Advocacy In DUI Cases – 1

APPELLATE ADVOCACY IN DUI AND

DUI RELATED CASES

David L. Raybin 2002

DAVID L. RAYBIN

Raybin & Weissman P.C.

Suite 2200, Fifth Third Center

424 Church Street

Nashville, Tennessee 37219

(615) 256-6666

HWYLAW.COM

INTRODUCTION

A. Why appeal

Help client
Get some respect
Do better second time around
Integrity of system
Change the law, trials have little precedential value — appeals do.

B. Attitude

Spend time looking out windows.
Be aggressive
The other side

C. Know procedure. Appellate courts have procedural problems in many

appeals; do not let the procedural problems detract from the merits of your case.

D. Know the law; your “tools”

E. Know developing issues (waiver)

F. Retroactive application See e.g. Sampson v. State, 553 S.W.2d 345 (insanity).

Discussion of retroactivity Rules: When the Supreme Court releases an opinion involving an entirely new doctrine of law, the Court frequently articulates how that doctrine will impact pending cases and appeals. For example, in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), the Supreme Court discussed a new jury instruction on witness identification. At page 612, the Court held that “this ruling is applicable to cases now on appeal and those cases tried after the release of this opinion.” This meant that the opinion was given “pipeline” application.

In State v. Walker, 905 S.W.2d 554 (Tenn. 1995), the Court held that persons under criminal sentence who present themselves for incarceration but are turned away by the sheriff, may consider the sentence satisfied under certain circumstances. The Supreme Court held, at page 557, that “we are also persuaded that the rule announced today should be prospective only and should apply only to cases tried or retried after the date of this opinion and in cases on appeal in which the issue has already been raised.”

In State v. Enochs, 823 S.W.2d 539 (Tenn. 1991), the Court found that the thirteenth juror rule applied to all cases which were pending on direct review at the time the rule was reinstated and became effective. Lawyers who raised the issue prior to the release of Enochs, obtained a new trial for their clients after Enochs was rendered. See e.g., State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993).

This “pipeline” doctrine is not limited only to criminal cases. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court adopted new rules regarding comparative fault. At page 58, the Court held that the opinion would apply to “all cases tried or retried after the date of this opinion and all cases on appeal in which the comparative fault issue has been raised at an appropriate stage in the litigation.” Identical language can be found in McClung v. Delta Square Partnership, 937 S.W.2d 891, 905 (Tenn. 1996) (landlord liability for crimes committed against innocent third parties by criminals on the premises); Broadwell v. Holmes, 871 S.W.2d 471, 477 (Tenn. 1994) (parental immunity); and Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (the “lex loci delicti” choice of law doctrine in a wrongful death action).

On occasion a Court neglects to articulate how a decision will “run” and must resolve the question in a later appeal:

“We are constrained to note, however, that the absence of language directing the retroactivity of the Jordan decision was a product of oversight rather than the result of a judicial decision to limit Jordan to prospective application only. … We hold that Jordan [loss of consortium damages were recoverable under wrongful death statute] applies retroactively to: (1) all cases tried or retried after the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. We are aware that our holding will require retrial of some cases and the expenditure of additional judicial resources. Still, we cannot perpetuate denial of retroactive application of Jordan when that result was not our intention.”

Hill v. City of Germantown, 31 S.W.3d 234, 240 (Tenn. 2000). More frequently the appellate courts give a new decision pipeline application even without an express decision articulating retroactivity. For example, State v. Rickman, 876 S.W.2d 824 (Tenn. 1994) (limitations on proof-of-other-crimes in child sex abuse cases) did not articulate how it would apply in the future. Yet, the Supreme Court itself applied Rickman to pipeline appeals. See e.g. State v. McCary, 922 S.W.2d 511 (Tenn. 1996), and State v. Dutton, 896 S.W.2d 114 (Tenn. 1995), as did this Court in State v. Woodcock, 922 S.W.2d 904 (Tenn. Crim. App. 1995). See also State v. Stokes, 24 S.W.3d 303 (Tenn.2000) (State v. Burns applied to determine lesser- included offense in case which was in appellate “pipeline” prior to release of Supreme Court’s Burns opinion).

G. Fees for appellate work; client relations

TYPES OF APPEALS

A. Rule 8, T.R.A.P. (bond matters)

B. Rule 3, T.R.A.P. (appeals as of right)

Defendant: conviction, habeas corpus, revocation of probation, extradition and post-conviction; (parole and prison problems go to Ct. of Appeals, Slagle v. Reynolds, 845 S.W.2d 167 (Tenn. 1992).
State: dismissal of indictment, judgment of acquittal, arresting judgment, remanding a child to juvenile court.

