NOTES TO DECISIONS

1. Substance Stated and Commented on.

The substance of Tenn. Const. art. I, § 1 is stated and commented on in Ridley v. Sherbrook, 43 Tenn. 569, 1866 Tenn. LEXIS 88 (1866); State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

2. Power of Government.

Every independent community or government has the right to regulate its own concerns, to make what laws it pleases; to abrogate and repeal existing laws previously made, and enact new ones respecting the same matter. This is declared by Tenn. Const. art. I, § 1 and by the preamble. Bashaw v. State, 9 Tenn. 176, 9 Tenn. 177, 1829 Tenn. LEXIS 36 (1829).

Under Tenn. Const. art. I, § 1 all power is inherent in the people and they have the right to alter, reform or abolish the government in such manner as they may think proper with the only limitation being the provisions of Tenn. Const. art. XI, § 3 relating to method of amendment. West v. Carr, 212 Tenn. 367, 370 S.W.2d 469, 1963 Tenn. LEXIS 430 (1963), dismissed, 378 U.S. 557, 84 S. Ct. 1908, 12 L. Ed. 2d 1034, 1964 U.S. LEXIS 843 (1964); Illustration Design Group, Inc. v. McCanless, 224 Tenn. 284, 454 S.W.2d 115, 1970 Tenn. LEXIS 325 (1970), overruled in part, Snow v. Memphis, 527 S.W.2d 55, 1975 Tenn. LEXIS 631, 1975 Tenn. LEXIS 632 (Tenn. 1975).

It is fundamental law of this state that the supreme authority rests in the people and it is their intent in adopting a constitutional provision that must prevail. Williams v. Carr, 218 Tenn. 564, 404 S.W.2d 522, 1966 Tenn. LEXIS 589 (1966).

3. Function of Legislature and the Judiciary.

If it be conceded that all power is inherent in the people, and their voice is heard through the legislature, their voice must be consistent with the constitution and that general law of the land which is made to reach all alike. The judicial power is an independent power, and, where it has jurisdiction, it is a sovereign power, just as much as the legislature itself. When one of the kings of England wished to confer with the judges touching a case to come before them, he was refused admittance. Whenever the judges of this country cannot stand up as firmly and independently before the people as the judges of England did before their sovereign, then there is an end of the administration of the law, and a reign of terror at hand. Fisher's Negroes v. Dabbs, 14 Tenn. 119, 1834 Tenn. LEXIS 59 (Tenn. Mar. 1834).

4. Legislative Authority under Constitution.

The power to alter, reform or abolish the constitution of Tennessee resides in the people, not in the legislature. The people are possessed with ultimate sovereignty and are the source of all state authority and they have the ultimate power to control and alter their constitution, subject only to such limitations and restraints as may be imposed by the constitution of the United States. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 1949 Tenn. LEXIS 411 (1949).

Acts 1949, ch. 49, providing for a special election to determine whether a convention should be called to specify amendments of constitution was not unconstitutional on the ground that the legislature could not limit the amendments to be passed on by convention since legislature was authorized by Tenn. Const. art. XI, § 3 to call a convention to “alter, reform or abolish the Constitution” and if people voted in favor of convention for purposes mentioned the people in effect limited the work of the convention. Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 1949 Tenn. LEXIS 411 (1949).

5. Limitations upon Legislative Power.

Many limitations and restrictions upon the legislative power are carefully and emphatically prescribed and set forth in Tenn. Const. art. I, § 1. Louisville & N. R. Co. v. County Court of Davidson, 33 Tenn. 637, 1854 Tenn. LEXIS 81 (1854).

6. Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

The disclosure of adoption records in accord with T.C.A. § 36-1-127 does not violate the constitutional right to privacy; it does not impede a birth parent's freedom to determine whether to raise a family, nor does it disrupt both biological and adoptive families by releasing identifying information previously unavailable. Doe v. Sundquist, 2 S.W.3d 919, 1999 Tenn. LEXIS 429 (Tenn. 1999).

Although Tennessee's right of privacy incorporates some of the features of the right to privacy under the federal constitution, the Tennessee supreme court is free to extend greater protection in applying the state constitution. Doe v. Sundquist, 2 S.W.3d 919, 1999 Tenn. LEXIS 429 (Tenn. 1999).

7. Procreation.

The right of procreation is a vital part of an individual's right to privacy. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

8. State Interest.

The state's interest in the potential life of preembryos was not sufficient to justify any infringement upon the freedom of ex-spouses to make their own decisions as to whether to allow a process to continue that might have resulted in their becoming parents. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

9. Supervisory Power of Supreme Court.

Supreme court has supervisory power to insure that fairness and justice are afforded to defendants by the trial court in criminal cases. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 1959 Tenn. LEXIS 390 (1959).

10. Constitutional Convention.

Even if the evidence should show conclusively that legislative proposal for limited constitutional convention was not presented to the governor, court was unwilling at late date to invalidate the amendments to the constitution which were proposed by a convention called upon approval of the voters of the state who also gave final approval to the amendments, for judicial interference with the orderly framework of government as approved by the voters of the state is simply not justified by an omission which cannot be considered to have interfered with the free exercise of the rights of the people of the state to change the form of their government. Crenshaw v. Blanton, 606 S.W.2d 285, 1980 Tenn. App. LEXIS 327 (Tenn. Ct. App. 1980), appeal dismissed, 449 U.S. 914, 101 S. Ct. 310, 66 L. Ed. 2d 142, 1980 U.S. LEXIS 3561 (1980).

11. Annexation.

The provisions of Tenn. Const. art. I, § 1 and Tenn. Const. art. II, § 16 do not mean that individual citizens, members of a community, or inhabitants of an area to be annexed can thwart or avoid other provisions of the constitution because of their dissatisfaction with statutory authority directed or permitted under its terms. Vollmer v. Memphis, 792 S.W.2d 446, 1990 Tenn. LEXIS 208 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 269 (Tenn. July 2, 1990).

12. Woman's Right to Terminate Pregnancy.

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by the Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

13. Police Power.

Where a teacher alleged that the teacher's union's violations were “under color of state law,” the trial court erred when it dismissed the teacher's suit against the teacher's union for failure to state a claim; although the complaint that part of his union dues were being used in violation of, inter alia, his rights to free speech, free assembly and petition, and freedom of religion, was premised on state constitutional violations, when viewed under the Education Professional Negotiations Act (EPNA), T.C.A. § 49-5-601 — T.C.A. § 49-5-613, the complaint could also have been construed to have alleged other wrongs upon which relief could have been granted. The EPNA could have been interpreted to mean that a voluntary donation of a portion of the dues collected from the teachers exceeded the authority granted to the collective bargaining agent. Esquinance v. Polk County Educ. Ass'n, 195 S.W.3d 35, 2005 Tenn. App. LEXIS 446 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 31 (Tenn. 2006) .

NOTES TO DECISIONS

1. Construction.

Tennessee Const. art. I, § 2 recognizes that our government serves at the will of the people of Tennessee, and expressly advocates active resistance against the government when government no longer functions to serve the people's needs. There is no better statement of the state constitution's concept of liberty than this audacious empowerment of Tennesseans to forcibly dissolve the very government established but one article later in the constitution. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

2. Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

NOTES TO DECISIONS

1. Compared to Federal Constitution.

The language of Tenn. Const. art. 1, § 3, when compared to the guarantee of religious freedom contained in the federal constitution, is a stronger guarantee of religious freedom. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

The Tennessee supreme court has never held that Tenn. Const. art. I, § 3's protection of the right of conscience and free exercise of religion are more expansive than the free exercise clause of U.S. Const. amend. 1; the degree of protection that Tenn. Const. art. I, § 3 provided for the religious freedoms of Native Americans seeking to prevent the disturbance of a traditional burial ground was the same as that provided by the free exercise clause of U.S. Const. amend. 1. State ex rel. Comm'r of Transp. v. Medicine Bird, 63 S.W.3d 734, 2001 Tenn. App. LEXIS 485 (Tenn. Ct. App. 2001).

Where plaintiff alleged that Tenn. Const. art. I, § 3 and U.S. Const. amend. 1 were violated by a resolution that would appropriate city funds to renovate two churches that were claimed to have historical significance, a federal district court remanded the state claim to state court pursuant to the Pullman doctrine of abstention. No Tennessee court had passed upon whether Tenn. Const. art. I, § 3 prevented a city from expending funds collected through taxes to repair a place of worship that claimed historical significance, and a ruling that the city's resolution violated the state constitution would terminate the controversy. Entman v. City of Memphis, 341 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 25294 (W.D. Tenn. 2004).

Where plaintiff alleged that Tenn. Const. art. I, § 3 and U.S. Const. amend. 1 were violated by a resolution that would appropriate city funds to renovate two churches that were claimed to have historical significance, a federal district court remanded the state claim to state court pursuant to the Pullman doctrine of abstention. The contention that Tenn. Const. art. I, § 3 was parallel to U.S. Const. amend. 1 was rejected because the constitutional provisions contained markedly different language and the state courts had concluded that the prohibition against governmental establishment of religion contained Tenn. Const. art. I, § 3 provides broader protection than U.S. Const. amend. 1. Entman v. City of Memphis, 341 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 25294 (W.D. Tenn. 2004).

2. Right to Worship or Transact Church Business.

The right to worship God according to the dictates of conscience, given by Tenn. Const. art. I, § 3, is protected by many stringent statutes, broadly and liberally construed by the courts, and extended to a religious congregation or assembly engaged in public worship or business connected with their interests as a church. Hollingsworth v. State, 37 Tenn. 518, 1858 Tenn. LEXIS 53 (1858).

3. “Conscience” Defined.

Conscience is that moral sense in man which dictates to him right and wrong. Harden v. State, 188 Tenn. 17, 216 S.W.2d 708, 1948 Tenn. LEXIS 488 (1948).

4. Limitations on Right to Practice Religious Belief.

The right to practice a religious belief is limited by other recognized powers, equally precious to mankind. One of those rights equally precious is that of society's protection from a practice, religious or otherwise, which is dangerous to life and health. Harden v. State, 188 Tenn. 17, 216 S.W.2d 708, 1948 Tenn. LEXIS 488 (1948).

Conviction and sentencing to the penitentiary for manufacture and possession of marihuana of members of a group using marihuana in religious observances did not violate their rights to freedom of worship. Gaskin v. State, 490 S.W.2d 521, 1973 Tenn. LEXIS 524 (Tenn. 1973), appeal dismissed, Gaskin v. Tennessee, 414 U.S. 886, 94 S. Ct. 221, 38 L. Ed. 2d 133, 1973 U.S. LEXIS 937 (1973).

To be constitutionally protected under Tenn. Const. art. I, § 3 and U.S. Const. amend. 1, it is not necessary that a religious group be numerically large, conventional, or that its tenets and practices lie in accord with prevailing views, and any religious group has an absolute and unbridled right to pursue any practice of its own choosing; but, although the right to believe is absolute, the right to act is subject to reasonable regulation to protect a compelling state interest, reasonably enforced, and the free exercise of religion does not include the right to violate statutory law, commit or maintain a nuisance, or immunize against lawless conduct, and must give way where the state's interest is compelling and substantial and the danger clear, present and so grave as to endanger paramount public interests. State ex rel. Swann v. Pack, 527 S.W.2d 99, 1975 Tenn. LEXIS 640 (Tenn. 1975), cert. denied, Pack v. Tennessee, 424 U.S. 954, 96 S. Ct. 1429, 47 L. Ed. 2d 360, 1976 U.S. LEXIS 212 (1976).

The state has the right to reasonably restrict the religious practices of its representatives in the performance of their state duties. Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 1983 Tenn. App. LEXIS 710 (Tenn. Ct. App. 1983).

Excluding from capital case juries persons whose religious beliefs prevent or substantively impair their ability to be impartial does not violate the jurors' freedom of conscience. Wolf v. Sundquist, 955 S.W.2d 626, 1997 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1997).

5. Atheism No Cause for Challenge of Juror After Sworn.

The constitution, neither in Tenn. Const. art. I, § 3, nor in Tenn. Const. art. I, § 4, nor in Tenn. Const. art. IX, § 2 nor in any other part, has any particular or direct bearing on the subject of the disqualification of a juror on account of his being an atheist, and a juror cannot be challenged after he is sworn, because he is an atheist, though previously unknown to the prisoner, and this rule is true as to any cause, propter defectum. McClure v. State, 9 Tenn. 206, 1829 Tenn. LEXIS 43 (1829). See Tenn. Const. art. I, § 6.

6. Effect of Section on Trusts.

By Tenn. Const. art. I, § 3, the whole distinction existing in England between trusts, charitable and superstitious, is broken down; and the ground over which charitable trusts are to be spread is tremendously extended, if the English practice upon the subject be adopted. But it is held that a general indefinite charitable bequest, without trustees, cannot be sustained and enforced by the chancery court in this state, and the English practice is not adopted. Green v. Allen, 24 Tenn. 170, 1844 Tenn. LEXIS 52 (1844).

Church corporation charter stating as purpose of organization that it was to be a local church of the Presbyterian Church in the United States created an implied trust in favor of the general church of property conveyed to the corporation; accordingly, such property would go to the general church when the local church withdrew from the general organization. This decision of the court did not offend the constitution. Fairmount Presbyterian Church, Inc. v. Presbytery of Holston, 531 S.W.2d 301, 1975 Tenn. App. LEXIS 169 (Tenn. Ct. App. 1975).

7. Schools.

The reading of a verse in the Bible without comment in the public schools, the same verse not to be repeated more often than every thirty days, the singing of some inspiring song, and the repeating of the Lord's Prayer, is not a violation of Tenn. Const. art. I, § 3. Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718, 1956 Tenn. LEXIS 368 (1956).

It is beyond the scope and authority of school boards and the teachers in the public schools to conduct a program of education in the Bible and to undertake to explain the meaning of any chapter or verse in either the Old or the New Testament. Carden v. Bland, 199 Tenn. 665, 288 S.W.2d 718, 1956 Tenn. LEXIS 368 (1956).

Awarding academic degrees is a secular activity; therefore, requirement that a theological school comply with the Postsecondary Education Authorization Act, title 49, ch. 7, part 20, or cease granting degrees resulted from a legitimate state function and not from any state regulation of the school's religious functions. State ex rel. McLemore v. Clarksville School of Theology, 636 S.W.2d 706, 1982 Tenn. LEXIS 426 (Tenn. 1982).

8. Health Regulations.

Regulation for county board of health requiring children to be immunized against paralytic polio did not violate Tenn. Const. art. I, § 3. Gamble v. State, 206 Tenn. 376, 333 S.W.2d 816, 1960 Tenn. LEXIS 373 (1960).

9. Blood Samples.

Sample of blood could be withdrawn from defendant in custody, for the purpose of determining whether defendant was infected with virus indicating AIDS, over alleged religious beliefs and convictions of defendant, where defendant stated he suffered from AIDS, the taking of the sample was not part of random blood sampling, and evidence showed the sheriff and public health officials had reasonable cause to carry out the test; alleged religious beliefs or convictions of defendant had to yield to concerns for public safety and welfare. Haywood County v. Hudson, 740 S.W.2d 718, 1987 Tenn. LEXIS 1015 (Tenn. 1987).

10. Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

Although Tennessee's right of privacy incorporates some of the features of the right to privacy under the federal constitution, the Tennessee supreme court is free to extend greater protection in applying the state constitution. Doe v. Sundquist, 2 S.W.3d 919, 1999 Tenn. LEXIS 429 (Tenn. 1999).

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

11. Driver's License.

Statute requiring a social security number for a driver's license application and renewal did not violate the free exercise clause of U.S. Const. amend. 1 or Tenn. Const. art. I, § 3. State v. Loudon, 857 S.W.2d 878, 1993 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. 1993).

12. Judicial Proceedings on Sunday.

The common law rule prohibiting judicial activities on Sunday was not based solely on religious grounds, nor could it be without violating Tenn. Const. art. I, § 3. State v. King, 40 S.W.3d 442, 2001 Tenn. LEXIS 56 (Tenn. 2001), rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 121 (Tenn. Feb. 20, 2001).

When determining whether to permit judicial proceedings on Sunday, the trial court, in its discretion, must respect and accommodate the genuinely-held religious view of any litigant, witness, juror or attorney. State v. King, 40 S.W.3d 442, 2001 Tenn. LEXIS 56 (Tenn. 2001), rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 121 (Tenn. Feb. 20, 2001).

13. Sunday Sales of Alcoholic Beverages.

City ordinance prohibiting the sale of beer on Sunday was not a religious preference that violated Tenn. Const. art. I, § 3. Martin v. Beer Bd., 908 S.W.2d 941, 1995 Tenn. App. LEXIS 271 (Tenn. Ct. App. 1995).

