The State Supreme Court of Hawaii ruled that a man convicted of punching his stepson should have been allowed to raise parental discipline as a defense in his trial. The trial court rejected that defense because the boy’s nose was broke by the defendant who wanted him to clean a carpet stain. The case is remanded back to the trial court for a new trial.

The defense requested a jury instruction on parental discipline defense . In Hawaii , the law provides such a defense.

In order to invoke the parental discipline defense, a defendant is required to make a showing that the record contained some evidence supporting the following elements:

(1) [the defendant] was a parent, guardian, or other person as described in HRS § 703-309(1); (2) [the defendant] used force against a minor for whose care and supervision he was responsible; (3) his [or her] use of force was with due regard to the age and size of the recipient and reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of misconduct; and (4) the force used was not designed to cause, or known to create a risk of causing, substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
Tennessee has no such defense that is contained in the Tennessee Pattern Jury Instructions.

                    

New York lawyer Scott Greenfield writes a great blog on criminal issues as well as other interesting topics . I highly recommend his blog Simple Justice.  Greenfield ‘s topic today was the use of a mother to get  a confession.

Jason Gonzalez was arrested for murder . Mr.Gonzalez refused to give a statement and exercised his constitutional right to remain silent . One key point to remember is your Miranda rights do not attach unless you are placed into custody. In this case , he was clearly in custody since he was taken to jail . The police did not want to give up the hopes of obtaining a confession . So , they enlisted a person Mr. Gonzalez could trust and confide in to tell his story to . The person was his mother . Good old mom wore  video and recording equipment in to visit her son where a full blown confession was made and later made to detectives as well, Attorneys for Mr. Gonzalez are now trying to suppress the confession.

The defense theory was that mom was an agent of the state and used her power of influence to circumvent Mr.Gonzalez ‘s constitutional protections.

How would this play out in under Tennessee law ?

The main question is whether the behavior of law enforcement officials served to overbear the defendant’s will to resist . See State of Tennessee v. Kelly 603 S.W. 2d. 726.

So can a man charged with a crime resist confiding in his mother  . No. Does this apply to jailhouse rats who try to befriend someone in order to get himself a better deal . Maybe..
 

           

Nashville’s DUI officers rely heavily on the breath alcohol test . If you submit to a breath alcohol test , do you have a right to an independent test blood test for alcohol or drug content. ?

Yes. Tennessee Code Annotated 55-10-410 mandates that a person charged with driving under the influence " shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of that person’s own expense."

Now what happens if you request a blood sample and they refused to give you an independent sample or they lost the sample ?

Two Tennessee Court of Appeal cases have held that failure to provide an independent blood alcohol test is a violation of the defendant’s right to due process of law . In State of Tennessee v.Geselbracht , the court held that suppressing the blood alcohol test was not a sufficient remedy and that the appropriate remedy is a dismissal of the charges .

If you decide to take a breath alcohol test , always demand an independent test.

 

 

 

 

 

Today’s post is was written by Thomas Hutto ,a third year law student at the Nashville School of Law . Thomas and I met when he started following the www.Nashvillecriminallawreport.com . This is his first guest post and I hope you enjoy it . He has a couple of more that will be appearing .

 

What happens when I say I’m thinking about criminal law?

"Really? But, you’d have to defend criminals!" That’s the first thing I usually hear.

"How could you defend someone accused of X?" is a close second.

I’m not so young and naïve as to believe that everyone is innocent until proven guilty. I am idealistic enough to think that we must force the government to prove them guilty.

Some people commit crimes, some people are accused of a crime. These two groups overlap. There are police officers and prosecutors who try to make the crime fit the facts and then make those facts fit the accused. They have their jobs, I’ll have mine. Everyone has constitutional rights. The state should not violate them, but they do. If the government is willing to violate and suppress the rights of people accused of a crime, they are more than willing to violate yours. In defending the rights of the accused, criminal lawyers defend you too.

Thomas is a third year law student at the Nashville School of Law.


Richard Wilson of the Nashville Metro Police Department was indicted by a Federal Grand Jury for allegations that he was involved in distributing cocaine , Mr. Wilson has been decommissioned as a police officer pending the outcome of his criminal charges. Mr. Wilson has been on the DUI Enforcement Unit of the Nashville Police Department for the last year an a half.

My guess his pending DUI cases may be impacted by his arrest.

                              

Congressman Anthony Weiner is all over the news with his Twitter postings . Now , it appears he is under investigation for sexting with a 17 year old girl in Delaware . Is sexting with a minor illegal  under Tennessee criminal law ? Are there consequences in Tennessee for an adult to sext with a minor .

What is sexting ? Sexting is a term coined by the media which generally refers to the sending , receiving , or forwarding of sexually suggestive nude photos or nearly nude photos .