C. Rule 37, Tenn. R. Crim. P. (guilty pleas) via Rule 3, T.R.A.P.

Certified question with consent of state (with plea bargain) Rule 37(b)(2)(i), Tenn. R. Crim. P. EXCEPTION : CAN NOT appeal a certified question as of right, where client pleads guilty pursuant to T.C.A. § 40-35-313 ( post-trial diversion). State v Norris, 47 S.W. 3d 457 ( Tenn. Crim App. 2001) (codefendant who took straight probation could appeal and won his search warrant question! )
Certified question without consent of state (no plea bargain) Rule 37(b)(2)(iv), Tenn R. Crim. P.
Certified question: What is it?

(a) Controlling question of law. E.g. State v Norris, 47 S.W. 3d 457 ( Tenn. Crim App. 2001)( search question)

(b) State v. Jennette, 706 S.W.2d 614 (Tenn. 1986) (precisely stated in court’s order, must be dispositive of case)

(d) Wilkes (not certified)

Have a hearing, introduce evidence, have an order, put it in guilty plea order. DISCUSSION: Court of Criminal Appeals of Tennessee, at Knoxville.

STATE v. OGLE. Jan. 17, 2001.Appeal Denied June 4, 2001.

Defendant entered a best interest plea of guilty to vehicular homicide by recklessness. The parties attempted to reserve a certified question of law relating to the destruction of the victim’s vehicle. The defendant contends that because the vehicle was destroyed, a full reconstruction of the accident could not be conducted. Defendant further contends that a reconstruction of the accident would have led to exculpatory evidence. Thus, he argues he was denied a fair trial. Upon our review of the record, we must conclude that this court does not have jurisdiction to address the certified question since the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn.1988). The appeal is, therefore, dismissed. PROCEDURAL BACKGROUND Defendant was indicted in June 1994 for the offenses of vehicular homicide by intoxication and vehicular homicide by recklessness as a result of the death of the victim in a head-on collision on February 23, 1994. After several continuances, the case was set for trial on November 24, 1997. A month prior to the trial date, defense counsel retained an accident reconstructionist. It was then discovered that the victim’s vehicle had been released from a storage facility and, therefore, was not subject to examination by the accident reconstructionist. Defendant moved for dismissal of the indictment due to the destruction of the vehicle while it was under state control. The trial date was continued, and the trial court overruled the motion on July 24, 1998. The case was reset for trial, and on January 11, 2000, after jury selection for the trial had begun, defendant entered a negotiated, best interest plea to vehicular homicide by reckless operation of a vehicle. The transcript of the guilty plea clearly reveals that all parties understood that the guilty plea was conditional upon the reservation of a certified question of law relating to the issue of the destruction of the victim’s vehicle. See Tenn.R.Crim.P. 37(b)(2)(i). Further, the written plea agreement executed by the assistant district attorney general and the defendant on this date specifically refers to the certified question. However, the judgment of conviction entered by the trial court on January 14, 2000, contains the following language: “CERTIFIED QUESTION OF LAW RESERVED FOR APPEAL (SEE SUPPLEMENTAL ORDER).” The judgment of conviction contains no other information relating to the certified question, and no supplemental order was filed on that date. Notice of appeal was filed February 10, 2000. The supplemental “Order Certifying Question” was signed by the trial judge on February 17, 2000, and entered on the same date by the trial court clerk. That order certifies as dispositive the question of whether the defendant would be deprived of a fair trial by the loss of the victim’s vehicle. JURISDICTIONAL ISSUE The state has not raised the issue as to whether the certified question is properly before this court. However, Tenn.R.App.P. 13(b) provides that this court “shall” in all cases consider whether this court has jurisdiction. We must, therefore, determine whether the question has been properly certified, and, if not, whether such a failure deprives us of jurisdiction. In State v. Preston, 759 S.W.2d 647 (Tenn.1988), our Supreme Court made explicit to the bench and bar exactly what the appellate courts require as prerequisites to the consideration of the merits of a certified question of law. These requirements are as follows: Regardless of what has appeared in prior petitions, orders, colloquy in open court or otherwise, the final order or judgment from which the time begins to run to pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question of law reserved by defendant for appellate review and the question of law must be stated so as to clearly identify the scope and the limits of the legal issue reserved. For example, where questions of law involve the validity of searches and the admissibility of statements and confessions, etc., the reasons relied upon by defendant in the trial court at the suppression hearing must be identified in the statement of the certified question of law and review by the appellate courts will be limited to those passed upon by the trial judge and stated in the certified question, absent a constitutional requirement otherwise. Without an explicit statement of the certified