Nate Rau of The Tennessean ran  two stories  about a Hermitage , Tennessee women charged with vehicular homicide . The catch is she was not driving the car in the deadly crash. Her boyfriend was at the wheel . Metro Nashville Police charged her under the theory of  that she was criminally responsible for the vehicular homicide charge while her friend was driving. It is unique legal theory and has been used rarely rarely in the past. . The owner/passenger DUI charge is common in Nashville DUI cases . Typically , someone else drives the car while the owner is a passenger . Driver gets arrested for DUI then so does the owner of the car. In fact , it has statutory authority under T.C.A. 55-10-201.

Criminal responsibility is based upon the simple theory that if I give you some help to commit a crime , I am just as responsible as the person that does he crime. One example is you give me twenty bucks to take you to the bank so you can rob it. Under those facts , I am just as guilty for the bank robbery because I knew what you were going to do. In a vehicular homicide , the knowledge that the driver is going to be involved in a deadly car crash is more remote. In fact , there is no Mens Rea for the crime other than reckless conduct. How can a person anticipate recklessness. here is the jury instruction for criminal responsibility ;

T.P.I. — CRIM. 3.01

CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER

The defendant(s) [is] [are] criminally responsible as a party to the offense(s) of _____________________________________________________

if the offense(s) [was] [were] committed by the defendant’s own conduct, by the conduct of another for which the defendant(s) [is] [are] criminally responsible, or by both.  Each party to the offense may be charged with the commission of the offense.1

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, acting with the culpability required for the offense, the defendant(s) cause(s) or aid(s) an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense.]2

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the defendant(s) solicit(s), direct(s), aid(s), or attempt(s) to aid another person to commit the offense.]3

 

[The defendant(s) [is] [are] criminally responsible for an offense committed by the conduct of another if, having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the defendant(s) fail(s) to make a reasonable effort to prevent commission of the offense.]4 [A defendant who is criminally responsible for an offense may be found guilty not only of that offense, but also for any other offense or offenses committed by another, if you find beyond a reasonable doubt that the other offense or offenses committed were natural and probable consequences of the original offense for which the defendant is found criminally responsible, and that the elements of the other offense or offenses that accompanied the original offense have been proven beyond a reasonable doubt]. [5] [In deciding the criminal responsibility of the defendant, the jury may also take into consideration any evidence offered that the defendant attempted to thwart or withdraw from any of the offenses that followed from the original offense.] [6]

Before you find the defendant(s) guilty of being criminally responsible for said offense(s) committed by the conduct of another, you must find that all the essential elements of said offense(s) have been proven by the state beyond a reasonable doubt.

The problem with the charges against Erin Brown is that it opens the doors for the expansion of what can be considered a criminal act. Can the bartender be charged for selling a beer . How about the store ? How about the Titans after someone leaves a game after buying a beer. One solution is to put more teeth in the dram shop act which puts civil liability on those that furnish alcohol. I doubt that happens because that industry is protected by a horde of influence peddlers. My guess is the state legislature will pass another law that over-criminalizes ones conduct. Right now Ms.Brown’s case is going to the Grand Jury. Disclaimer. My opinions are my own . 

It is not official but there may be a new tactic in how Metro Nashville police are handling patronizing prostitution cases in Nashville, Tennessee. Over the weekend , a prominent high school football coach was arrested for patronizing prostitution. What makes this case different is how the police start the process. Tennessee police officers have a option to issue a criminal citation in lieu of a arrest warrant . For years Metro police have issued criminal citations in lieu of arresting someone.It appears the police are now issuing arrest warrants in Nashville prostitution cases .

It appears there is a new trend to issue an arrest warrant . Why the change ?  It could be there is a public record of the arrest while the case is working its way in the criminal justice system . Or, the letters one gets in the mail from lawyers who prey on the arrest information to send you a letter to your home soliciting your business. So you make a mistake then your mailbox gets flooded with letters and postcards .

 

It is more important now than ever to get this type of case handled quickly and efficiently.

What people put on Facebook never ceases to amaze me . Now , the police are using Facebook to track down fugitive criminals .  A police department in Alabama recently posted a wanted poster on Facebook. In the Old West , the sheriff would post a wanted poster in the post office.  In this century ,we go to the Internet.They hoped to get some information of where the alleged rapist was hiding.

Guess who responded to the post first ? The man accused of the rape responded first Mr. Dustin McCombs. Jefferson County officials engaged Mr. McCombs about turning himself in to authorities. Mr. McCombs responded to the Facebook post after he was named "creep of the Week" on the Jefferson County Sheriff’s Facebook page. After a couple of days they caught up with Mr. McCombs in Ohio and arrested him for the rape charge . You can check out Buzzfeed for the screen shots of the conversation.

One interesting comment. Once formal charges are made,  a defendant has a right to remain silent and he or she can request a lawyer. Do Facebook messages count as police interrogation ? Should he have been Mirandized over the Facebook comments ?  The digital world is hard to keep up with in context of  the rights of the defendant.

McKinney’s Rules:

  •  Don’t give voluntary statements to police.
  • Don’t give statements on Facebook to police.
  • Don’t put your business on Facebook

Remember the whole world now has access. This case is now in the running for dumbest criminal of the year.