14. Establishment Clause.

Although the friendship bell erected in city park had secular significance in Japanese culture, it also carried strong Buddhist connotations; therefore, the bell qualified as a religious symbol for the purpose of establishment clause analysis. Brooks v. City of Oak Ridge, 222 F.3d 259, 2000 FED App. 243P, 2000 U.S. App. LEXIS 17510 (6th Cir. 2000), cert. denied, 531 U.S. 1152, 121 S. Ct. 1097, 148 L. Ed. 2d 970, 2001 U.S. LEXIS 1228 (2001).

City's display of the friendship bell did not violate the establishment clause of the United States constitution or Tenn. Const. art. I, § 3, where city's purpose in adopting the friendship bell was secular, the reasonable observer would not understand the bell to convey the message that the city government endorses Buddhism, and display of the bell did not entail impermissible entanglement with religion. Brooks v. City of Oak Ridge, 222 F.3d 259, 2000 FED App. 243P, 2000 U.S. App. LEXIS 17510 (6th Cir. 2000), cert. denied, 531 U.S. 1152, 121 S. Ct. 1097, 148 L. Ed. 2d 970, 2001 U.S. LEXIS 1228 (2001).

Where a teacher alleged that the teacher's union's violations were “under color of state law,” the trial court erred when it dismissed the teacher's suit against the teacher's union for failure to state a claim; although the complaint that part of his union dues were being used in violation of, inter alia, his rights to free speech, free assembly and petition, and freedom of religion, was premised on state constitutional violations, when viewed under the Education Professional Negotiations Act (EPNA), T.C.A. § 49-5-601 — T.C.A. § 49-5-613, the complaint could also have been construed to have alleged other wrongs upon which relief could have been granted. The EPNA could have been interpreted to mean that a voluntary donation of a portion of the dues collected from the teachers exceeded the authority granted to the collective bargaining agent. Esquinance v. Polk County Educ. Ass'n, 195 S.W.3d 35, 2005 Tenn. App. LEXIS 446 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 31 (Tenn. 2006) .

15. Defamation Actions.

Short time after pastor was terminated, certain church members or officers were alleged to have referred to the pastor as a “witch doctor,” a “voodoo preacher,” and a “dog”; whether or not the statements were justified, because the pastor's complaint alleged that said slanderous statements were made outside the confines of the church, and in front of other nonparty church members, local law enforcement, and members of the community, the trial court erred in finding the statements by said church members were too closely entangled with the decision to terminate the pastor's employment (ecclesiastical workings of the church), to treat them as a civil wrong, and to conclude that it lacked subject matter jurisdiction over the matter. Ausley v. Shaw, 193 S.W.3d 892, 2005 Tenn. App. LEXIS 709 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 351 (Tenn. 2006).

NOTES TO DECISIONS

1. Right to Question Validity of Statutes.

The persons appointed by the governor as members of the state board of elections under an original statute, Acts 1907, ch. 435, cannot, in proceedings to establish their right to the office as against the persons holding such office under an amendatory statute, Acts 1909, ch. 103, demand or call for a determination of the question as to the constitutionality of the third and fourth sections of such amendatory statute, which were assailed upon the ground that they impose a political test as a qualification for office in violation of Tenn. Const. art. I, § 4, prohibiting a political test, other than an oath to support the federal and state constitutions, as a qualification for office, where the alleged unconstitutionality of those sections, if conceded, would not render the whole amendatory act void, but only such sections as separable parts of the act; for such contesting parties are not interested in these particular amendments as taxpayers, because no burdens are imposed by them; nor as citizens, because they are not affected in any way not common to all the citizens of the state. Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, 1909 Tenn. LEXIS 32 (1910), on the last point in this note.

2. Validity of Particular Statutes.

3. —Provision for Body Members of Conflicting Politics.

A statute, the purpose of which is to secure the appointment of persons who are not all of the same political views, and thus provide for a representation in the body so appointed of different and probably conflicting interests, does not, because it carries such a purpose into execution, violate either the letter or the spirit of the constitution. Marshall v. Burke, 158 Tenn. 133, 11 S.W.2d 688, 1928 Tenn. LEXIS 133 (1928).

4. —Crime Commission — Excluding Public Officials.

Provisions of Acts 1937 (3rd E.S.), ch. 13 (repealed) creating a crime commission to examine crime situation did not violate Tenn. Const. art. I, § 4, although it excluded public officials from membership thereon. Joyner v. Priest, 173 Tenn. 320, 117 S.W.2d 9, 1937 Tenn. LEXIS 29 (1938).

NOTES TO DECISIONS

1. Construction.

Tenn. Const. art. I, § 5 and Tenn. Const. art. IV, § 1 must be read as in pari materia, and these two sections must be read in connection with Tenn. Const. art. II, § 29. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417, 1917 Tenn. LEXIS 54 (1917).

The declaration of the right of universal suffrage is self executing in that any citizen may rely upon it independently of any legislative enactment; however the exception to universal suffrage is expressly dependent upon legislative action. Crutchfield v. Collins, 607 S.W.2d 478, 1980 Tenn. App. LEXIS 387 (Tenn. Ct. App. 1980), superseded by statute as stated in, Taylor v. Neil, — S.W.2d —, 1993 Tenn. App. LEXIS 195 (Tenn. Ct. App. Mar. 17, 1993).

2. Meaning of Terms.

Tenn. Const. art. I, § 5 and various statutes show that the meaning of “conviction” as used in Tenn. Const. art. III, § 6, empowering the governor to pardon after conviction, means verdict of guilty and not judgment or sentence. State ex rel. Barnes v. Garrett, 135 Tenn. 617, 188 S.W. 58, 1915 Tenn. LEXIS 199, L.R.A. (n.s.) 1917B567 (1915).

Phrase previously ascertained and declared by law, relating to infamous crimes, proscribes the general assembly from retroactively disenfranchising convicted felons who have never been adjudged infamous, and provisions of §§ 2-2-139 and 2-19-143 attempting to do so are unconstitutional. Gaskin v. Collins, 661 S.W.2d 865, 1983 Tenn. LEXIS 751 (Tenn. 1983).

3. Right of Suffrage — Elections Covered.

The right of suffrage “hereinafter declared,” referred to in Tenn. Const. art. I, § 5, will be found in Tenn. Const. art. IV, and especially in the first section thereof. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

The compulsory primary election law (Acts 1909, ch. 102), establishing legalized compulsory primary elections for political nominations, did not provide for “elections” within the meaning of the suffrage and election provisions of Tenn. Const. art. I, § 5, and Tenn. Const. art. IV, § 1, and it is in the competency of the legislature to pass such an act, and it will be valid, if not in violation of other constitutional provisions; for the primary election is simply a substitution for the caucus or convention, and in reality is not an election, but merely a nominating device. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

But such statute was held to be unconstitutional upon other grounds. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

Tenn. Const. art. I, § 5 applies only to the class of elections stated in Tenn. Const. art. IV, § 1, providing that every male of certain qualifications may vote for members of the general assembly and other civil officers for the county or district in which he resides, and not to an election to determine whether a county shall issue bonds for highways. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417, 1917 Tenn. LEXIS 54 (1917).

The right of suffrage which this section declares shall be “free and equal” is the right it refers to as “hereinafter declared,” meaning as declared in Tenn. Const. art. IV, § 1, which does not mention elections to determine whether a county shall issue bonds for highways. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417, 1917 Tenn. LEXIS 54 (1917).

4. Extent of Legislative Control.

The legislature generally has the right to determine the qualifications of the voters and regulate the conduct of the election, but this right of control does not and cannot go beyond the limitation expressed in Tenn. Const. art. I, § 5 and applies only to the class of elections enumerated in Tenn. Const. art. IV, § 1. Trotter v. City of Maryville, 191 Tenn. 510, 235 S.W.2d 13, 1950 Tenn. LEXIS 465 (1950).

Registered voters without special vulnerability to COVID-19 were unlikely to succeed on their claims that the State's construction of T.C.A. § 2-6-201(5)(C) and (D) violated Tenn. Const. art. 1, § 5, where the burden on the right to vote was moderate given that the risk for in-person voting was significantly less than for those vulnerable to the virus, and when weighed against the State's interests in voter fraud prevention, fiscal responsibility, and feasibility, the moderate burden placed on the right to vote was justified. Fisher v. Hargett, — S.W.3d —, 2020 Tenn. LEXIS 283 (Tenn. Aug. 5, 2020).

5. Unconstitutional Statutory Restriction of Elective Franchise.

Acts 1866-1867, ch. 36, § 4, and Acts 1867-1868, ch. 52, to the extent of authorizing the governor to set aside the registration of voters in any county, “where it shall be made to appear, to the satisfaction of the governor, that frauds and irregularities have intervened in the registration of the voters of such county,” are repugnant to that portion of the constitution that is expressly ordained to secure to the people the right to elect the officers of the government. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

6. Woman Suffrage Law — Validity.

In an opinion enumerating and discussing the various suffrage clauses of the constitution, the Woman's Suffrage Law, Acts 1919, ch. 139, authorizing women to vote at certain designated elections, was upheld as valid. Vertrees v. State Board of Elections, 141 Tenn. 645, 214 S.W. 737, 1919 Tenn. LEXIS 17 (1919).

7. Exclusion of Criminals.

A state may constitutionally exclude some or all convicted felons from the franchise. Tate v. Collins, 496 F. Supp. 205, 1980 U.S. Dist. LEXIS 13354 (W.D. Tenn. 1980); Tate v. Collins, 622 F. Supp. 1409 (W.D. Tenn. 1985).

There is no authorization for deprivation of voting rights of any citizen convicted of an “infamous crime” since the 1972 amendment of § 40-20-112, which deleted a provision requiring disqualification from voting as part of certain judgments of conviction. Crutchfield v. Collins, 607 S.W.2d 478, 1980 Tenn. App. LEXIS 387 (Tenn. Ct. App. 1980), superseded by statute as stated in, Taylor v. Neil, — S.W.2d —, 1993 Tenn. App. LEXIS 195 (Tenn. Ct. App. Mar. 17, 1993).

Provisions of (former version of) § 2-6-102 expressly prohibiting incarcerated persons from utilizing the absentee ballot denied those incarcerated persons who had not been convicted of an infamous crime and who were otherwise entitled to vote equal protection of the laws guaranteed by U.S. Const. amend. 14. Tate v. Collins, 496 F. Supp. 205, 1980 U.S. Dist. LEXIS 13354 (W.D. Tenn. 1980); Tate v. Collins, 622 F. Supp. 1409 (W.D. Tenn. 1985).

Although there is a significantly higher number of blacks convicted of felonies than whites, the Tennessee Voting Rights Act, T.C.A. § 2-19-143, which disenfranchises felons, does not result in the unlawful dilution of the black vote in violation of the federal constitution or the federal Voting Rights Act, and Tennessee may disqualify convicted felons from the voting public without unlawfully interfering with the equal opportunity of blacks to participate in the political process and to elect representatives of their choice. Wesley v. Collins, 605 F. Supp. 802, 1985 U.S. Dist. LEXIS 22215 (M.D. Tenn. 1985), aff'd, 791 F.2d 1255, 1986 U.S. App. LEXIS 25759 (6th Cir. 1986).

Where homicide was not a crime of infamy at the time petitioner committed the offense, the trial court lacked statutory authority to declare petitioner infamous; the resulting disenfranchisement of petitioner under Tenn. Const. art. I, § 5 qualified as a restraint on liberty and therefore he was entitled to limited habeas corpus relief under Tenn. Const. art. I, § 15. May v. Carlton, 245 S.W.3d 340, 2008 Tenn. LEXIS 10 (Tenn. Jan. 18, 2008).

NOTES TO DECISIONS

1. In General.

Any errors affecting the constitutional right to trial by jury will result in such prejudice to the judicial process that automatic reversal is required. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

2. Construction.

The same language as to right of trial by jury being used in the former constitutions, the meaning as to the nature of the right is to be gathered from the language used in the earliest constitution. State ex rel. Timothy v. Howse, 134 Tenn. 67, 183 S.W. 510, 1915 Tenn. LEXIS 147, L.R.A. (n.s.) 1916D1090 (1916).

3. Verification.

Lawyer's verification of his petition for writ of certiorari to appeal from a decision of the Disciplinary Board that stated “under oath or by affirmation that the facts in the preceding petition for certiorari are true and correct to the best of my knowledge, information and belief” clearly satisfied Tenn. Sup. Ct. R. 9, § 1.3, Tenn. Const. art. VI, § 10, and T.C.A. § 27-8-106, although the lawyer failed to recite that this was his first petition. Talley v. Bd. of Prof'l Responsibility, 358 S.W.3d 185, 2011 Tenn. LEXIS 971 (Tenn. Oct. 26, 2011).

4. Common Law Rights Preserved.

The right of trial by jury sanctioned and secured by Tenn. Const. art. I, § 6 is a right to trial by jury as it existed and was in force and use according to the course of the common law under the laws and constitution of North Carolina at the time of the formation and adoption of the Tennessee constitution in 1796. Garner v. State, 13 Tenn. 159, 13 Tenn. 160, 1833 Tenn. LEXIS 126 (1833); McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Trigally v. Memphis, 46 Tenn. 382, 1869 Tenn. LEXIS 71 (1869); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447, 1906 Tenn. LEXIS 44 (1906); Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 1968 Tenn. LEXIS 459 (1968); Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968).

Tenn. Const. art. I, § 6 protects the right of trial by jury only as it existed at common law. Marler v. Wear, 117 Tenn. 244, 96 S.W. 447, 1906 Tenn. LEXIS 44 (1906); State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908); Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

The constitutional guaranty to trial by jury refers to the right as it existed at common law at the time of the formation of the constitution and applies to common law actions but not to suits of an equitable nature. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957); Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986); but see Shook & Fletcher Supply Co. v. Nashville, 47 Tenn. App. 339, 338 S.W.2d 237, 1960 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1960); State v. Hartley, 790 S.W.2d 276, 1990 Tenn. LEXIS 215 (Tenn. 1990); Newport Housing Authority v. Ballard, 839 S.W.2d 86, 1992 Tenn. LEXIS 567 (Tenn. 1992).

Cases not triable by jury at the time of the formation of the constitution need not be made so now. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957); Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986); Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

5. Grade of Offenses Covered.

The terms “criminal charge,” “crimes,” and “infamous crimes” do not comprehend or apply to common misdemeanors not involving life or liberty so as to require, under the constitution, a jury trial upon a presentment or indictment previously found. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Hogan v. Mayor of Chattanooga, 2 Shan. 339 (1877). See U. S. Const. art. 3, § 2, cl. 3; U.S. Const. amends. 5, 7.

Misdemeanors not involving life or liberty may be tried under the constitution without a jury, because such misdemeanors were triable under the common law and statutes without a jury, before the constitution, and the constitution does not guarantee trial by jury, except where and as the right of trial by jury existed under the common law, and at the time of the adoption of the constitution. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Trigally v. Memphis, 46 Tenn. 382, 1869 Tenn. LEXIS 71 (1869); Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874); Hogan v. Mayor of Chattanooga, 2 Shan. 339 (1877); Foust v. State, 80 Tenn. 404, 1883 Tenn. LEXIS 189 (1883); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908).

The constitutional requirements of jury trial refer only to prosecutions of the grade of felony. Lebanon & Big Spring Tpk. Co. v. State, 141 Tenn. 675, 214 S.W. 819, 1919 Tenn. LEXIS 18 (1919).

Misdemeanors not involving life or liberty may be tried under the constitution without jury, because such misdemeanors were triable under the common law without a jury. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99, 1938 Tenn. LEXIS 133 (1938).

Statute authorizing misdemeanor offense not involving life or liberty to be tried by jury of six does not violate Tenn. Const. art. I, § 6. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99, 1938 Tenn. LEXIS 133 (1938).

Petty offenses punishable with fines up to fifty dollars are not embraced within this constitutional provision and a jury trial is not required. Capitol News Co. v. Metropolitan Government of Nashville & Davidson County, 562 S.W.2d 430, 1978 Tenn. LEXIS 590 (Tenn. 1978).

Tennessee courts have consistently held that persons charged with petty offenses and violation of city ordinances are not, as a matter of right, entitled to a trial by jury under the provisions of the state or federal constitutions. City of Gatlinburg v. Goans, 600 S.W.2d 735, 1980 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1980).

6. Particular Rights Under Section.

It is a constitutional right of a litigant to have all of the issues of fact submitted to the same jury at the same time and not to do so violates the litigant's constitutional right of trial by jury. Winters v. Floyd, 51 Tenn. App. 298, 367 S.W.2d 288, 1962 Tenn. App. LEXIS 109, 4 A.L.R.3d 450 (Tenn. Ct. App. 1962).