question, neither the defendant, the State nor the trial judge can make a meaningful determination of whether the issue sought to be reviewed is dispositive of the case…. Also, the order must state that the certified question was expressly reserved as part of a plea agreement, that the State and the trial judge consented to the reservation and that the State and the trial judge are of the opinion that the question is dispositive of the case…. No issue beyond the scope of the certified question will be considered. Id. at 650 (emphasis added); see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn.Crim.App.1995). Failure to properly reserve a certified question of law pursuant to Preston will result in the dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn.1996). The requirements of Preston were steadfastly reaffirmed in Pendergrass. Id. at 837-38. In Pendergrass, the judgments of conviction entered January 15, 1993, did not make reference to the certified question of law. Notice of appeal was filed February 12, 1993, and on February 19, 1993, the trial court entered an order certifying the question of law as dispositive of the case. Id. at 835-36. The court noted that the judgments of conviction made no reference to the certified question, did not contain an identification of the scope and limits of the legal issues reserved, and did not contain any statement that the certified question was dispositive, all of which are explicitly required by Preston. Id. at 837. The court further found the trial court lost jurisdiction on the date the notice of appeal was filed, and its attempt to properly certify the question several days later was a nullity. Id. at 838. Because the defendant had not complied with all of the requirements of Preston, the court dismissed the appeal. Id.The attempt to certify the question of law in this case was not in compliance with Preston. Although the judgment of conviction made reference to a certified question of law pursuant to a supplemental order, the judgment does not identify the scope of the certified question of law and contains no statement that the question is dispositive. Furthermore, like the subsequent order entered in Pendergrass, the order entered by the trial court in this case was signed and entered more than thirty days after entry of the judgment and after filing of the notice of appeal; thus, it is a nullity. HISTORY OF PRESTON AND TENN.R.CRIM.P. 37 After much discussion, this panel makes the following comments concerning appeals from guilty pleas with certified questions of law pursuant to Tenn.R.Crim.P. 37(b)(2). The rule has a valuable purpose. It allows for the disposition of cases based upon guilty pleas where there is a dispositive pretrial issue in dispute, thereby avoiding the necessity of a trial. The rule itself does not set forth the detailed requirements enumerated by Preston. As the appellate courts have written time and again, the requirements of Preston are extremely clear. See Pendergrass, 937 S.W.2d at 837. In Preston, the supreme court noted that, “[m]ost of the reported and unreported cases seeking the limited appellate review pursuant to Tenn.R.Crim.P. 37 have been dismissed.” Preston, 759 S.W.2d at 650. Preston was decided in 1988 and Pendergrass in 1996, and we regret to observe that, based upon the history of appellate cases, the problems do not appear to have substantially diminished. In many of these cases the state, defendant and trial court have all agreed (as evidenced by the guilty plea transcript) that the question is properly certified, only to have the state correctly argue on appeal that the certification was not in compliance with Preston, requiring dismissal of the appeal. The dismissal of the appeal leads to an unwieldy result. Since the plea was entered conditionally upon the certified question, the defendant has the opportunity to seek post-conviction relief from the conviction and guilty plea. The defendant, state, crime victims, and the trial court are now back to “square one,” in spite of everyone’s original agreement as to the substance of the plea agreement. It is then months or years after the original guilty plea. The defendant may re-enter his plea and properly certify the question back to this court. However, the defendant is not required to do so. Thus, in spite of everyone’s earlier agreement as evidenced by the transcript of the hearing, the parties are left in a quandary and, at the very least, face even more delay. Based upon the documented appellate history of guilty pleas with certified questions of law, we observe that it has become more of a trap than serving its intended purpose. In spite of repeated appellate cautions, the dictates of Preston are simply not being met and, according to its history, will not be met. Along these lines we observe that guilty pleas are often unanticipated until shortly prior to their entry with judgments prepared by the state or trial court and entered without approval by defense counsel. We further note that there is no requirement that either counsel approve the judgment. See Tenn.Sup.Ct.R. 17 (signatures of attorneys “optional”). Unfortunately, it appears there is undue prejudice to the state, crime victims, defendants and all involved in these cases because that which has clearly been agreed upon has not been written on the appropriate document at the appropriate time.

