutional mandate does not allow parents to charged when there was only one dangerous felony that could collaterally attack orders terminating parental rights based on serve as the underlying predicate felony, i.e., carjacking, and the ineffective assistance of counsel, page 3. defendant need only look back to the carjacking count of the ● Supreme Court says election of offenses doctrine does not indictment to have notice of the predicate felony relied on for the require prosecution to identify single incident in cases where firearm charge. victim of child sexual abuse testified to repeated incidents of Another issue in the case involves the trial court’s failure to sexual contact occurring over substantial period of time but is instruct the jury on possession of a firearm during the commis- unable to furnish specific details, dates, or distinguishing char- sion of dangerous felony as a lesser included offense of employ- acteristics as to individual incidents of sexual battery, page 5. ment of a firearm during the commission of a dangerous felony. ● Court of Appeals affirms trial court’s allocation of 60% of fault The Court of Criminal Appeals ruled that the trial court’s action to Fire Rescue employee who was responding to emergency call did not constitute plain error when, at the time of the defendant’s in truck equipped with siren and emergency lights and was trial, possession of a firearm during the commission of a danger- struck by vehicle driven by plaintiff, who did not see or hear ous felony had not been recognized as a lesser included offense truck and entered intersection on green light, page 7. of employment of a firearm during the commission of a danger- ● Court of Appeals says chancery court does not have subject ous felony. It was only while the defendant’s appeal was pending matter jurisdiction to entertain declaratory judgment action or that the Tennessee Supreme Court made that enunciation. State v. action for injunctive relief regarding validity of local rules of Martin, 40 TAM 22-20 (Tenn.Cr.App. 2015), appeal granted criminal court, page 10. 5/15/15, oral argument 11/4/15. ● Court of Criminal Appeals says trial judge erred in denying Exploitation of minor. The Supreme Court will hear a case defendant’s motion to suppress his confession to police when in which the defendant was convicted of nine counts of espe- defendant made statement as part of cooperation-immunity cially aggravated sexual exploitation of a minor. The defendant agreement, which turned out to be unenforceable, page 16. secretly recorded his daughter in her bathroom and his daughter ● Sixth Circuit, in affirming summary judgment in legal malprac- and her friend in his daughter’s bedroom. All of the videos tice case based on statute of limitation, rules inconvenience, depicted the victims either fully or partially nude. The positions time, and expense that plaintiff incurred by retaining new coun- of the camera indicated that the defendant selected locations to sel constituted “actual injury” under discovery rule, page 24. film to best capture the victims’ nudity. ● Sixth Circuit rejects contention that auto insurance policy was The Court of Criminal Appeals ruled that the trial judge structurally ambiguous because of distance in policy between properly instructed the jury that visual depiction must be coverage provision and family member exclusion, page 25. TENNESSEE ATTORNEYS MEMO (ISSN 0194-1259) is published weekly by M. Lee Smith Publishers®, a division of BLR® -- Business & Legal Resources, 100 Winners Circle, Suite 300, Brentwood, TN 37027. Subscriptions, 877/826-5297; Case Copies, 615/661-0248; Customer Service, 800/274-6774. Periodicals postage paid at Brentwood, TN and additional offices. POSTMASTER: Send address changes to TENNESSEE ATTORNEYS MEMO, 100 Winners Circle, Suite 300, Brentwood, TN 37027. Copyright 2016 M. Lee Smith Publishers®, a division of BLR® -- Business & Legal Resources. Photocopying or reproducing in any other form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent Virginia Mayo, Editor • Jean Simpkins, Associate Editor • Joe Lackey, III & Rachel Mayo, Assistant Editors Whited, 40 TAM 25-22 (Tenn.Cr.App. 2015), appeal granted In the second case, the Court of Criminal Appeals ruled that 9/22/15, oral argument 1/27/16. the defendant’s crossing of double yellow lines on a single occa- sion is sufficient to provide “probable cause” to initiate a traffic Rape of child. The Supreme Court will decide whether the stop under either TCA 55-8-121 or 55-8-123. State v. Davis, 40 Court of Criminal Appeals erred in ruling that aggravated sexual TAM 6-22 (Tenn.Cr.App. 2014), appeal granted 5/14/15, oral battery is not a lesser included offense of rape of a child. State v. argument 9/9/15. Howard, 40 TAM 45-16 (Tenn.Cr.App. 2015), appeal granted 12/11/15, oral argument 4/22/16. The Supreme Court has also agreed to hear the issue of whether the court should revisit its holding in State v. Moats, 403 Drug offenses. The Supreme Court will hear a case in SW3d 170 (Tenn. 2013), and prior Tennessee decisions that which the defendant challenged the sufficiency of the evidence to limited the community caretaking doctrine to third-tier consen- support his conviction for facilitation of possession of .5 gram or sual police-citizen encounters. In the case before the court, the more of cocaine with intent to deliver within 1,000 feet of a drug- Court of Criminal Appeals ruled that a trial court properly denied free school zone. An officer executed a search warrant at a home, a defendant’s motion to suppress given the fact an officer was and the defendant’s driver’s license and clothes were found in a exercising his role as community caretaker when he activated his bedroom. Two bags of cocaine were found by officers in a bag emergency lights and stopped the defendant’s vehicle. The inter- close to where the defendant had been sitting, and the defendant mediate appellate court stated that activation of emergency lights acknowledged that one of the bags was his. The bags also con- by an officer was an exercise of the community caretaking func- tained the defendant’s student identification card, two handguns, tion and did not constitute a seizure. State v. McCormick, 40 digital scales, and gloves. The defendant had on his person a TAM 20-25 (Tenn.Cr.App. 2015), appeal granted 9/25/15, oral small amount of cocaine and $200 in cash. State v. Gibson, 40 argument 2/10/16. TAM 39-21 (Tenn.Cr.App. 2015), appeal granted 11/24/15. Search & seizure. The Supreme Court will consider the Exclusionary rule. The Supreme Court will decide whether affect, if any, of the “unlicensed physical intrusion” definition of it should adopt a good faith exception to the exclusionary rule a search as articulated in Florida v. Jardines, 133 SCt 1409 pursuant to United States v. Leon, 468 US 897 (1984), and, if so, (2013), and if officers’ entry into the curtilage of a defendant’s whether the good faith exception would preclude application of home constituted a search and whether it was supported by the exclusionary rule in the case under consideration. A defen- probable cause and existence of exigent circumstances. In the dant was at the hospital being treated for her injuries in a car acci- case before the court, the Court of Criminal Appeals held that a dent when a blood sample was taken for law enforcement “no trespassing” sign does not, standing alone, invalidate the purposes. The Court of Criminal Appeals ruled that the warrant- “knock and talk” procedure by revoking the implied less blood draw was proper and that the evidence preponderated consent/invitation for officers to approach a defendant’s front against the trial court’s conclusion that a police officer lacked door.