Where hospital defendant in malpractice action was granted a summary judgment prior to the hearing of evidence it was a violation of Tenn. Const. art. I, § 6 to grant a motion to add that hospital as a party defendant after the evidence had been presented, and the appeal of the rejection of that motion was frivolous. Guess v. Maury, 726 S.W.2d 906, 1986 Tenn. App. LEXIS 3257 (Tenn. Ct. App. 1986), overruled in part, Elliott v. Cobb, 320 S.W.3d 246, 2010 Tenn. LEXIS 875 (Tenn. Sept. 23, 2010).

There is no right to trial by jury in a proceeding conducted pursuant to T.C.A. § 44-17-120, which provides a summary procedure for the destruction of vicious or rabid dogs. State v. Hartley, 790 S.W.2d 276, 1990 Tenn. LEXIS 215 (Tenn. 1990).

The T.C.A. § 40-18-110(a) right of trial by jury is of constitutional dimension as evidenced by its embodiment in Tenn. Const. art. I, § 6; accordingly, this constitutional right is violated when the jury is not permitted to consider all lesser-included offenses supported by the evidence; constitutional and statutory recognition of a right afforded citizens in Tennessee are not mutually exclusive. State v. Ely, 48 S.W.3d 710, 2001 Tenn. LEXIS 600 (Tenn. 2001), cert. denied, Bowers v. Tennessee, 534 U.S. 979, 122 S. Ct. 408, 151 L. Ed. 2d 310, 2001 U.S. LEXIS 9880 (2001).

Defendant's convictions for first-degree murder, attempted first-degree murder, and aggravated arson were proper because the trial court did not err by replacing an ill juror with an alternate juror following the conclusion of the guilt phase but prior to the beginning of sentencing deliberations in his capital trial. The trial court's decision to replace an ill juror with a non-discharged alternate juror did not appear to constitute a plain error under T.C.A. § 39-13-204(a). State v. Hester, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010), cert. denied, Hester v. Tennessee, 179 L. Ed. 2d 896, 563 U.S. 939, 131 S. Ct. 2096, 2011 U.S. LEXIS 3140 (U.S. 2011), superseded by statute as stated in, State v. Wilson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 13, 2013).

7. —Issues of Fact to Be Decided by Jury.

Defendant had the constitutional right to have all issues of fact decided by a jury if the evidence was in conflict on the issues. Morgan v. Tennessee C. R. Co., 31 Tenn. App. 409, 216 S.W.2d 32, 1948 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1948).

Where several facts must be proved by a plaintiff to make out his case, and he relies upon the testimony of one witness to prove the facts, and that witness is contradicted by the evidence on one material issue, but it not contradicted on the other issues, the trial judge has no constitutional right to state to the jury that other facts about which there is no contradictory evidence are proved. Morgan v. Tennessee C. R. Co., 31 Tenn. App. 409, 216 S.W.2d 32, 1948 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1948).

Plaintiff in a personal injury suit for injuries resulting from a motor vehicle accident has the constitutional right to have all issues of fact decided by a jury if the evidence is in conflict on the issues. Finks v. Gillum, 38 Tenn. App. 304, 273 S.W.2d 722, 1954 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1954).

Where in action for wrongful death resulting from automobile accident the jury could have found that plaintiff's decedent was a guest in the car and was killed by the driver's negligence but under the instructions the jury was told that such decedent was presumed to be the owner of the car when in fact she was not and that she was driving the car when in fact she was not and that she was chargeable not only with her own negligence but also the driver's negligence, such instructions constituted reversible error as amounting to a misdirection of the jury depriving plaintiff of his constitutional right to trial by jury. Santi v. Duffey, 40 Tenn. App. 237, 290 S.W.2d 884, 1956 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1956).

Plaintiff has no constitutional right to submit statements of fact alleged in declaration to jury when such statements were admitted by defendants in a subsequent pleading, since admitted facts are not issues. Wilson v. Maury County Bd. of Education, 42 Tenn. App. 315, 302 S.W.2d 502, 1957 Tenn. App. LEXIS 88 (Tenn. Ct. App. 1957).

It is error for trial court to inform jury of effect their answers to special issues or interrogatories put to jury may have on case. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

Plaintiff in action at law for personal injuries had constitutional right to have every issue of fact made by pleadings and evidence submitted to jury with proper instructions by judge upon hypothesis that such testimony could be found to be true. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

Although the right to trial by jury is guaranteed by Tenn. Const. art. I, § 6 determinative questions of fact are only entitled to be litigated by a jury once, and when the jury has decided these factual questions then it becomes a question of law for the court to determine. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 1963 Tenn. LEXIS 338 (1963).

The right to jury trial carries with it the right to have all issues determined at one time by one jury; however, this right is not violated where a jury neglects to consider immaterial issues. Hurt v. Earnhart, 539 S.W.2d 133, 1976 Tenn. App. LEXIS 248 (Tenn. Ct. App. 1976); State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

It is a part of defendant's constitutional right of trial by jury to have every issue made by the evidence tried and determined by the jury under a correct and complete charge of the law given by the judge. State v. Staggs, 554 S.W.2d 620, 1977 Tenn. LEXIS 644 (Tenn. 1977), overruled, State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998).

When the state presents proof reflecting the existence of more than one offense of the same type and the indictment is not specific as to the offense for which the accused is being tried, an election is required: (1) To enable the defendant to prepare for and make his defense to the specific charge; (2) To protect him from double jeopardy by individualization of the issue; and (3) And to insure that the jury's verdict may not be a matter of choice between offenses with some jurors convicting on one offense and others on another. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

The right of trial by jury under Tenn. Const. art. I, § 6 dictates that all issues of fact be tried and determined by 12 jurors; thus, it follows that a defendant has a right to a correct and complete charge of the law, so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions. State v. Garrison, 40 S.W.3d 426, 2000 Tenn. LEXIS 652 (Tenn. 2000).

Where defendant was retried for felony murder, the prosecution was not permitted to use collateral estoppel against the defendant to establish the underlying offense of aggravated burglary; this would violate defendant's right to trial by jury as to every element of the charged offense. State v. Scarbrough, 181 S.W.3d 650, 2005 Tenn. LEXIS 1044 (Tenn. 2005).

In a Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., case, instructing a jury sua sponte that the jury's finding of negligence per se barred apportioning fault to an employee based on contributory negligence erred because: (1) this was a purely legal issue; and (2) the jury had returned a complete, consistent, verdict based on the jury's instructions. Payne v. CSX Transp., Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 836 (Tenn. Ct. App. Dec. 27, 2013), aff'd in part and modified in part, 467 S.W.3d 413, 2015 Tenn. LEXIS 547 (Tenn. July 1, 2015).

8. —Number of Jurors.

Trial by jury composed of only 11 men renders the verdict defective and the judgment void, and is a nullity. M'Donald v. M'Donald, 13 Tenn. 306, 13 Tenn. 307, 1833 Tenn. LEXIS 178 (1833); Bowles v. State, 37 Tenn. 360, 1858 Tenn. LEXIS 16 (1858); Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

The right of trial by jury is the right guaranteed to every litigant in jury cases to have the facts tried and determined by 12 jurors. Willard v. State, 174 Tenn. 642, 130 S.W.2d 99, 1938 Tenn. LEXIS 133 (1938); State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

Tenn. Const. art. I, § 6 means a trial by “twelve good and lawful men.” Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 1968 Tenn. LEXIS 459 (1968).

Conviction by a thirteen man jury was invalid. Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 1968 Tenn. LEXIS 459 (1968).

If the defendants could waive the jury entirely, it stands to reason that they could have consented to a trial by the remaining eleven jurors. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

9. —Juror Impartiality.

Impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. Teague v. State, 772 S.W.2d 915, 1988 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 45 (1989), appeal denied, — S.W.2d —, 1989 Tenn. LEXIS 292 (Tenn. June 5, 1989), overruled, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

A juror who cannot follow the law and instruction of the trial judge on capital punishment is not impartial to the state and the trial judge properly excused such a juror for cause. Teague v. State, 772 S.W.2d 915, 1988 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 45 (1989), appeal denied, — S.W.2d —, 1989 Tenn. LEXIS 292 (Tenn. June 5, 1989), overruled, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Defendant's right to an impartial jury was not violated when a defense witness had contact with a juror prior to jury selection because the juror and the witness had, at best, a professional acquaintance, had not seen each other in four years, and briefly exchanged pleasantries outside of the courtroom, and the juror denied meeting defendant and did not share her relationship with the other jurors; the jury was not sequestered. State v. Vales, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 507 (Tenn. June 11, 2015).

10. —Jury Selection.

Trial court's exclusion of jurors from service on the jury who were opposed to the death penalty on religious grounds did not amount to a religious test for jury service in violation of Tenn. Const. art. I, § 6. State v. Jones, 789 S.W.2d 545, 1990 Tenn. LEXIS 162 (Tenn. 1990), rehearing denied, 789 S.W.2d 545, 1990 Tenn. LEXIS 207 (Tenn. 1990), cert. denied, Jones v. Tennessee, 498 U.S. 908, 111 S. Ct. 280, 112 L. Ed. 2d 234, 1990 U.S. LEXIS 5145 (1990).

Where the prosecution exercised three preemptory challenges against prospective black jurors, but there was no pattern of strikes against black jurors, there was no indication of any discriminatory purpose in the strikes, and the state offered neutral reasons for the exercise of its challenges, the defendant failed to demonstrate purposeful racial discrimination in the jury selection. State v. Jones, 789 S.W.2d 545, 1990 Tenn. LEXIS 162 (Tenn. 1990), rehearing denied, 789 S.W.2d 545, 1990 Tenn. LEXIS 207 (Tenn. 1990), cert. denied, Jones v. Tennessee, 498 U.S. 908, 111 S. Ct. 280, 112 L. Ed. 2d 234, 1990 U.S. LEXIS 5145 (1990).

Questioning prospective jurors to determine whether their religious beliefs will prevent them from being impartial is not a prohibited religious test. Wolf v. Sundquist, 955 S.W.2d 626, 1997 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1997).

Second defendant's convictions for facilitation of first-degree murder and aggravated child abuse were appropriate because T.C.A. § 22-1-101's requirement that jurors be United States citizens does not violate the Tennessee Constitution. State v. Gomez, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Sept. 10, 2010), rev'd, 367 S.W.3d 237, 2012 Tenn. LEXIS 291 (Tenn. Apr. 24, 2012).

11. Duties Imposed by Section.

By Tenn. Const. art. I, § 6 the duty is imposed on the supreme court and upon all of the judges of the state to see to it that trial by jury shall remain inviolate. Turner v. State, 128 Tenn. 27, 157 S.W. 67, 1913 Tenn. LEXIS 21 (1913).

12. Rights Not to Be Impaired.

The right of trial by jury, unimpaired and without violation, guaranteed by Tenn. Const. art. I, § 6 to all litigants in jury cases, manifestly means that the right shall never be embarrassed or encumbered with conditions, which, in their practical operation, may impair or violate the free and full enjoyment of the right. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

A statute in effect making the clerk and other executive and ministerial officers of the court and the witnesses interested in a conviction by making their fees to be paid by the state or county dependent upon a conviction, but not applying to the jury, is not violative of the constitution, which requires the jury only, and not the officers and witnesses, to be impartial. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Gribble v. Wilson, 101 Tenn. 612, 49 S.W. 736, 1898 Tenn. LEXIS 111 (1898).

Statute construed to require supreme court to disregard an error in compelling the accused to accept competent jurors, after the exhaustion of his peremptory challenges on jurors erroneously held to be competent, is not unconstitutional. Mahon v. State, 127 Tenn. 535, 156 S.W. 458, 1913 Tenn. LEXIS 1 (1912).

Under the constitution, the right of trial by jury must be preserved inviolate as it existed at common law. The essentials of this right are that there shall be selected, in the presence of the trial judge, by the parties, under provisions giving each a fair opportunity for the selection, a jury of twelve good and lawful men; that they shall be duly sworn; that to them shall be submitted the issues between the parties, upon the competent material evidence offered by the respective parties; that the trial judge shall preside, and pass upon the competency of the evidence offered; that the jury shall be charged by the trial judge touching the principles of law applicable to the issues; that the jury, after having thus heard the evidence and received the charge of the judge, and considered them in relation to each other, shall render a unanimous verdict upon the issues; and that, if correct in form, it shall be received by the trial judge. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

The right to trial by jury guaranteed by constitution is the right as it was at common law with right of jury at their option to return a special verdict or general verdict but with privilege to decline to return any but a general verdict which general verdict is held to embrace every issue unless excepted to. Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464, 1962 Tenn. LEXIS 387 (1962), overruled in part, Ennix v. Clay, 703 S.W.2d 137, 1986 Tenn. LEXIS 820 (Tenn. 1986).

Action of trial court in ordering separation of issues relating to defendant's plea of accord and satisfaction and plaintiff's replications thereto from issues arising under general issue in personal action violated plaintiff's constitutional right to have all issues of fact tried before same jury at same time. Winters v. Floyd, 51 Tenn. App. 298, 367 S.W.2d 288, 1962 Tenn. App. LEXIS 109, 4 A.L.R.3d 450 (Tenn. Ct. App. 1962).

Fact that court refused to allow complainant to prosecute suit as assignee did not amount to denial or right to trial by jury where cause of action was not assignable and bill did not state a cause of action. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Since additur is conditioned on the consent of the defendant, he could not be heard to complain, when the trial judge increased the amount awarded to plaintiff by jury, that his right to trial by jury had been abridged. McCall v. Waer, 487 S.W.2d 308, 1972 Tenn. LEXIS 324 (Tenn. 1972).

Where a fine of more than fifty dollars or any confinement of the accused may be imposed, the right to jury trial under the Tennessee constitution is well-established. State v. Dusina, 764 S.W.2d 766, 1989 Tenn. LEXIS 26 (Tenn. 1989), rehearing denied, 764 S.W.2d 766, 1989 Tenn. LEXIS 80 (Tenn. 1989).

Where the court discharged a juror, selected an alternate, and then reinstated the original discharged juror who had missed a portion of the trial, such plain error implicated the fundamental right to trial by jury under Tenn. Const. art. I, § 6 and constituted a defect in the trial mechanism that defied harmless error analysis. State v. Cleveland, 959 S.W.2d 548, 1997 Tenn. LEXIS 635 (Tenn. 1997).

While defendant showed that only one African-American had served as foreperson of a petit jury during a significant period of time, there was no evidence of how many total forepersons served during the period or what percentage of the total African-American population was in fact eligible to serve as grand jury foreperson during the years considered. Nor was any evidence presented in the form of testimony of any trial judge, court clerk, or former forepersons to shed light upon the process for selecting the foreperson. State v. Copeland, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Aug. 22, 2005), aff'd in part, rev'd in part, 226 S.W.3d 287, 2007 Tenn. LEXIS 502 (Tenn. May 23, 2007).

Exclusion of certain classes of persons from the jury under T.C.A. § 22-1-102(a) was not unconstitutional because there was no basis in governing law that recognized certain felons, persons of unsound mind, or habitual drunkards as distinctive groups for purposes of the cross-representation requirement, and defendant cited no authority that supported the claim. State v. Copeland, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Aug. 22, 2005), aff'd in part, rev'd in part, 226 S.W.3d 287, 2007 Tenn. LEXIS 502 (Tenn. May 23, 2007).

Trial court's “dynamite charge” to a deadlocked jury in a medical malpractice case was reversible error because it violated Kersey v. State, 525 S.W.2d 139, 1975 Tenn. LEXIS 654, and its progeny because a reasonable juror could have concluded that the court was intimating that the lone holdout juror should not prevent a verdict and the erroneous instruction was a material factor leading to the verdict subsequently rendered in favor of the surgeon. Waters v. Coker, — S.W.3d —, 2006 Tenn. App. LEXIS 443 (Tenn. Ct. App. June 29, 2006), rev'd, 229 S.W.3d 682, 2007 Tenn. LEXIS 575 (Tenn. June 29, 2007).

Defendant's convictions for first-degree murder, attempted first-degree murder, and aggravated arson were proper because, removing from a jury venire the names of persons who had died, who no longer lived in the county, or who were physically or mentally disabled so as to prevent jury service, was legally permissible. In the absence of any evidence that the jury commissioners removed persons from the jury venire for improper purposes or that defendant was prejudiced by the removal of the persons, the service of the jury commissioners, even if they were not qualified to serve, did not provide sufficient grounds to reverse and vacate defendant's convictions. State v. Hester, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010), cert. denied, Hester v. Tennessee, 179 L. Ed. 2d 896, 563 U.S. 939, 131 S. Ct. 2096, 2011 U.S. LEXIS 3140 (U.S. 2011), superseded by statute as stated in, State v. Wilson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 13, 2013).