Is sexting illegal in Tennessee ? Not yet for consenting adults . The problem is when one sends nude images to a minor or receives nude images of a minor . According to one study , 8 out of 10 sexters are under 18 .

 Two potential criminal charges could be possible for the act of sexting with a minor . First , one could be charged with contributing with the delinquency of a minor. Secondly , one could be charged with sexual exploitation of minor which is a serious charge.

Warning , sexting may be dangerous to your health or your freedom.

After court today  in Hickman County Tennessee , I stopped for lunch at Breece’s Cafe  in Centerville , Tn, and picked up a copy of the Hickman County Times . By the way , Breece’s is a must and try the blackberry pie . The article that grabbed my attention was a cocaine case .

A California man was sentenced to 15 years in jail last week. According to affidavits filed by the 21st Judicial Task Force , Mr.Jeff Bryant was stopped because he was following a tractor-trailer less than two vehicle lengths. Following too closely is a traffic offense under Tennessee law . After  Mr. Bryant was stopped , He consented to a search of his car .Over 27 ounces of cocaine , some marijuana , and a firearm were found in the car . It appears the main defense to the charge was that the traffic stop was illegal. The court denied the defendant’s motion to suppress the evidence due to a bad traffic stop.

Mr. Bryant was sentenced to serve 15 years in prison. Possession , sell , delivery or manufacture of more than 300 grams of cocaine carries a 15 to 25 years in prison as a Range I offender .

It appears that Mr. Bryant was stopped by a drug interdiction unit that operates on Interstate 40.

The important lesson is that Mr. Bryant failed to exercise one of his basic constitutional rights . He could have refused the search. However , he consented to the search of his vehicle . Failing to exercise his constitutional rights cost him 15 years to be served at the Tennessee Department of Corrections .

What is the punishment for aggravated sexual battery under Tennessee criminal law ?

 Aggravated sexual battery is a Class B felony in Tennessee . The full range of punishment is 8 to 30 years in jail . The true length of the prison sentence depends on the number of felony convictions that one has on their record.The standard Range I sentence for aggravated sexual battery is 8 to 12 years . A standard Range I offender has less than two convictions. You are not eligible for probation if convicted of aggravated sexual battery. You  must serve at least 85% of the sentence before you are eligible for parole .

Sometimes those charged with a crime try to avoid getting arrested . My advice is to hire a criminal defense lawyer and turn yourself in to law enforcement .There are several tactical reasons to so and they can  all help your case.

First , turning yourself in sometimes result in a lower bail bond being set . When I go with a client to turn themselves into jail ,  the magistrate takes that fact  into account.  You turned yourself in and have a lawyer ready to help you  is powerful . In most instances this is a evidence that you will show up to court since you have hired a lawyer.

Secondly , it can help at sentencing It is not a specific mitigating factor but I think district attorneys and judges both consider this fact.

Third , you avoid the flight instruction . In my last two murder trials the state has attempted to have the court issue a flight instruction . Under Tennessee law , the State of Tennessee can ask the court to instruct the jury on the defendant’s flight or leaving  the scene of the crime. Under the flight instruction , the defendant must have left the scene and evaded arrest or concealed themselves or left the community.If the court instructs the jury on flight , it allows the jury to consider the defendant’s flight as raising an inference of guilt .

So , the bottom line is you should always turn yourself in for these and other reasons.

In my last two trials , the court granted one such request and denied the other . In my last two posts on " Lessons From Trial "  I intend to discuss Rule 803 (23) of the Tennessee rules of evidence and  the use of cell phone towers in proving location..

Can intoxication be a defense to a first degree murder case ?  It can be a defense to one element of the case . In most criminal cases , the State of Tennessee must prove the Mens Rea  or criminal intent of the defendant’s mind. In a first degree murder case , the state must prove the murder was the result of a premeditated and intentional killing of another .

Tennessee Code Annotated 39-11-503 provides that intoxication is admissible to negate a culpable mental state . It is not an absolute defense , but it could lesson a first degree murder charge down to a lessor included offense . The intoxication defense does not apply if the mental state is reckless.

In investigating a case , it is important if the person was under the influence of something at the time the crime happened.

In a first degree murder case , I tried a couple of years ago in Gallatin , Tennessee . Our defense was twofold . We admitted the client killed the person since there were several eyewitnesses to the murder , but we presented evidence that he was under strong provocation and he was intoxicated to the degree he did not appreciate the the wrongfulness of his conduct.  The jury agreed with our theory of the case. In this case , not guilty of first degree murder but guilty of reckless homicide. the defense saved my client a life sentence.

Warning. Be careful using this defense. One must admit to being there or committing the murder for this defense to be effective. You must have one central theme to defending the case .