 

A  Florida Judge ordered a man accused of a domestic violence charge to take his wife out to Red Lobster as a condition of his bail bond. Judge John Hurley ordered the defendant who was accused of assaulting his wife to get her some flowers , dress up , take her to Red Lobster , and then to take her bowling. Also , the court ordered counseling . It appears the judge took a little heat for his unusual conditions of bail bond.

The story is important because in Tennessee domestic violence cases there are statutory conditions of bond in a domestic violence case. Tennessee Code Annotated 40-11-150 sets at those conditions ;

(1) An order enjoining the defendant from threatening to commit or committing specified offenses against the
alleged victim or other family or household member;
(2) An order prohibiting the defendant from harassing, annoying, telephoning, contacting or otherwise
communicating with the alleged victim, either directly or indirectly;
(3) An order directing the defendant to vacate or stay away from the home of the alleged victim and to stay
away from any other location where the victim is likely to be;
(4) An order prohibiting the defendant from using or possessing a firearm or other weapon specified by the
magistrate;
(5) An order prohibiting the defendant from possession or consumption of alcohol or controlled substances;
and
(6) Any other order required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.

Luckily , the Tennessee statue does not require eating at Red Lobster together or going bowling.

Most DUI arrest warrants in Tennessee have somewhere in the affidavit that the police officer smelled alcohol . The question is whether the smell of alcohol enough to make a DUI case. Tennessee has held that the smell of alcohol alone is insufficient to establish probable cause to arrest for for driving under the influence. However , the smell of alcohol even if not strong constitutes reasonable suspicion to justify a brief detention to ascertain a driver’s level of sobriety . Tennessee courts have held that a detention up to ten minutes was a reasonable time to detain one accused of drunk driving. Once out of the car , the police officer starts to request you to do field sobriety tests which you can refuse. The field sobriety tests becomes the basis to establish probable cause to make the DUI arrest.

It’s Friday the Thirteenth so I thought the strange crime of the week would be a good topic.  A L.A .County Sheriff’s deputy was arrested for smuggling drugs into the county jail. How is why it’s strange. The deputy put heroin into a burrito and brought into the jail. Evidently , he was already under investigation . The deputy was arrested and dismissed from the department. It is illegal under Tennessee to bring contraband such as drugs into a penal facility in Tennessee . It carries 3 to 6 years in jail. I wonder if he got the burrito at Taco Bell.

A warrantless search of a car or truck in Tennessee is usually prohibited , however there are exceptions to this rule. If a police officer can demonstrate probable cause that a car might contain marijuana , a police officer can search a car or truck. The big question is whether the smell of marijuana is enough to justify a search of a car in Tennessee.

Tennessee Courts have upheld a warrantless search of a car  based on the smell of marijuana alone.  One question is  it the smell of raw marijuana or burnt marijuana . Does the smell of marijuana limit the search to the interior of the car ?

Using the smell of marijuana should always be contested in a automobile search. One can test the officer in several ways;

  • What was his training in the odor of marijuana ?
  • What was his experience ?
  • Was there any other evidence of marijuana use found ?

Time and time again I see that there is no evidence recovered of burnt marijuana after the traffic stop. How do you combat the officer’s testimony ? Get an independent witness to smell the car.. The Fourth Amendment is constantly being eroded and the smell is enough to search a car.

Nashville’s WLPN radio has been reporting on some of the new criminal laws that went into effect at the start of the New Year . Tennessee has created a new class of reckless endangerment charges. Senator Mark Norris spearheaded the new law based upon the drive by shootings that occur in Memphis, Tn. The new law makes it a Class D felony when a firearm is discharged into an unoccupied home and it is a Class C felony if the home is occupied. The price tag for the new law is just $59,000.00 per case. This is just one more example of passing laws for political capital.

A Nashville assistant district  attorney commented in the story that he did not think it would make a difference in gang related drive by shootings. Tennessee does not need to put a new criminal law on the books. Just use the ones we have. If someone shoots into a occupied house , it is called attempted first or second degree murder. It appears Tennessee tries to solve every problem by creating a new criminal law . Tennessee is fast becoming overcriminalized .The Wall Street Journal reports that there are over 4500 federal criminal laws and over 300,000 regulations that carry criminal penalties. The article further reports that the law is eroding the criminal intent element that is required in most crimes . What new criminal laws are on the horizon in Tennessee ?

Tennessee Governor Bill Haslam announced a new plan to increase punishment for certain crimes . One of these proposals is to increase jail time for those convicted of domestic violence.Gov. Haslam based his plan on a recent study that ranked Tennessee fifth in the nation in the  rate its women are murdered by men. The plan seeks mandatory minimum sentences of 45 days in jail for a second domestic violence conviction and a minimum 120 days in jail for a third or more conviction.

Society needs to address the domestic violence issue . However mandatory minimum sentencing is not the answer. Most politicians want to be tough on crime and enact tough laws to make them look good to the public. Two things happen when the government enacts mandatory minimum punishment. First , it takes discretion out of the judges hands in sentencing. By that , most judges want to make a difference and try to be creative with sentencing alternatives like domestic violence counseling. Mandatory minimum punishment takes that away from the court. Secondly , mandatory punishment gives the district attorneys took much power to cram down plea bargains to those accused of a crime . Take a deal avoid jail or go to trial and if you lose visit the jail. There is to much potential for abuse  in making mandatory minimums the answer to all that’s wrong in the criminal justice system.