13. —Challenge of Jurors.

Tenn. Const. art. I, § 6 protects the right to jury trial as it existed at common law. The constitutional guaranty of a fair and impartial trial before a fair and impartial jury does not mean blind adherence to useless forms no longer necessary. The right to challenge is not the right to select a juror, and if, from those remaining after the right of rejection has been exercised, an impartial jury is obtained, no right of accused is violated. Manning v. State, 155 Tenn. 266, 292 S.W. 451, 1926 Tenn. LEXIS 45 (1927), superseded by statute as stated in, State v. Johnson, 692 S.W.2d 412, 1985 Tenn. LEXIS 602 (Tenn. 1985).

14. —Separation of Jury.

In cases punishable by imprisonment in the penitentiary or by death, there can be no fair and impartial jury trial where the jury separates after being sworn, though the separation is with accused's consent, unless it appears that the verdict was unaffected by the separation. Long v. State, 132 Tenn. 649, 179 S.W. 315, 1915 Tenn. LEXIS 59 (1915).

15. —Trial upon Erroneous Theory of Law.

In an action to recover damages for false arrest plaintiffs were deprived of their constitutional right of trial by jury when the case was tried under an erroneous theory of the law, and the case will be reversed and remanded for new trial despite the provisions of § 27-117 (§ 27-1-117 (repealed)). Martin v. Castner-Knott Dry Goods Co., 27 Tenn. App. 421, 181 S.W.2d 638, 1944 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1944).

16. —Unanimity.

Jurors must be in substantial agreement as to just what a defendant did as a preliminary step to determining whether the defendant is guilty of the crime charged. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

The constitutional right to a jury necessarily entails a right that the jury be unanimous as to which offense constitutes the crime for which the defendant is convicted. The requirement of jury unanimity encompasses the requirement of unanimity regarding the specific act or acts which constitute that offense. Absent such certainty, the unanimity requirement would provide too little protection in too many instances. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

In cases involving evidence which shows a real potential that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, each of which separately showing the commission of an offense, the trial court must augment the general unanimity instruction to insure that the jury understands its duty to agree unanimously to a particular set of facts. The assessment of this potential would involve consideration of the allegations made and the statutory offense charged, as well as the actual evidence presented. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

Defendant's right to a unanimous jury verdict was not violated where he was charged with one particular offense and the trial judge instructed the jury on the elements of the offense and, because the evidence warranted it, on criminal responsibility for another, and for criminal responsibility relative to the elements of the offense. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

Election doctrine does not require the prosecution to identify a single incident in cases where the child victim testifies to repeated incidents of sexual contact occurring over a substantial period of time but is unable to furnish specific details, dates, or distinguishing characteristics as to individual incidents of sexual battery; where a prosecution is based solely on such generic evidence, the election doctrine is satisfied by providing the jury with a modified unanimity instruction that allows a conviction only if the jury unanimously agrees the defendant committed all the acts described by the victim. The absence of such a modified unanimity instruction amounts to non-structural constitutional error. State v. Qualls, 482 S.W.3d 1, 2016 Tenn. LEXIS 50 (Tenn. Jan. 28, 2016).

Defendant did not argue prior to appeal that the State was required to make an election, which waived the issue, but in any event, he would not be able to show that his substantial rights were violated because he elected to proceed with a bench trial and thus he could not claim that his constitutional right to a unanimous jury verdict was violated. Furthermore, the State only offered proof of one rape, and no election was required, and the trial court clearly identified the factual bases for the two aggravated sexual battery convictions. State v. Haven, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. June 19, 2020).

17. —Receipt of Verdict.

Where at request of trial judge, verdict was received in his absence by member of the bar over the objections of the plaintiff, verdict was void since it omitted an indispensable requisite of constitutional trial by jury. Tennessee Gas Transmission Co. v. Vineyard, 191 Tenn. 331, 232 S.W.2d 403, 1950 Tenn. LEXIS 578, 20 A.L.R.2d 279 (1950).

Trial court erred in reassembling the jury and permitting the entry of guilty verdicts after the jury had reported not guilty verdicts and been discharged; although very little time had elapsed, the jurors had been verbally dismissed and had exited the courtroom and entered an area occupied by members of the public, and such circumstances demonstrate a separation of the jurors from the trial court to such a degree that outside contacts may have occurred. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

Although the double jeopardy clause was not implicated because the jury was not reassembled to determine guilt or innocence, but only to determine the facts relevant to sentencing, there was no separate jeopardy, the recall of the discharged jury violated defendant's due process rights under U.S. Const. amend. V, U.S. Const. amend. XIV, § 1, and Tenn. Const. art. I, §§ 6, 8, 9 because once a jury had returned a complete verdict, or the jurors had separated and passed from the control of the court, the jury could not be reassembled to act on the case for any purpose. Accordingly the case was remanded to the trial court to select a new jury in order to hold a new trial solely on the issue of whether defendant's conviction was his first, second, third, or fourth driving under the influence offense based on the evidence presented regarding prior convictions. State v. Nash, 294 S.W.3d 541, 2009 Tenn. LEXIS 652 (Tenn. Oct. 7, 2009).

18. —Fixing Punishment.

It is not essential that the jury assess the punishment upon the conviction of an offense, unless the statutes so direct, because the power to declare what shall be the appropriate punishment for an ascertained crime belongs solely to the legislature, which body may provide a minimum and a maximum punishment, and leave it to the discretion of the jury to fix a definite term, within those limits, or it may provide a single or definite term, leaving nothing for the jury, except to respond to the issue of guilty or not guilty. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

19. —Taxing Costs.

A statute taxing the losing party with the jury fees in all civil suits impairs or violates the free and full enjoyment of the right of trial by jury, and is unconstitutional, because, as soon as they are sworn and enter upon the trial of the cause, they become interested to the extent of their fees. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874).

The clause taxing the costs of a special jury to the losing party is unconstitutional and invalid as an unwarranted invasion of the right of trial by jury, as defined and preserved by the state and federal constitutions. Gribble v. Wilson, 101 Tenn. 612, 49 S.W. 736, 1898 Tenn. LEXIS 111 (1898); State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151, 1912 Tenn. LEXIS 28 (1912).

20. Substitution of Jurors.

The substitution of jurors after final submission of the case, coupled with the trial court's failure to instruct the jury to begin deliberations anew, violated each defendant's right to a trial by jury under Tenn. Const. art. I, § 6. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

21. Cases Triable Without Jury.

On a motion by a surety to recover money paid for the principal, the court, without a jury, cannot receive oral evidence that the motioner was a surety, where the suretyship does not appear in the instrument or upon the record. Love v. M'Cool, 1 Tenn. 335, 1808 Tenn. LEXIS 40 (1808). But see §§ 25-3-127, 25-3-132, 25-3-133.

Officers of court may be removed in summary proceedings without a jury. Evans v. Justices of Claibourne County, 4 Tenn. 26, 1816 Tenn. LEXIS 9 (1816); Hardin County Court v. Hardin, 7 Tenn. 291, 1823 Tenn. LEXIS 59 (1823); Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824); Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827). See notes under Tenn. Const. art. I, § 8 and Tenn. Const. art. VI, § 13.

Motions may be tried without the intervention of a jury, if such be the meaning and intent of the law. Tipton v. Harris, 7 Tenn. 414, 1824 Tenn. LEXIS 21 (1824).

Where the facts are not disputed, but are legally apparent, the judge, without the intervention of a jury, applies the law to the facts, and renders judgment thereon. Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824).

The cases in which the courts act without a trial by jury are innumerable and undefined, and where the proceedings are according to the law of the land, Tenn. Const. art. I, § 6 is not violated. Goddard v. State, 10 Tenn. 96, 1825 Tenn. LEXIS 3 (1825).

No jury in bastardy cases in the county court. Goddard v. State, 10 Tenn. 96, 1825 Tenn. LEXIS 3 (1825); Kirkpatrick v. State, 19 Tenn. 124, 1838 Tenn. LEXIS 32 (1838); Jackson, Morris & Co. v. Nimmo & Thornhill, 71 Tenn. 597, 1879 Tenn. LEXIS 120 (1879). But a jury to try such issues in the county court may not constitute reversible error, as, while the parties are not entitled to a jury, the court may have the aid of a jury. State v. Coatney, 16 Tenn. 210, 1835 Tenn. LEXIS 77 (1835); Kirkpatrick v. State, 19 Tenn. 124, 1838 Tenn. LEXIS 32 (1838). See Coffee v. Neely, 49 Tenn. 304, 1871 Tenn. LEXIS 10 (1871); Crowder v. Bradley, 1 Shan. 643 (1876); Coulter v. Davis, 81 Tenn. 451, 1884 Tenn. LEXIS 57 (1884).

Road cases are to be tried in the (former) county court, and on appeal in the circuit court, without a jury. McWhirter v. Cockrell, 39 Tenn. 9, 1858 Tenn. LEXIS 243 (1858); Evans v. Shields, 40 Tenn. 70, 1859 Tenn. LEXIS 22 (1859), overruled, Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890); Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

As to removal of officers, see notes under Tenn. Const. art. I, § 8 and Tenn. Const. art. VI, § 13.

No jury in disbarment proceedings against an attorney for misappropriating his client's funds. Davis v. State, 92 Tenn. 634, 23 S.W. 59, 1893 Tenn. LEXIS 20 (1893).

The question of the power of a railroad corporation under its charter to condemn land under the eminent domain laws is to be determined by the court from the charter, and not by a jury. Tennessee C. R. Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112, 1902 Tenn. LEXIS 97 (1903).

Tenn. Const. art. I, § 6 has no application to a summary proceeding for return of intoxicating liquor seized by a sheriff. Caneperi v. State, 169 Tenn. 472, 89 S.W.2d 164, 1935 Tenn. LEXIS 72 (1936).

Defendant was not entitled to trial by jury in contempt proceeding in circuit court for violating injunction against illegal sale of intoxicating liquor. Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

The right to trial by jury does not extend to proceedings for disbarment of an attorney. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957).

The right to trial by jury does not extend to contempt proceedings for violation of an injunction. Taylor Implement Mfg. Co. v. United Steelworkers, 219 Tenn. 472, 410 S.W.2d 881, 1966 Tenn. LEXIS 633, rev'd, Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538, 1968 U.S. LEXIS 1632 (1968) (holding contemner entitled to jury trial except for “petty offense,” and punishment provided in § 23-903 (now § 29-9-103) made it a petty offense).

The general rule is that where a number of cases are consolidated for trial because they arise out of the same transaction it is permissible for the trial judge to submit one of such cases to the jury for its consideration and verdict before submitting the remaining cases to the jury and it is also the general rule that the verdict thus rendered in such “pilot case” is binding upon all parties to all the other cases tried simultaneously with such case. Chitwood v. Myers, 60 Tenn. App. 1, 443 S.W.2d 827, 1969 Tenn. App. LEXIS 303 (Tenn. Ct. App. 1969).

Where there is no genuine issue as to any material fact, summary judgment is appropriate in a will contest proceeding and does not amount to an improper denial of right to a jury trial. Union Planters Nat'l Bank v. Inman, 588 S.W.2d 757, 1979 Tenn. App. LEXIS 351 (Tenn. Ct. App. 1979).

Defendant has no statutory or common-law right to trial by jury and there is no constitutional breach in applying subsection 24-7-112(b)(1). Rooker v. Rimer, 776 S.W.2d 124, 1989 Tenn. App. LEXIS 321 (Tenn. Ct. App. 1989), cert. denied, 493 U.S. 1073, 110 S. Ct. 1120, 107 L. Ed. 2d 1027, 1990 U.S. LEXIS 962 (1990).

There is no right to a jury trial in Tennessee statutory proceedings involving the forfeiture of personal property. Helms v. Tennessee Dep't of Safety, 987 S.W.2d 545, 1999 Tenn. LEXIS 42 (Tenn. 1999), review or rehearing denied, — S.W.3d —, 987 S.W.2d 545, 1999 Tenn. LEXIS 229 (Tenn. 1999).

Because juvenile proceedings were statutory and did not exist under common law, Tenn. Const. art. I, § 6 was inapposite. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

Employee was not entitled to a jury trial on his retaliation claim because such claims were not “brought under” the Governmental Tort Liability Act, but were brought under the Tennessee Public Protection Act, an independent statute that established its own rights and remedies, no similar statute of general application afforded the employee a right to trial by jury, the civil procedure rule was merely descriptive of the constitutional right to a jury trial and did not itself confer an independent right to trial by jury, and the employee was not entitled to a jury trial under the state constitution on his claim where the claim did not exist at common law. Young v. City of Lafollette, 479 S.W.3d 785, 2015 Tenn. LEXIS 695 (Tenn. Aug. 26, 2015).

22. —Equitable Proceedings.

There is no absolute right to a trial by jury in a suit of which the chancery court has inherent equitable jurisdiction, but the submission of facts to a jury is a matter within the discretion of the chancellor. Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199, 1920 Tenn. LEXIS 36 (1920).

Tenn. Const. art. I, § 6 as to jury trials refers not to suits brought in chancery, but alone to actions triable at common law. Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199, 1920 Tenn. LEXIS 36 (1920); Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

Tenn. Const. art. I, § 6 that the right of trial by jury shall remain inviolate, does not guarantee the right of trial by jury in any cause of which the chancery court has jurisdiction, which is exercised according to the forms by which such courts are accustomed to administer remedies. Exum v. Griffis Newbern Co., 144 Tenn. 239, 230 S.W. 601, 1921 Tenn. LEXIS 33 (1921).

In a chancery suit for accounting, the question as to right of a party to a jury trial is for the determination by the chancellor, from the pleadings, as to whether the case involves complicated accounting; and, if it does, the party has no absolute right to a trial by jury. Greene County Union Bank v. Miller, 18 Tenn. App. 239, 75 S.W.2d 49, 1934 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1934).

Right to trial by jury under the constitution does not apply to equitable proceedings. Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666, 1934 Tenn. LEXIS 102 (1935).

The general rule is that a constitutional guaranty of jury trial does not apply to contempt proceedings whether in a court of law or a court of equity. Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

The constitutional guaranty of trial by jury refers to common law actions and not to suits of an equitable nature. State ex rel. Balsinger v. Madisonville, 222 Tenn. 272, 435 S.W.2d 803, 1968 Tenn. LEXIS 431 (1968).

There is no constitutional right to a trial by jury in a matter inherently equitable. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

There is no right under Tenn. Const. art. I, § 6 to a jury trial in an action that is equitable in nature unless it was triable by jury when the constitution was adopted. Smyrna v. Ridley, 730 S.W.2d 318, 1987 Tenn. LEXIS 905 (Tenn. 1987).

Tennessee Constitution does not preserve the right to jury trials in inherently equitable matters. In re Estate of Hillis, — S.W.3d —, 2016 Tenn. App. LEXIS 148 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 479 (Tenn. June 23, 2016).

23. —Divorce Actions.

The right to a jury in an equitable matter exists only to the extent provided by statute. The jury does not try the whole case or render a verdict for one party or the other and these rules apply in a divorce action where a jury has been demanded under § 36-4-113. Wright v. Quillen, 909 S.W.2d 804, 1995 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1995).

24. —Order of Protection.

There is no right to a jury trial prior to the issuance of an order of protection issued under the Domestic Abuse Act, § 36-3-601 et seq. Clark v. Crow, 37 S.W.3d 919, 2000 Tenn. App. LEXIS 492 (Tenn. Ct. App. 2000).

25. Construction of Statutes to Award Jury Trial.

That the construction of an act to award jury trial might render the act useless will not deter the court in so construing it where, under the constitution, the parties are entitled to a trial by jury. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

Under drainage act giving right to jury trial on appeal to circuit court according to the law of the land, property owners have right to jury trial as to advisability of establishing district and of including certain lands, the questions being of purely legal cognizance. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

In an action under the Motor Vehicle Habitual Offender Act, defendant had no right to a trial by jury where he admitted to three convictions within a five-year period, and there were no factual disputes. State v. Malady, 952 S.W.2d 440, 1996 Tenn. Crim. App. LEXIS 449 (Tenn. Crim. App. 1996).

26. Validity of Particular Statutes.

A statute stating that certain acts shall be deemed a commission of the offense of manufacturing whisky does not impair the right of trial by jury contrary to Tenn. Const. art. I, § 6. Hall v. State, 151 Tenn. 416, 270 S.W. 84, 1924 Tenn. LEXIS 74 (1925).