Guilty plea itself

(a) Housler v. State, 749 S.W.2d 758 (all issues regarding the plea can be litigated on direct, very limited on post-conviction).

D. Interlocutory Appeals; Rule 9 & 10, T.R.A.P. (civil & criminal).

Rule 9 with trial judge’s permission

(a) Must seek trial judge’s permission within 30 days of complaining action. Rule 9 Orders must be very specific as to WHY an appeal is required at this time.

(b) Must perfect in appellate court within 10 days of trial judge’s order

Rule 10 without trial judge’s permission. Go right to the appellate court. Very rare.
State’s right

(a) Discovery; State v. Ballard, 714 S.W.2d 284 (mental evaluation of victims)

(b) Granting a new trial; State v. Perry, 740 S.W.2d 723

Defendant’s right

(a) Double jeopardy: Abney, 431 U.S. 651

(b) Place of custody: Grey, 602 S.W.2d 259

(c) Discovery: Gawlas, 614 S.W.2d 74 (denied, informant); Vilvarajah, 735 S.W.2d 837 (granted, defendant’s medical reports)

(d) Suppression of search, confession: Hartsfield, 629 S.W.2d 907 (denied)

(e) Closure: Drake, 701 S.W.2d 604 (denied)

(f) Appointment of lawyer: Huskey v. State, 743 S.W.2d 609 (Rule 10, T.R.A.P. allowed)

(g) Disqualification: Parrot, 919 S.W.2d 60 (allowed)

(h) Pretrial diversion:

(1) Can appeal prior to or after conviction: Rule 38 Tenn. R. Crim. Pro., overruling State v. Wilson, 713 S.W.2d 85

(2) Bring it all up on first shot: Nabb I, 713 S.W.2d 685, Nabb II, 713 S.W.2d 688

PROTECTED RECORD

A. Begin at arrest, keep an “appeal” file

B. Get it in the record!

File exhibits (exhibit A, B, etc.), Cooper, 735 S.W.2d 125 (no search warrant); Rhoden, 739 S.W.2d 6 (tapes)

C. Objection

Object, object, object
How to object: Hammonds, 737 S.W.2d 549 (no off-the-record)
Contemporaneous objection: McGee, 746 S.W.2d 460 (Tenn. 1988) (motion in limine)
Offer of proof: State v. Goad, 707 S.W.2d 846 (Tenn. 1986) (better practice is to present proof); Tenn. Rule Evid. 103(b) (question and answer)
Ground of objection: Tenn. R. Evidence 103(a)(1) (grounds must be stated)

D. Pretrial Litigation

Motions must be on time; Rule 12, Tenn. R. Crim. P.
Litigate to “finality,” : McGee, 746 S.W.2d 460 (Tenn. 1988) (motion in limine)
Defendant can testify without cross on other issues. Rule 104(d) T. R. Evid.

E. Jury Argument, must object.

F. Jury Instructions

Object, special requests required for lesser included crimes.
Exception: Inclusion of bad instruction, Empire, 563 S.W.2d 551 (Tenn. 1978)

G. Sentencing

Presentence report as an exhibit
Sentencing memo ( see sample later in this outline )

H. Motion for a new trial

When to file, Blunkall, 731 S.W.2d 72 (30 days)
Amendments, Butler, 626 S.W.2d 6 (Tenn. 1981) (30 days after denial)
Form of motion: Frazier, 683 S.W.2d 346 (motion must state specific grounds)

See ALSO Fahey v. Eldridge 46 S.W.3d 138(Tenn. 2001):

“SPECIFICITY REQUIREMENTS OF RULE OF APPELLATE PROCEDURE 3(e)

It has long been the rule in this state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the attention of the trial court in a motion for a new trial. …This requirement was initially imposed by this Court to make more efficient the process of reviewing “the ever increasing number of appeals,” and we have recognized that this practice significantly aids the functions of the appellate courts by limiting and defining the issues for review. See Board of Equalization v. Nashville, C. & St. L. Ry., 148 Tenn. 676, 680, 257 S.W. 91, 93 (1923) (noting that this Court “was constrained to exercise its power of prescribing rules of practice, requiring that errors be first assigned in a motion for new trial presented to the trial court, and … limiting the inquiry on appeal to error assigned in the motion”). Moreover, and perhaps most importantly, motions for a new trial also help to ensure that the trial judge might be given an opportunity to consider or to reconsider alleged errors committed during the course of the trial or other matters affecting the jury or the verdict, such as alleged misconduct of jurors, parties, or counsel which either occurred after the trial or could not reasonably have been discovered until after the verdict.

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