The additur statute as applied to a nonconsenting plaintiff does not violate the right to trial by jury unless the jury verdict is so low as to evince prejudice, passion, or caprice, since the plaintiff is entitled to only one fair trial not two; accordingly, where the evidence was such as could reasonably have led the jury to disbelieve plaintiff's special damages, denial of new trial conditioned upon additur did not violate plaintiff's rights. Kaiser v. Cannon, 529 S.W.2d 235, 1975 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1975).

The procedural and enforcement provisions of title 4, ch. 21, part 3, concerning human rights, do not violate the principle of separation of powers, the constitutional guarantee of the right to trial by jury, or the constitutional provisions pertaining to the election of state judges. Plasti-Line, Inc. v. Tennessee Human Rights Com., 746 S.W.2d 691, 1988 Tenn. LEXIS 65 (Tenn. 1988).

Administrative forfeiture statutes do not violate the right to a jury trial under the state constitution. Jones v. Greene, 946 S.W.2d 817, 1996 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1996).

The waiver provision of T.C.A. § 40-18-110(c), waiving a lesser included offense instruction when a defendant fails to request one, is an unconstitutional abrogation of a criminal defendant's constitutional right to have the jury charged on all offenses included within the indicted offense and supported by the proof adduced at trial. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Punitive damages bar set forth in T.C.A. § 29-39-104 violated individual right to trial by jury set forth in Tennessee Constitution. Lindenberg v. Jackson Nat'l Life Ins. Co., 2018 FED App. 0280P (6th Cir.), — F.3d —, 2018 U.S. App. LEXIS 36097 (6th Cir. Dec. 21, 2018).

Statutory cap on noneconomic damages does not violate the right to trial by jury under the Tennessee Constitution because the right to trial by jury under the Tennessee Constitution is satisfied when an unbiased and impartial jury makes a factual determination regarding the amount of noneconomic damages, if any, sustained by the plaintiff; that right is not violated when a judge then applies, as a matter of law, the statutory cap on noneconomic damages. McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 2020 Tenn. LEXIS 84 (Tenn. Feb. 26, 2020).

27. —Statutes Making Facts Prima Facie Evidence.

The provision in a statute that the proof of certain enumerated facts shall constitute prima facie evidence of fraudulent intent does not impair the right of trial by jury. State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910); Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911); Mahon v. State, 127 Tenn. 535, 156 S.W. 458, 1913 Tenn. LEXIS 1 (1912).

Statutes declaring an internal revenue special tax payment or the possession of a federal liquor license prima facie evidence that the party is in the liquor business and that he has made unlawful sales of intoxicating liquors, and making certified copies of such license admissible as competent evidence, are not unconstitutional as impairing the right of trial by an impartial jury; for the jury is not bound to convict upon such evidence, but such evidence shifts upon the accused the duty to explain the same. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910); Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911).

Statutes making certain facts absolute or conclusive proof of guilt are unconstitutional, while those making certain facts prima facie evidence only are constitutional. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910).

28. —Increasing Chancery Jurisdiction.

The statute increasing the chancery jurisdiction is not unconstitutional as an impairment of the right of trial by jury as guaranteed by Tenn. Const. art. I, § 6, because this provision does not apply to the administration of law in the chancery court, and if it does, the parties may at their option have a trial by jury in the chancery court. Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827); Jackson, Morris & Co. v. Nimmo, 71 Tenn. 597, 1879 Tenn. LEXIS 120 (1879). But see Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831).

29. —Jurisdiction of Justices of the Peace.

Statutes conferring jurisdiction upon justices of the peace to try jury cases of a civil nature involving more than $20.00, without a jury, are not unconstitutional, where a jury may be obtained by appeal. Thompson v. Gibson, 2 Tenn. 235, 1814 Tenn. LEXIS 7 (1814); Morford v. Barnes, 16 Tenn. 444, 1835 Tenn. LEXIS 104 (1835); Pryor v. Hays, 17 Tenn. 416, 1836 Tenn. LEXIS 74 (1836). See U. S. Const. art. 3, § 2, cl. 3; U.S. Const. amends. 5, 7.

A statute, providing for the trial of offenders before justices and authorizing the imposition of fines by justices, with right of appeal, does not violate the constitutional right of trial by jury, and is valid and constitutional. State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908).

30. —Special Courts.

A statute creating a special court for the trial of jury cases of a civil nature, without a jury and without appeal, is unconstitutional. Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831).

31. Consolidated Cases.

In consolidated cases arising out of same automobile accident trial court could properly single out one particular case to be determined before the others where such case was pivotal and involved a determination of all the facts required to render a judgment in all the cases. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 1963 Tenn. LEXIS 338 (1963).

In consolidated cases arising out of same transaction where decision as to factual questions is made by the jury in a pivotal case, it is not necessary for the same determination to again be made in the related cases. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 1963 Tenn. LEXIS 338 (1963).

The award of prejudgment interest is a matter of equity, and as such does not implicate the constitutional right to trial by jury. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 1998 Tenn. LEXIS 293 (Tenn. 1998), superseded by statute as stated in, Davidoff v. Progressive Haw. Ins. Co., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 3114 (M.D. Tenn. Jan. 9, 2013), superseded by statute as stated in, Westfield Ins. Co. v. RLP Partners, LLC, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 75673 (M.D. Tenn. May 30, 2013), superseded by statute as stated in, Price's Collision Ctr., LLC v. Progressive Haw. Ins. Corp., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 154225 (M.D. Tenn. Oct. 28, 2013), superseded by statute as stated in, Lindenberg v. Jackson Nat'l Life Ins. Co., — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 184081 (W.D. Tenn. Dec. 9, 2014), superseded by statute as stated in, Am. Nat'l Property & Cas. Co. v. Stutte, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 48726 (E.D. Tenn. Apr. 14, 2015).

32. Demand for Jury.

Statutes requiring litigants to demand a jury, if one is desired, at a particular stage of the litigation, and prescribing the manner in which the demand shall be made, are constitutional, because the right of trial by jury in all jury cases is secured to everyone who does not waive it by failure to demand it as required. Garrison v. Hollins, Burton & Co., 70 Tenn. 684, 1879 Tenn. LEXIS 222 (1879); Coulter v. Weed Sewing Machine Co., 71 Tenn. 115, 1878 Tenn. LEXIS 1 (1878); Travis v. L. & N. R. R. Co., 77 Tenn. 231, 1882 Tenn. LEXIS 42 (1882); McGuire v. North Carolina & S. L. Ry., 95 Tenn. 707, 33 S.W. 724 (1896); Warren v. Scudder-Gale Grocery Co., 96 Tenn. 574, 36 S.W. 383, 1896 Tenn. LEXIS 10 (1896); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

33. Voir Dire.

In proceedings against former governor and two associates involving massive publicity, voir dire examination of jurors produced an impartial jury and a fundamentally fair trial where voir dire of 90 jurors was conducted en masse with no individual questioning of jurors out of the presence of the entire venire when: (1) There was extensive questioning concerning prior media impact and juror associations, coupled with many dismissals based on even hints of possible prejudice; (2) Very substantial increases in the number of peremptory challenges were available to each defendant; and (3) Reliance on defendants' use of detailed questionnaires concerning all potential jurors was coupled with sensitive responses by the court to any of defendants' challenges arising from such use. United States v. Blanton, 719 F.2d 815, 1983 U.S. App. LEXIS 16468 (6th Cir. Tenn. 1983), cert. denied, 465 U.S. 1099, 104 S. Ct. 1592, 80 L. Ed. 2d 125, 1984 U.S. LEXIS 1456 (1984).

34. —After Jury Empaneled.

In a personal injury action arising out of an automobile collision where, after the jury was empaneled, a juror was involved in an accident similar to that suffered by the plaintiff, it was reversible error for the trial court not to inquire into whether the juror could weigh the evidence impartially. Ricketts v. Carter, 918 S.W.2d 419, 1996 Tenn. LEXIS 190 (Tenn. 1996).

35. Instructions.

In a second degree murder case, the trial court's failure to charge the jury on the lesser-included offense of facilitation of second degree murder violated defendant's right to a jury trial, as defendant's failure to request the instruction did not waive his right to have the jury so instructed, and evidence existed that reasonable minds could accept as to facilitation of second degree murder, because there was no proof establishing which of four men involved in the beating death of the victim struck the fatal blow. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Defendant's conviction for premeditated first-degree murder was appropriate because the disappearance of interview notes could have been attributed to simple negligence, as distinguished from gross negligence; because the primary accusation was a more general claim that the state lost pieces of evidence over time, and there was no indication that any specific piece of missing evidence had any exculpatory value or could have been expected to play a significant role in defendant's defense, defendant failed to establish entitlement to jury instruction regarding lost evidence. State v. Gilley, 297 S.W.3d 739, 2008 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Aug. 13, 2008).

Trial court's instructions during the penalty phase provided a correct statement of the law because the court clearly and repeatedly instructed the jury that it could consider any mitigating circumstance raised by the evidence, but only those aggravating circumstances proven beyond a reasonable doubt. Additionally, the court made it clear that jury unanimity was not required with regard to the mitigating circumstances in sentencing defendant to life without the possibility of parole. State v. Hancock, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1115 (Tenn. Crim. App. Dec. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 392 (Tenn. May 15, 2015).

Defendant failed to prove by clear and convincing evidence that trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser-included offense of sale and delivery of a Schedule I controlled substance within 1,000 feet of a school; there was no evidence from which a reasonable jury could conclude that defendant merely facilitated the drug sales because he set the price for the drugs, acquired the drugs, accepted payment for the drugs, and delivered the drugs. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Trial court did not err in declining to instruct the jury on the lesser-included offense of simple causal exchange because the evidence reflected nothing less than the sale of cocaine; the record was lacking in evidence reflecting anything other than a pecuniary motive for the transfer of the cocaine because the amount of cocaine, the price, and the meeting places were clearly established prior to each transaction. State v. Lyles, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 5, 2015).

Trial court did not plainly err by failing to instruct the jury on facilitation as a lesser-included offense of burglary and theft where there was no proof to establish a nexus between defendants and another unknown individual who participated in the commission of the offense, as the evidence established that two individuals matching the descriptions of defendants entered the jewelry store and stole $140,000 worth of jewelry and one defendant was positively identified in the surveillance video by police officers as one of the perpetrators. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

In a case where defendant was convicted of rape, statutory rape by an authority figure, and sexual battery by an authority figure, because the jury instructions provided by the trial court were a complete and accurate statement of the law, as it followed the language of the statute defining “sexual penetration” and the pattern jury instruction on the definition of cunnilingus, and defendant's requested jury instruction was not an accurate statement of law, the trial court did not err by refusing to provide defendant's requested jury instruction. State v. Falcon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 608 (Tenn. Crim. App. Aug. 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 952 (Tenn. Dec. 14, 2016).

Record failed to include a transcript of the instructions as read to the jury, although it contained what purported to be a written copy of the trial court's charge; in any event, the criminal responsibility instruction provided in the written copy of the charge was fairly raised by the evidence, tracked the language of the pattern jury instruction, and was a correct statement of the law, and thus the inclusion of the instruction was not error. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Erroneous jury instructions concerning the ability of the decedent's adult stepchild to sign a will or deed on behalf the decedent were harmless errors because the appellate court was unable to conclude that the errors more probably than not affected the outcome of the verdict and thus did not deny the constitutional guarantee of a right to trial by jury, which included the right to a complete and correct charge of the law, so that each issue of fact raised by the evidence was submitted to the jury on proper instructions. Johnson-Murray v. Burns, 525 S.W.3d 625, 2017 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 14, 2017).

Jury was properly instructed in defendant's trial because no lesser-included offense instructions were required as (1) the statute of limitations had expired as to the offenses and nothing showed defendant waived the statute of limitations, and (2) the jury's verdict showed the jury rejected any basis for the lesser-included offenses instead of the charged offenses. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Jury instruction on possessing a firearm with intent to go armed during commission of a dangerous felony was plain error because (1) the record showed what occurred at trial, (2) the instruction breached an unequivocal rule of law by stating defendant could be guilty for acting knowingly or recklessly, when the mens rea was intentionally, (3) defendant's substantial right was adversely affected by lessening the State's burden of proof, violating defendant's rights to a fair trial and a jury trial, (4) defendant did not tactically waive the issue, and (5) it was necessary to consider the error to do substantial justice, as the error likely changed the trial's outcome. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 5, 2017).

Trial court did not err by denying defendant's request for a special jury instruction on the right of parents and guardians to use corporal punishment when disciplining children because the instructions provided by the trial court contained a complete and correct statement of the law and the evidence adduced at trial did not support the giving of a special instruction on a parent's right to use corporal punishment. State v. Cooke, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. July 23, 2018).

Trial court properly instructed the jury on the law of criminal responsibility because the evidence adduced at trial established that defendant assumed the role of the victim's father; defendant's name was listed in the father's portion of the victim's school enrollment form, defendant was present for school drop off and pick up, and he undertook the discipline of the victim by spanking him. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

36. Directed Verdict.

A judge cannot, of his own volition, dismiss a case without trial, or direct and order a nonsuit without the plaintiff's consent; for the plaintiff is entitled to a trial and to have his evidence passed upon by a jury. Littlejohn v. Fowler, 45 Tenn. 284, 1868 Tenn. LEXIS 10 (1868). But the defendant may demur to the plaintiff's evidence, and obtain the judgment of the trial judge, as upon a special verdict, whether, as a matter of law, any recovery can be had, or liability fixed, against him upon the undisputed facts, and this is not a violation of the constitutional guaranty of trial by jury. Hopkins v. Railroad, 96 Tenn. 409, 34 S.W. 1029, 1895 Tenn. LEXIS 42, 32 L.R.A. 354 (1895); Nashville, C. & S. L. R. Co. v. Sansom, 113 Tenn. 683, 84 S.W. 615, 1904 Tenn. LEXIS 58 (1904); King v. Cox, 126 Tenn. 553, 151 S.W. 58, 1912 Tenn. LEXIS 77 (1912).

The direction of a verdict should be made upon a consideration of the entire evidence, and not upon any detached portion of it. Greenlaw v. Louisville & N.R.R., 114 Tenn. 187, 86 S.W. 1072, 1904 Tenn. LEXIS 81 (1904); Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

Verdict should not be directed upon undisputed facts testified to by one witness, where other facts are testified to by other witnesses; but there will be no reversal for direction of verdict, where the merits have been reached. Greenlaw v. Louisville & N.R.R., 114 Tenn. 187, 86 S.W. 1072, 1904 Tenn. LEXIS 81 (1904); Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 92 S.W. 1116, 1906 Tenn. LEXIS 7 (1906); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

A verdict may be directed by the trial judge where the facts are uncontroverted, and there is no doubt as to the conclusions to be drawn therefrom. Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Kansas City, M. & B.R.R. v. Williford, 115 Tenn. 108, 88 S.W. 178, 1905 Tenn. LEXIS 48 (1905), overruled in part, McIntyre v. Balentine, 833 S.W.2d 52, 1992 Tenn. LEXIS 336 (Tenn. 1992); Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S.W. 319, 1905 Tenn. LEXIS 66 (1905).

The trial judge has no power to direct a verdict, where there is a dispute as to any material determinative question. Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 92 S.W. 1116, 1906 Tenn. LEXIS 7 (1906); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

Where the material facts are uncontroverted and undisputed, there is nothing for the jury to find, and the question is then solely one of law for the trial judge who may instruct the jury to return a verdict in accordance with his view of the law applicable to such facts; for where there is no dispute as to the facts, the question is one of law for the court. Tyrus v. Kansas City, Ft. S. & M.R.R., 114 Tenn. 579, 86 S.W. 1074, 1905 Tenn. LEXIS 28 (1905); Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 92 S.W. 1116, 1906 Tenn. LEXIS 7 (1906); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

The motion for peremptory instructions to the jury to return a certain verdict is not addressed to the court's discretion, but presents a question of law. Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S.W. 319, 1905 Tenn. LEXIS 66 (1905); Norman v. Southern Ry., 119 Tenn. 401, 104 S.W. 1088, 1907 Tenn. LEXIS 14 (Tenn. Sep. 1907).

Concurrent motions of both parties for peremptory instructions for a verdict, and the denial thereof, will not operate to withdraw the case from the jury and to submit the question of fact to the trial judge. Virginia-Tennessee Hdwe. Co. v. Hodges, 126 Tenn. 370, 149 S.W. 1056, 1912 Tenn. LEXIS 62 (1912); King v. Cox, 126 Tenn. 553, 151 S.W. 58, 1912 Tenn. LEXIS 77 (1912).

A motion for peremptory instructions, even where made by both parties to the suit, does not operate to withdraw the case from the jury, for such motion simply has the effect of calling upon the trial judge to determine whether there is any substantial conflict in the evidence, and, if he decides there is no substantial conflict, he then directs the jury to return a verdict in accordance with the law as applied to the undisputed facts; but if the trial judge should be of the opinion that there is substantial conflict in the evidence, the motion is overruled, and the case goes to the jury to be decided by it on the evidence and the charge of the court. Brackin v. McGannon, 137 Tenn. 207, 192 S.W. 922, 1916 Tenn. LEXIS 72 (1916).

In earlier cases, Tenn. Const. art. I, § 6 was, perhaps, more strictly construed, but later the practice of demurring to the evidence was approved, and still later it was held that verdicts might be directed by the trial judge where the facts were uncontroverted and there was no doubt as to the conclusions to be drawn therefrom; but there cannot be a directed verdict where there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence. Brenizer v. Nashville, C. & S. L. Ry, 156 Tenn. 479, 3 S.W.2d 1053, 1927 Tenn. LEXIS 144 (1928).

Taking a case from the jury by the judge and deciding the case himself goes deeper than an adjudication of property rights, as the constitutional guaranty of Tenn. Const. art. I, § 6 is involved. McGinniss v. Brown, 30 Tenn. App. 178, 204 S.W.2d 334, 1947 Tenn. App. LEXIS 76 (1947).

The trial judge's duty in passing on controverted issues of fact is to weigh the evidence and independently determine if he is satisfied with jury's verdict, and where he is dissatisfied, it is his duty to grant new trial, but he cannot go further and direct verdict for defendant because he does not believe plaintiff's story. McCulley v. Cherokee Ins. Co., 49 Tenn. App. 713, 359 S.W.2d 561, 1962 Tenn. App. LEXIS 138 (Tenn. Ct. App. 1962).

Even though proof of guilt is conclusive, the issue of guilt should be submitted to the jury on a plea of not guilty; there is no provision in this state or any other jurisdiction for the trial judge to order a verdict of conviction. State v. Davis, 637 S.W.2d 471, 1982 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 1982).

37. Additur.

When the trial court grants a motion for an additur, it is acting in its capacity as “thirteenth juror,” and the right to jury trial clauses of the federal and state constitutions, which require that the jury be allowed to determine all disputed issues of fact, mandate that the trial court obtain the consent of the party against whom the additur is to be entered. If that party does not accept the additur, the trial court must order a new trial. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

38. Right of Review.

Where an indictment remains undisposed of because of an order of the court retiring the case, over objection and exception of defendant, such proceeding was not reviewable on theory that he was denied the right of a speedy trial, since nothing was adjudicated which can be reviewed on appeal. Mason v. State, 169 Tenn. 52, 82 S.W.2d 862, 1935 Tenn. LEXIS 14 (1935).

39. —Scope of Right on Review.

In reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury. Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 1978 Tenn. LEXIS 686 (Tenn. 1978).

A presumption of unanimity may be made if the case involves one event-one crime evidence, but such a presumption is unwarranted if the evidence shows several events with each, if true, constituting the offense charged under circumstances reflecting a real potential for a composite jury verdict. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

There was ample material evidence on which the jury could base its award of both non-economic and economic damages to the driver, including the verdict for loss of enjoyment of life and loss of consortium, although the insurer claimed that the award was excessive and the trial court should have granted a remittitur, and the damages were affirmed given the material evidence standard. Monypeny v. Kheiv, — S.W.3d —, 2015 Tenn. App. LEXIS 187 (Tenn. Ct. App. Apr. 1, 2015).

Automobile accident victim was entitled to a new trial on damages because there was no material evidence to support the jury's award of no damages in that the victim's surgeon testified that the automobile collision, however minor, aggravated the victim's physical infirmities and that, if not for the accident, the victim would not have experienced the difficulties that ultimately required surgery, but the motorist offered no proof to refute the surgeon's expert medical opinion. Kempson v. Casey, — S.W.3d —, 2016 Tenn. App. LEXIS 828 (Tenn. Ct. App. Nov. 2, 2016).

40. Waiver.

In all (except small) criminal offenses, the right to a trial by jury may be relinquished only by a valid written waiver. State v. Morgan, 598 S.W.2d 796, 1979 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1979).

Plaintiff, who requested trial by jury in original and amended pleadings, but went through seven years of trial without a jury, could not complain on appeal for first time of the lack of a jury. Albin v. Union Planters Nat'l Bank., 660 S.W.2d 784, 1983 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1983).

Without formal compliance with T.R. Crim. P. 23, the record should clearly show a voluntary relinquishment of the rights to be tried by a common law jury. State v. Bobo, 814 S.W.2d 353, 1991 Tenn. LEXIS 291 (Tenn. 1991).

A civil defendant waived his right to a jury trial by failing to appear at trial. Davis v. Ballard, 946 S.W.2d 816, 1996 Tenn. App. LEXIS 726 (Tenn. Ct. App. 1996).

Where the trial court did not address defendant as to his right to a jury trial, nor did defendant personally forgo this right, defendant did not relinquish his right to a jury trial by the acquiescence of his trial attorney. State v. Ellis, 953 S.W.2d 216, 1997 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. 1997).

Where defendant had not waived his right to a trial by jury in writing in the general sessions court, he still did not waive his right to a jury trial by his failure to demand a jury trial at the time of his appeal to the criminal court. State v. Jarnigan, 958 S.W.2d 135, 1997 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. 1997).

Appearance and objection of counsel for uninsured motorist carrier after a jury trial had been waived by all counsel present when the trial began came too late to prevent carrier's implied waiver of the right to a jury trial. Beal v. Doe, 987 S.W.2d 41, 1998 Tenn. App. LEXIS 700 (Tenn. Ct. App. 1998).

Borrower's pre-dispute contractual waiver of the right to a jury trial was permissible and not prohibited under Tenn. Const. art. 1, § 6 or Tenn. R. Civ. P. 39.01 where the lender presented three separate contracts containing jury-waiver provisions and where there were no allegations of fraud, overreaching, or unconscionability. Poole v. Union Planters Bank, N.A., 337 S.W.3d 771, 2010 Tenn. App. LEXIS 259 (Tenn. Ct. App. Apr. 8, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 942 (Tenn. Sept. 23, 2010).

41. Anonymous Jury.

Trial court did not abuse its discretion in empanelling an anonymous jury in defendant's trial for first-degree pre-meditated murder because there were strong reasons to protect the jury inasmuch as the trial court found that an apparent motive in committing the charged offense included defendant's desire to prevent the victim from going to police, and defendant had escaped once. Therefore, defendant's rights under U.S. Const. amends. 5, 6, and 14 and Tenn. Const. art. I, § 6 were not violated. State v. Ivy, 188 S.W.3d 132, 2006 Tenn. LEXIS 137 (Tenn. 2006), cert. denied, Ivy v. Tennessee, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200, 2006 U.S. LEXIS 6153 (2006).

Anonymous juries may be impaneled under Tennessee law. State v. Ivy, 188 S.W.3d 132, 2006 Tenn. LEXIS 137 (Tenn. 2006), cert. denied, Ivy v. Tennessee, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200, 2006 U.S. LEXIS 6153 (2006).

42. Late Night Deliberations.

Trial court erred in allowing jury deliberations to continue into the late-night hours, and because defense counsel protested and the record did not indicate that any unusual circumstances were present, a new trial was warranted. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

NOTES TO DECISIONS

1. Construction.

This constitutional guaranty must be liberally construed in favor of the individual. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

Tenn. Const. art. I, § 7, relating to unreasonable searches and seizures, is identical in intent and purpose with U.S. Const. amend. 4 so that Tennessee supreme court will not limit the state provision more stringently than the federal cases limit the federal provision and will regard such federal cases as particularly persuasive. Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 1968 Tenn. LEXIS 512 (1968); State v. Meadows, 745 S.W.2d 886, 1987 Tenn. Crim. App. LEXIS 2751 (Tenn. Crim. App. 1987).

The federal and state provisions against unreasonable searches and seizures are identical in purpose and therefore it is erroneous to conclude that Tenn. Const. art. I, § 7 is broader than U.S. Const. amend. 4, because it covers “possessions” while U.S. Const. amend. 4 covers only “effects.” State v. Wert, 550 S.W.2d 1, 1977 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. 1977).

The substance of these provisions is that an officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit a felony. Key v. State, 591 S.W.2d 793, 1979 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1979).

While this court has held that Tenn. Const. art. I, § 7 is identical in intent and purpose with U.S. Const. amend 4 and that “we should not limit it more stringently than federal cases limit the Fourth Amendment,” the fact remains that there are pronounced linguistic differences in the two provisions. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

The appropriate inquiry for a federal court considering a motion to suppress evidence seized by state police officers is whether the arrest, search, or seizure violated U.S. Const. amend. 4. The fact that the arrest, search or seizure may have violated state law is irrelevant as long as the standards developed under the federal constitution were not offended. This rule promotes uniformity in federal prosecutions and avoids the strange results of federal prosecutions, depending on the fortuity of the defendant's being arrested in one state or another. United States v. Wright, 16 F.3d 1429, 1994 FED App. 49P, 1994 U.S. App. LEXIS 2361 (6th Cir. 1994), cert. denied, 512 U.S. 1243, 114 S. Ct. 2759, 129 L. Ed. 2d 874, 1994 U.S. LEXIS 5027 (1994).

Because Tenn. Const. art. I, § 7 is identical in intent and purpose with U.S. Const. amend. 4, under both the federal and state constitutions, a brief investigatory stop simply must be based upon reasonable suspicion which is supported by specific and articulable facts. State v. Yeargan, 958 S.W.2d 626, 1997 Tenn. LEXIS 574 (Tenn. 1997).

The Tennessee constitution affords no more extensive protection with respect to pretextual stops than does the federal constitution. State v. Baker, 966 S.W.2d 429, 1997 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 1997).

Tenn. Const. art. I, § 7 is identical in intent and purpose with U.S. Const. amend. 4; thus, these constitutional protections are implicated only when a police officer's interaction with a citizen impermissibly intrudes upon the privacy or personal security of the citizen. State v. Daniel, 12 S.W.3d 420, 2000 Tenn. LEXIS 52 (Tenn. 2000).

2. Fundamental Nature.

At the very foundation of our state is the right of the people to be secure in their persons, houses, papers, and possessions. Infringement of such individual rights cannot be tolerated until we tire of democracy and are ready for communism or a despotism. The enforcement of no statute is of sufficient importance to justify indifference to the basic principles of our government. Cravens v. State, 148 Tenn. 517, 256 S.W. 431, 1923 Tenn. LEXIS 41 (1923); Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

3. Scope and Application.

Tenn. Const. art. I, § 7 against unreasonable searches and seizures, contemplates only searches and seizures made through governmental agencies, and under statutes attempting to authorize it and has no bearing upon the unauthorized acts of private persons, or of petty officers of the law, and the evidence secured by the unlawful acts and trespasses of such persons is admissible against the accused. Cohn v. State, 120 Tenn. 61, 109 S.W. 1149, 1907 Tenn. LEXIS 39, 17 L.R.A. (n.s.) 451, 15 Ann. Cas. 1201 (1907); Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Assurance of Tenn. Const. art. I, § 7 against unreasonable searches and seizures is not involved in a public inquiry into official conduct and examination of official records. Rushing v. Tennessee Crime Comm'n, 173 Tenn. 308, 117 S.W.2d 4, 1938 Tenn. LEXIS 18 (1938).

Tenn. Const. art. I, § 7 is not addressed alone to the legislature, but to every officer of the jurisdiction including the judiciary. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

Tenn. Const. art. I, § 7 only prohibits unreasonable searches. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

The prohibition against searches is against the occupied premises of another without a warrant. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

Where defendant was not a registered occupant of a motel room which was searched he lacked standing to attack the search. Nolan v. State, 588 S.W.2d 777, 1979 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1979), overruled, State v. Ronewicz, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1085 (Tenn. Crim. App. Dec. 26, 2012).

Merger of defendant's convictions for two counts of first-degree premeditated murder and two counts of first-degree felony murder, and his convictions for especially aggravated robbery and two counts of abuse of a corpse were appropriate because a deputy had probable cause to order a felony stop of the vehicle driven by defendant in order to effectuate an arrest of his co-defendant, the father of one of the victims. There was nothing unreasonable about police officers being apprehensive concerning the risks that were inherent in apprehending a murder suspect believed to have been armed. State v. Grogger, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. Nov. 17, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 365 (Tenn. Apr. 14, 2010), cert. denied, Grogger v. Tennessee, 562 U.S. 928, 131 S. Ct. 317, 178 L. Ed. 2d 207, 2010 U.S. LEXIS 7146 (U.S. 2010), dismissed, Grogger v. Johnson, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 46029 (M.D. Tenn. Apr. 5, 2016).

When a decedent's estate's trustee sued the decedent's nephew to recover funds the nephew transferred from the decedent's revocable living trust account, an order requiring an inventory of the nephew's storage unit did not violate the nephew's right to be free from unreasonable searches or seizures because no search by a government official was ordered. Johnston v. Johnston, — S.W.3d —, 2014 Tenn. App. LEXIS 124 (Tenn. Ct. App. Mar. 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 506 (Tenn. June 20, 2014), cert. denied, 190 L. Ed. 2d 365, 135 S. Ct. 482, — U.S. —, 2014 U.S. LEXIS 7451 (U.S. 2014).

4. “Possessions” — Meaning.

The word “possessions,” as here used, refers to property, real or personal, actually possessed or occupied. It does not include unoccupied lands such as wild or waste lands, but it does include the space of ground adjoining the dwelling house and the building thereon, within the same common fence, in daily use in connection with the conduct of family affairs. Welch v. State, 154 Tenn. 60, 289 S.W. 510, 1926 Tenn. LEXIS 103 (1926).

The word “possessions,” as used in Tenn. Const. art. I, § 7, includes more than the “curtilage.” It includes buildings in daily use in connection with and as a necessary part of farming operations. Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

Where the land on which evidence is found is not possessed as a part of the curtilage or used in the daily operation of the premises, the constitutional provisions against unreasonable searches and seizures do not apply. Chico v. State, 217 Tenn. 19, 394 S.W.2d 648, 1965 Tenn. LEXIS 515 (1965).

5. Warrants.

Second search of defendant's premises for whisky on the basis of search warrant used on first search was illegal and constituted unreasonable search and seizure even though second search was made within five days after date of warrant. McDonald v. State, 195 Tenn. 282, 259 S.W.2d 524, 1953 Tenn. LEXIS 335 (1953).

6. —In General.

Tenn. Const. art. I, § 7 specifically denounces “general warrants” permitting searches “without evidence of the fact committed” and personal seizures where “offences are not particularly described and supported by evidence” and obviously contemplates evidentiary support for the issuance of search warrants. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

Where a search warrant authorizes a quest for unneeded and unnecessary documents, not per se criminal, and during its execution other objects, in plain view, are seized — with or without any nexus — the result is a search pursuant to a general warrant. State v. Berry, 592 S.W.2d 553, 1980 Tenn. LEXIS 393 (Tenn. 1980), cert. denied, Tennessee v. Berry, 449 U.S. 887, 101 S. Ct. 241, 66 L. Ed. 2d 112, 1980 U.S. LEXIS 3403 (1980).

Trial court properly granted defendants' motion to suppress drugs and drug paraphernalia seized from their homes pursuant to search warrants because the warrants were invalid under the Fourth Amendment, as the district circuit court judge who issued the search warrants lacked jurisdiction to issue search warrants for defendants' residences that were located in a different judicial district. Nothing in the record established that the issuing judge obtained jurisdiction to issue the search warrants by interchange, designation, appointment, or other lawful means. State v. Frazier, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

6.5 —Execution.

Police officer's failure to abide by the terms of the search warrant during its execution rendered the blood draw unconstitutional where the search warrant required that the blood draw take place in the first county, but the officer transported defendant to a second county where the blood draw occurred, and the nurse who drew defendant's blood was not qualified to draw blood in the first county. State v. Nunnery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. July 13, 2017).

Legality of the initial entry into defendant's motel room was not dispositive of the suppression issue because law enforcement subsequently obtained a warrant to search the room and because defendant did not challenge the validity of the search warrant on appeal. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

Trial court did not err by denying defendant's motion to suppress a hammer that was found while executing a search warrant because the search did not exceed the scope of the warrant, as after the officers found the clothing that defendant had just washed hanging to dry, they continued to search a closet where they found the hammer, which the court found to be reasonable since the officers had gone to defendant's residence to search for his clothing and shoes. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

7. —Motion to Suppress.

Judgment granting defendant's motion to suppress was affirmed because: (1) Although the agent stated that he was aware of certain facts about drug traffickers' tendency to keep business records and cash on hand, he did not state that his observations and law enforcement experience led him to believe that drug trafficking was taking place at defendant's residence; and (2) Tennessee had not adopted the good faith exception. State v. Bearden, 326 S.W.3d 184, 2010 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 11, 2010).

Trial court did not err in denying appellant's motion to suppress evidence seized as a result of the searches of the residence and the storage unit where appellant failed to established the existence of a constitutional or statutory defect in the search warrant and appellant failed to make a substantial preliminary showing that the omission of the information regarding the consent search was deliberate or reckless. State v. Willis, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 13, 2015), aff'd, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016).

Trial court did not err in denying defendant's motion to suppress as the search of defendant's recreational vehicle (RV) was valid because, although the RV was not parked on the premises described in the search warrant, the RV belonged to defendant; it was parked in a private area immediately adjacent to the premises described in the search warrant, which belonged to defendant; and it was further associated with the premises described in the search warrant through the use of an electrical cord tethering the RV to the home; thus, by attaching the RV to the residence, defendant created a place, which was appurtenant to the described building in the search warrant and under the control of persons named in the search warrant. State v. Thompson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. Apr. 15, 2015).

Defendant's motion to suppress was improperly granted because the absence of defendant's name as an occupant of the premises in either the affidavit or the search warrant was not fatal to the search as the name of the occupant of a premises was not a constitutional requirement of a warrant to search a particular location; defendant's belongings were subject to be searched under the authority of a warrant directed at the entire residence; and the search of defendant's computer, which shared the other occupant's internet service and was connected to the same internet protocol address, was authorized by the search warrant particularly describing the place to be searched and the things to be seized, including computers. State v. Coblentz, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. June 10, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 756 (Tenn. Oct. 20, 2016).

In a case in which “process” had to be issued upon the application of the district attorney general of the district, defendant's motion to suppress was properly denied because the legislature intended the issuance of “process” in this statute to refer to the Tennessee Protection of Children Against Sexual Exploitation Act's injunction and forfeiture provisions, and, thus, “process” did not include a search warrant; and, if “process” included search warrants, the “except as otherwise provided” language of this statute would allow law enforcement to apply for a search warrant otherwise because law enforcement officers were authorized to request a search warrant under the rules of criminal procedure. State v. Miller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. July 3, 2017).

Trial court properly denied defendant's motion to suppress evidence a fellow dispatcher discovered because there was no Fourth Amendment violation in the discovery of images on defendant's cell phone, and thus, the subsequent searches and seizures of his phone and computer were not tainted by any illegality; the dispatcher was not acting with the government's knowledge or acquiescence and was motivated solely by his own private intent to play a joke on defendant when he discovered the images. State v. Spray, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 874 (Tenn. Crim. App. Sept. 26, 2017).

When officers entered the curtilage of defendant's home and retrieved trash bags from the trash can, they entered a constitutionally protected area and gathered evidence through an unlicensed physical intrusion, such that the trash pull was an unconstitutional, warrantless search; as the information remaining in the affidavit after the information relating to the trash pull was redacted was insufficient to establish probable cause, the trial court properly granted defendant's motion to suppress. State v. Weatherly, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. May 17, 2018).

Defendant's motion to suppress was properly denied because an occupant of the residence with defendant accepted a package containing narcotics addressed to defendant being placed on the front porch, although she denied being the recipient of the package, and offered to take the package back to the delivery company; and her actions constituted constructive possession and the necessary triggering event to allow the search warrant to be executed as she had the ability to exercise control over the package. State v. Bronson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. May 2, 2019).

Trial court did not err by denying defendant's motion to suppress, even though the officers' knock and talk at the motel room door went beyond a consensual encounter, because the officers had a warrant for the co-defendant's arrest and they had reason to believe that he was in the motel room due to tips they were given. State v. Jones, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 27, 2020).

8. —Choice of Law.

Where the affidavit supporting a Kentucky search warrant came from an agent of the Tennessee Bureau of Investigation, and the evidence to be seized was used in a crime occurring in Tennessee, and was specifically obtained for the purpose of turning it over to Tennessee officials for use in a Tennessee prosecution, there is little doubt that the warrant was obtained at the request of Tennessee officials, and was required to comply with Tennessee law. State v. Cauley, 863 S.W.2d 411, 1993 Tenn. LEXIS 354 (Tenn. 1993).

Tennessee law enforcement personnel may introduce extrinsic evidence in support of a search warrant issued in another state in a suppression hearing in Tennessee, in order to demonstrate that the search warrant complies with Tennessee law. This rule applies only when Tennessee law enforcement personnel have acted in good faith in obtaining and executing the search warrant in the foreign state. State v. Cauley, 863 S.W.2d 411, 1993 Tenn. LEXIS 354 (Tenn. 1993).

9. —Probable Cause.

Affidavit containing evidence from which a cautious magistrate exercising independent and neutral judgment could find probable cause for the issuance of the warrant was not insufficient as a matter of law. State v. Taylor, 763 S.W.2d 756, 1988 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. 1988).

Information upon which search warrant was based was not too stale to have provided adequate probable cause for the issuance of the warrant. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Detective's affidavit, which was based on information from a confidential informant, sufficiently established the probable cause necessary for the issuance of the resulting search warrant. State v. Ballard, 836 S.W.2d 560, 1992 Tenn. LEXIS 513 (Tenn. 1992).

Affidavit failed to reflect that informant was credible or that his information was reliable; therefore, search warrant was not issued upon probable cause and any evidence obtained as a result of the search pursuant to the warrant should have been suppressed. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Probable cause to support the issuance of a search warrant must appear in an affidavit, and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

Police officer's knowledge of suspect's reputation is not alone enough to constitute probable cause to arrest. State v. Bridges, 963 S.W.2d 487, 1997 Tenn. LEXIS 642 (Tenn. 1997).

In an animal cruelty case, because of the nature of the complaints to a police sergeant and the fact there was no evidence that the sergeant intentionally or recklessly misled the judge to obtain a search warrant, probable cause for the search warrant resulted from the sergeant's affidavit without the necessity of additional investigation. State v. Webb, 130 S.W.3d 799, 2003 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1233 (Tenn. Dec. 15, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 119 (Tenn. Feb. 2, 2004).

Affidavit established probable cause for a search warrant where it showed the basis of the affiant's firsthand knowledge that the defendant possessed cocaine and marijuana, it established the information's reliability given that the affiant shared the residence where the drugs were found and had a key that she used to allow the officers to execute the warrant, and the information was corroborated by an investigator's knowledge of the defendant's drug-related conviction. State v. Williams, 193 S.W.3d 502, 2006 Tenn. LEXIS 436 (Tenn. 2006).

Evidence presented at trial establishes that the officers had probable cause when they arrested defendant because before defendant was arrested, one of the victim's identified him to the police as the perpetrator and, as a victim in the case, the victim was a citizen informant whose statement was presumed to be reliable. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

Affidavit filed in support of the application for a search warrant was sufficient to support a finding of probable cause, as the investigator detailed his extensive training and experience in investigating internet crimes against children, provided detail in the area of child pornography and file sharing, and indicated that images were found on a computer at defendant's address through the use a file sharing program, refuting any claim defendant had an expectation of privacy in the files viewed. State v. Aguilar, 437 S.W.3d 889, 2013 Tenn. Crim. App. LEXIS 1101 (Tenn. Crim. App. Dec. 18, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 436 (Tenn. May 16, 2014).

Trial court properly found that the search warrant affidavit established probable cause to believe that tracking the co-conspirator's cell phone would result in evidence of a crime where it alleged that the phone was being used to further the sale, delivery, and conspiracy to sell or deliver cocaine and marijuana, investigators had intercepted a call from the target phone to defendant's bat-phone revealing that they were about to meet, and investigators believed that the co-conspirator was driving defendant's truck that had been linked to the conspiracy. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Trial court did not err by granting defendant's motion to suppress drug evidence because, under the totality of the circumstances test, the search warrant affidavit failed to establish ongoing criminal activity in the residence and therefore failed to establish probable cause, as the affidavit failed to provide any basis of knowledge and veracity for the cooperating individual's reliability. In addition, law enforcement conducted only one controlled drug-buy from the residence, and the conversation the affiant heard during the drug buy contained no information regarding past of future transactions. State v. Braden, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 323 (Tenn. Crim. App. May 2, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 612 (Tenn. Sept. 21, 2017).

Evidence recovered from a motel room was admissible because it was obtained pursuant to a warrant not at issue on appeal; it appeared there was probable cause to support the search pursuant to the search warrant because the affidavit alleged that officers smelled marijuana emanating from defendant's room. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

Defendant's motion to suppress was properly denied as probable cause existed for a search warrant because the facts in the affidavit created a sufficient nexus between defendant's cell phone and the victim's homicide as the affiant explained that a cell phone was recovered from defendant when he was arrested, that the cell phone had communications regarding the homicide, and that defendant had his cell phone at the time of the homicide. State v. Almahmmody, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 515 (Tenn. Crim. App. Aug. 23, 2019).

Trial court did not err by determining that the information in the search warrant affidavit was not stale and that probable cause existed for the issuance of the warrant, even though seven months passed between the officer's receipt of the relevant information and the issuance of the search warrant, because the specified IP address was used for downloading and sharing child pornography, and the IP address was assigned to defendant, who was the internet service subscriber at the location to be searched. State v. Owens, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 9, 2020).

10. —Informants.

Magistrate could have reasonably concluded that confidential informant had first-hand knowledge that defendant had cocaine at his residence where informant had been on defendant's property within 10 days prior to his signing the affidavit, had observed “a large quantity of cocaine,” and heard defendant refer to it as “coke,” and where the informant swore that he knew cocaine when he saw it and stated why. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Before a search warrant may be issued based upon an informant's information, an affiant must make sufficient disclosure of the events, activities, or allegations which have been corroborated in order that a magistrate may make a neutral and detached determination that an informant is credible or that his information is reliable. State v. Moon, 841 S.W.2d 336, 1992 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. 1992).

An affidavit stating that the affiant's belief was based upon information received from a “reputable and reliable” person failed to satisfy constitutional requirements since it provided no facts upon which the magistrate could determine the reliability of the informant. State v. Valentine, 911 S.W.2d 328, 1995 Tenn. LEXIS 652 (Tenn. 1995).

Motel clerk who called police at the request of the motel security officer to report a driver who appeared to be driving under the influence, and who gave her name and her status as a clerk at the motel, gave sufficient information about her relationship to the events to qualify as a known citizen informant for the presumption of reliability. State v. Luke, 995 S.W.2d 630, 1998 Tenn. Crim. App. LEXIS 1327 (Tenn. Crim. App. 1998).

Although informant, who was present in house where methamphetamine was being manufactured, was not a “citizen informant,” the affidavit established probable cause for the issuance of the search warrant because the informant had witnessed the process and equipment used to manufacture methamphetamine on the premises, and a field test identified finished product in the informant's possession sufficiently to demonstrate the reliability of the information. State v. Stevens, 989 S.W.2d 290, 1999 Tenn. LEXIS 62 (Tenn. 1999).

If the arresting officers rely in part on information from an informant in the criminal milieu, they must be able to demonstrate that the informant: (1) Has a basis of knowledge; and (2) Is credible. On the other hand, if the information contributing to the existence of probable cause has been gathered from an ordinary citizen, no showing of the informant's basis of knowledge and veracity is required. State v. Lewis, 36 S.W.3d 88, 2000 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 2000).

Denial of defendant's motion to suppress was affirmed; while a statement by defendant's girlfriend as she was being arrested for domestic violence at defendant's house that there were drugs in defendant's house was likely motivated by revenge, the affidavit for the search warrant was sufficient to qualify her as a citizen informant as the affidavit specifically identified her by name, it provided a particularized explanation for why she was in the residence and how she happened upon her information about the drugs, and it contained the corroborating information by the officer that he was aware of defendant having recently pled guilty to the sale or possession of cocaine. State v. Williams, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 8, 2005), aff'd, 193 S.W.3d 502, 2006 Tenn. LEXIS 436 (Tenn. 2006).

Trial court properly concluded that an affiant's information was not presumptively reliable as a citizen informant where the affidavit stated that she had told the officers about the defendant's cocaine possession only when she was in the midst of a domestic disturbance that led to her arrest and the defendant's arrest. State v. Williams, 193 S.W.3d 502, 2006 Tenn. LEXIS 436 (Tenn. 2006).

Defendant's convictions for animal cruelty were proper because the record supported the determination of the trial court that a kennel worker was a citizen informant and thus presumed to have been reliable; the record supported the determination of the trial court as to the validity of the search warrant. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Suppression motion was properly denied under Tenn. Const. art. I, § 7 where: (1) The search warrant affidavit under T.C.A. § 40-6-103 and Tenn. R. Crim. P. 41(c) met the Aguilar-Spinelli/Jacumin test by stating that a confidential informant (CI) had given information on narcotics trafficking resulting in several seizures of cocaine and marijuana and several felony narcotics arrests for cocaine and marijuana; (2) A specific number of seizures and arrests was not required; and (3) A specific number requirement for establishing the CI's credibility would have constituted a hyper-technical application of the Aguilar-Spinelli test. State v. Sales, 393 S.W.3d 236, 2012 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 17, 2012).

Wiretap application established that the confidential informant had personal knowledge about the drug operation where it provided that he learned information about defendant's involvement in the operation through his personal acquaintance with two co-conspirators. The applicable also established the informant's reliability where it provided that his information was consistent with information received from other confidential informants and had been corroborated by investigators. State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Probable cause did not exist to support the issuance of a search warrant under the United States and Tennessee Constitutions because an affidavit provided no basis for a confidential informant's reliability or credibility; a detective did not corroborate any information provided by the informant until after he executed the search warrant, and a check of a pseudoephedrine database confirmed only that the informant had purchased pseudoephedrine, not that he purchased it for defendant. However, the affidavit was not found to be misleading. State v. Mosley, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 26, 2016).

Defendants' motions to suppress were properly denied as, under the totality of the circumstances, the affidavit submitted in support of the search warrant was sufficient because the affidavit indicated the informant had been to the residence within the past 48 hours and witnessed methamphetamine being weighed by the second defendant; the second defendant identified the substance as methamphetamine; the informant had purchased the narcotic from the second defendant on prior occasions; an investigator stated that the informant had given true and correct information in prior investigations, and had given information leading to an arrest and conviction in a marijuana case; and a detective corroborated the informant's tip. State v. Alford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. May 17, 2017).

Defendant's motion to suppress was properly denied because, while a search warrant affidavit provided no basis of knowledge for an informant's information, thus failing the Aguilar-Spinelli test, the affidavit satisfied the applicable totality-of-the-circumstances test by stating sufficient police corroboration to cure the informant's unreliability, thus providing sufficient probable cause. State v. Ferguson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. Feb. 26, 2018).

Trial court properly determined that the information as to the credibility and veracity of the confidential informant (CI) in the affidavit supporting the search warrant was correct because the CI had been used on prior occasions, the police independently corroborated much of the information that the CI provided to the police, and nothing indicated that the CI was under the influence of heroin when he bought heroin from the seller. State v. Haithcote, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. Aug. 11, 2020).

11. —Affidavits.

In concluding that the court of criminal appeals erred in finding a search warrant affidavit insufficient to establish probable cause, the Supreme Court overruled State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989), and adopted the totality-of-the-circumstances analysis for determining whether an affidavit establishes probable cause for issuance of a warrant under Tenn. Const. art. I, § 7. State v. Tuttle, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

A search warrant's affidavit may be impeached only when: (1) A false statement was made with the intent to deceive the court, whether material or immaterial to the issue of probable cause; or (2) A false statement, essential to the establishment of probable cause, was recklessly made. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Neither U.S. Const. amend. 4 nor Tenn. Const. art. I, § 7 were violated by consideration of the two affidavits in this case to determine probable cause to issue the second warrant. State v. Smith, 836 S.W.2d 137, 1992 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1992).

In determining the sufficiency of the description of the items to be seized, the description given in the warrant is not the only one to be considered: by the express reference to and incorporation of the affidavit, the warrant may be validated by the description of the items to be seized contained in the affidavit. State v. Meeks, 867 S.W.2d 361, 1993 Tenn. Crim. App. LEXIS 503 (Tenn. Crim. App. 1993), cert. denied, Meeks v. Tennessee, 510 U.S. 1168, 114 S. Ct. 1200, 127 L. Ed. 2d 548, 1994 U.S. LEXIS 1998 (1994).

Affidavit of search warrant properly referred to defendant's criminal record and results of an earlier search of his residence. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

An affidavit containing hearsay information supplied by a confidential informant cannot support a finding of probable cause unless it also contains factual information concerning the informant's basis of knowledge and credibility. State v. Henning, 975 S.W.2d 290, 1998 Tenn. LEXIS 370 (Tenn. 1998).

Search warrant failed for lack of probable cause where the warrant affidavit set forth only conclusory statements that did not explain why the observed activity indicated an illegal act. State v. Norris, 47 S.W.3d 457, 2000 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. 2000).

Affidavit provided the following facts: (1) Upon receiving an anonymous tip that someone was manufacturing methamphetamine at the defendants' residence, one deputy smelled ether coming from the area of defendants' residence; (2) As the deputy approached defendants' residence, he smelled both ether and anhydrous ammonia coming from inside of the residence; (3) The deputy also heard people running inside of the residence; and (4) Based upon his prior experience, the deputy associated his observations with the operation of a methamphetamine laboratory. Those facts in combination provided more than sufficient independent police corroboration to compensate for deficiencies in meeting the two-prong test under State v. Jacumin, 778 S.W.2d 430, 432, 1989 Tenn. LEXIS 455 (Tenn. 1989); therefore, the information provided in the affidavit was sufficient to establish probable cause for the issuance of a search warrant. State v. Carter, 160 S.W.3d 526, 2005 Tenn. LEXIS 224 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 365 (Tenn. Apr. 18, 2005), cert. denied, Carter v. Tennessee , 547 U.S. 1081, 126 S. Ct. 1797, 164 L. Ed. 2d 536, 2006 U.S. LEXIS 3098 (2006).

Search warrant affidavit did not contain sufficient facts to establish probable cause to believe that drugs would be found inside defendant's home; the affidavit contained no facts regarding the location of drugs inside defendant's residence and only an inference from a police detective that drug sales were associated with defendant's residence. State v. Saine, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 4, 2008), aff'd in part, rev'd in part, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Granting of defendant's motion to suppress the evidence against him in his criminal trial was proper because the search warrant was defective. Although the affidavit contained information establishing a nexus between defendant's apartment and criminal activity, it contained no information tending to establish how long that nexus would persist; thus, the information in the affidavit became stale as soon as enough time had passed for such a one-time seller to leave the apartment. State v. Archibald, 334 S.W.3d 212, 2010 Tenn. Crim. App. LEXIS 125 (Tenn. Crim. App. Feb. 12, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 750 (Tenn. Aug. 25, 2010).

Even though the trial court erred by denying defendant's motion to suppress evidence obtained as a result of the search warrant, as the court could not conclude that the information contained in the affidavit provided sufficient probable cause where it failed to indicate the basis of the codefendant's credibility or the reliability of his information, the error was harmless because there was substantial other evidence upon which the jury could find defendant guilty. State v. Pierce, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 643 (Tenn. Aug. 13, 2015).

Search warrant for defendant's property was not issued upon probable cause, as there was nothing in the affidavit connecting the drug conspiracy concerning defendant's son to defendant or his residence. In addition, the affidavit contained false statements that were recklessly made concerning people offloading marijuana at defendant's property, which were material, as one was made in connection with the only criminal activity alleged to have occurred at defendant's residence. State v. Tuttle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 8, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 5, 2015), aff'd in part, rev'd in part, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

Face of the search warrant affidavit, which stated that the address was a residence of defendant's mother and that defendant visited and resided at the address, taken together with defendant's oral assertion of standing, were sufficient to preclude the trial court from relying on lack of standing to deny a hearing on defendant's motion to challenge the search. State v. Willis, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016), cert. denied, Willis v. Tennessee, 197 L. Ed. 2d 466, 137 S. Ct. 1224, — U.S. —, 2017 U.S. LEXIS 1710 (U.S. Mar. 6, 2017).

Trial court did not err in granting defendant's motion to suppress the drugs found in the residence on the basis that the affidavit in support of the search warrant failed to establish ongoing criminal activity at the home and, therefore, failed to establish probable cause because the affidavit failed to provide any basis of knowledge and veracity for the cooperating individual's claim that the residents were conducting ongoing drug sales from the home and, therefore, was not reliable; and the affidavit failed to show how long the nexus between the drug dealing and the residence would exist. State v. Braden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 551 (Tenn. Crim. App. July 27, 2016).

Trial court erred by granting defendant's motion to suppress the blood test results because a clerical error in the search warrant affidavit did not invalidate the warrant, as the one instance of an inconsistent name in the affidavit when there were five other correct references to defendant by name did not void the warrant. State v. Szabo, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Oct. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 141 (Tenn. Feb. 21, 2017).

Search warrant affidavit was sufficient because facts in the affidavit established a substantial basis on which a magistrate could conclude proof of defendant's involvement in a victim's disappearance or death would be found at defendant's home, so a search warrant for defendant's residence was supported by probable cause. State v. Hollingsworth, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 352 (Tenn. May 24, 2017).

Defendant's motion to suppress was improperly granted because the affidavit in support of the search warrant gave rise to probable cause as it established the informant's veracity and basis of knowledge because the affidavit indicated that the informant had been to a residence and had purchased synthetic cannabinoids from defendant; officers staked out defendant's residence and observed a car pull up, they stopped the car and searched it, they found marijuana in the car, and defendant's girlfriend, who was in the car, told police that defendant sold synthetic cannabinoids; and defendant's sister-in-law told officers that she and defendant's brother had gotten synthetic cannabinoids from defendant. State v. Starnes, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Nov. 29, 2017).

Denial of defendant's motion to suppress was appropriate because the search warrant at issue was valid as the affidavit of an investigator detailed that a confidential informant entered defendant's home and bought drugs from defendant and that the investigator monitored the transaction over audio. While the investigator was imprecise in the investigator's language, the investigator's statement was not a misrepresentation, and defendant failed to establish that the investigator recklessly included false information in the affidavit. State v. Hartsfield, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 118 (Tenn. Crim. App. Feb. 20, 2018).

Trial court properly denied defendant's motion to suppress the results of his blood draw because the affidavit in support of the search warrant contained sufficient information to establish probable cause for the search; a second officer corroborated a deputy's account of defendant's having lost his balance when he first exited his vehicle and of the alcohol smell in the vehicle and in a cup, which contents had spilled onto the floorboard of the vehicle. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Mar. 27, 2018).

Defendant's petition for post-conviction relief was properly denied because, although counsel was deficient for failing to file a motion to suppress evidence of methamphetamine manufacturing based on the methamphetamine and ion scan obtained from the July 13 search of defendant's home as the information in the affidavit did not establish probable cause to believe that evidence of manufacturing methamphetamine would still be in the home at the time of the search, she failed to show that suppression of that evidence would have changed the outcome of her trial. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Defendant was not entitled to suppress the statement which defendant made to a police officer during a search of defendant's home because probable cause exited for a magistrate to issue a search warrant in that the information in the affidavit supporting the search was not stale and defendant failed to establish any prejudice as a result of a police investigator's testimony at the suppression hearing. State v. Boykin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 124 (Tenn. Crim. App. Feb. 21, 2019).

Information in the affidavit established a nexus between defendant's cell phone and the criminal activity, as well as probable cause to believe that defendant's cell phone was used in the perpetration of the offense and that evidence of the offense would be on the cell phone because the affidavit identified the cell phone as belonging to defendant and stated that, according to one of the victims, defendant utilized the cell phone to contact the victim's brother during the victim's abduction. The brother confirmed that after he received a call from the victim reporting the abduction, he received a call from a private number and spoke to an unknown male, who threatened to harm the victim if he did not pay $30,000. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

Trial court had probable cause to issue the search warrant for defendant's DNA because the affidavit stated that defendant, by his own admission, went to the victim's home on the day of the murder to check on her, he said she did not answer, so he then went back home, and immediately washed his clothing and shoes, and defendant's girlfriend saw what appeared to be blood on his arm. Defendant told two separate witnesses about a dream in which the victim was murdered by a suspect beating her with a hammer, he told his girlfriend that the police confiscated the “wrong” hammer, police took fingernail scrapings from underneath the victim's fingernails and DNA testing showed two profiles: one male and the other the victims. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

Trial court did not err in its determination that the information contained in the affidavit was sufficient to establish probable cause for the issuance of a search warrant because the affidavit established the confidential informant's basis of knowledge in that he knew defendant sold methamphetamine, he had been at defendant's residence within the last 72 hours, and while at the residence had seen methamphetamine in defendant's possession, which was enough to establish a sufficient nexus between the criminal activity, the place to be searched, and the items to be seized. State v. Borden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 515 (Tenn. Crim. App. July 27, 2020).

Nexus of activity at the seller's home and the conduct of the confidential informant (CI) were not too remote to establish probable cause to obtain a search warrant and an arrest warrant of defendant because the drug sale, during which defendant provided heroin to the seller who sold it to the CI, was closely monitored and the search warrant was issued the same day as the sale. State v. Haithcote, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. Aug. 11, 2020).

Trial court erred in denying defendant's motion to suppress evidence obtained pursuant to a search warrant for the contents of defendant's cell phone because the warrant lacked the required particularity as the affidavit sought an unfettered search of all data on the cell phone and did not specify the specific types of data which had relevance to the investigation or the factual basis for the affiant's belief that the data existed. The error was harmless beyond a reasonable doubt as the proof at trial of defendant's guilt was overwhelming. State v. McLawhorn, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 686 (Tenn. Crim. App. Oct. 20, 2020).

12. —Descriptions.

Stolen property to be seized must not only be described as “stolen” but referred to with specificity, e.g., “stereo tapes or players;” similarly, a search warrant must describe those items as contraband when they are illegal by virtue of the nature of the use. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Use of the term “drugs,” instead of more specific description such as “marijuana,” was an insufficient basis for the issuance of a search warrant. State v. Johnson, 854 S.W.2d 897, 1993 Tenn. Crim. App. LEXIS 16 (Tenn. Crim. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 119 (Tenn. Mar. 22, 1993).

Even though a more particular description of stolen property could have been obtained from victims and should have been included in warrant to search defendant's house, the search warrant was partially valid in that the description of the victims' checkbooks was sufficient, since it focused the executing officer upon a search for checkbooks designated for the victims' account or accounts and including their names. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

Where directions stated in a warrant were essentially accurate, defendant was named therein and the affidavit stated that defendant resided in, occupied, or possessed property to be searched, the possibility of any ambiguity in the location of defendant's residence which might have arisen in the execution of the warrant was negated by officer's actual knowledge that the property was located, in fact, as described in the warrant. State v. Bostic, 898 S.W.2d 242, 1994 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 93 (Tenn. Mar. 6, 1995); State v. Conatser, 958 S.W.2d 357, 1997 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1997).

In a double first-degree murder and especially aggravated robbery case where the purpose of the search was not to find specific property, but to find property of a specific character (i.e., items that may have been taken from the restaurants and the victims, murder weapons, and financial records), the warrants described the character of the property with sufficient particularity to enable the searcher to reasonably ascertain and identify the items subject to seizure; therefore, these descriptions satisfied the particularity requirement. State v. Reid, 91 S.W.3d 247, 2002 Tenn. LEXIS 550 (Tenn. 2002), cert. denied, Reid v. Tennessee, 540 U.S. 828, 124 S. Ct. 56, 157 L. Ed. 2d 52, 2003 U.S. LEXIS 6131 (2003).

Prosecution for attempted aggravated rape was properly and timely commenced with in the eight-year statute of limitations for attempted aggravated rape, T.C.A. § 40-2-101(b)(1)-(2), by the filing of the “John Doe” arrest warrant because The “John Doe” designation in the warrant, coupled with the detailed DNA profile of the assailant, identified defendant with “reasonable certainty” as required by the Fourth Amendment, Tenn. Const. art. I, § 7, T.C.A. § 40-6-208, and Tenn. R. Crim. P. 4(c)(1)(B). State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Criminal prosecution is commenced if, within the statute of limitations for a particular offense, a warrant is issued identifying the defendant by gender and his or her unique DNA profile; a DNA profile exclusively identifies an accused with nearly irrefutable precision and, as a general rule, satisfies the particularity requirements of the Fourth Amendment to the United States Constitution and Tenn. Const. art. I, § 7. State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Search warrant for defendant's home was not unconstitutionally broad where the items introduced into evidence at trial were described with sufficient particularity in the warrant as it provided a long list of items including and relating to the use and sale of controlled substances State v. Lockhart, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. Sept. 8, 2015), cert. denied, Lockhart v. Tennessee, 136 S. Ct. 2471, 195 L. Ed. 2d 809, 2016 U.S. LEXIS 3909 (U.S. 2016).

Search warrants for defendants' residences were valid where the trial court reasoned that given the time period between the commission of the burglary and the small size of the items of jewelry it was reasonable to infer that the items would be stored in defendants' residences, and the warrants described the property sought as “$140,000 worth of jewelry” stolen from the jewelry store. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

13. —Necessity.

When one desires to search the occupied premises of another, he must procure a search warrant in the manner prescribed by statute. Welch v. State, 154 Tenn. 60, 289 S.W. 510, 1926 Tenn. LEXIS 103 (1926). See Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

Though the statutes authorize search only by search warrant, or by order of the magistrate and in his presence, searches are allowable at common law in all cases where a person is lawfully arrested, for the purpose of taking from him dangerous weapons or articles which may be lawfully used in evidence against him, and are not violative of Tenn. Const. art. I, § 7. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Ordinarily officers searching occupied, fenced, private property must first obtain consent or a warrant, otherwise they proceed at the risk that evidence obtained may be suppressed and when a warrantless search is challenged, an exception to the search warrant requirement must be shown. State v. Lakin, 588 S.W.2d 544, 1979 Tenn. LEXIS 498 (Tenn. 1979).

The validity of a search warrant is of no consequence if the search is justified on other grounds. State v. Doelman, 620 S.W.2d 96, 1981 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. 1981).

Portion of defendants' farm which was primarily wild and unoccupied land was not protected from warrantless search by either the federal or state constitution. State v. Doelman, 620 S.W.2d 96, 1981 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. 1981).

Defendant's convictions for selling and conspiring to sell cocaine were improper because he was not under arrest at the time of the search of his person and therefore, the warrantless search was invalid. State v. Ingram, 331 S.W.3d 746, 2011 Tenn. LEXIS 4 (Tenn. Jan. 21, 2011).

14. —Requisites.

Tenn. Const. art. I, § 7 was intended to protect all men's homes. The legislature directed the procedure under Tenn. Const. art. I, § 7: and the search warrant must conform to both the constitutional and statutory requirements. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Because general warrants are forbidden, the place to be searched must be sufficiently described to the magistrate to enable him so to describe it in the warrant that the officer will have no discretion as to where he may search. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

Where warrant was issued on the affidavit of a police officer and affidavit stated that informant observed the activity “in the past 72 hours” there was a sufficient showing of the time of the observation to determine probable cause without stating the exact date. State v. McCormick, 584 S.W.2d 821, 1979 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1979).

An affidavit showing probable cause may be based on hearsay information and need not reflect the direct personal observations of the affiant; however, where the affiant relies on hearsay information from a confidential informant the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed … was credible or his information reliable. State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989).

The standard by which probable cause will be measured to see if the issuance of a search warrant is proper under Tenn. Const. art. I, § 7 is the two-pronged “basis of knowledge” and “veracity” test (not to be applied hypertechnically) of Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 1964 U.S. LEXIS 994 (1964) and Spinelli v. United States , 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, 1969 U.S. LEXIS 2701 (1969) rather than the “totality of the circumstances” test voiced in Illinois v. Gates , 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 1983 U.S. LEXIS 54 (1983). State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989).

Defendant's motion to suppress the evidence of defendant's blood alcohol concentration level obtained pursuant to a search warrant was properly granted because, based upon the court's discrediting the testimony from the magistrate and the officer, the inconsistent testimony of each witness, and the absence of a definitive explanation for the time of issuance discrepancies during the suppression hearing, the record did not preponderate against the trial court's determination that the discrepancies were not mere technical violations or good faith mistakes. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

15. —Validity.

Where liquor is the object of search, a general description, “intoxicating liquors,” would be sufficient description, but where the affidavit charges “making, handling, or transporting whisky,” a warrant directing search for “said articles” is insufficient. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

A search warrant based upon an affidavit of the sheriff made on the information and belief of that officer that probable cause existed to justify the writ is insufficient and void where the character of his information is not disclosed; and convictions for violation of the liquor laws is not supported by evidence so procured. Cravens v. State, 148 Tenn. 517, 256 S.W. 431, 1923 Tenn. LEXIS 41 (1923).

If the language of the warrant is sufficient to enable the officer executing it to identify the property with reasonable certainty and will enable a prudent officer to locate the property from the face of the warrant, it is sufficient. Bowling v. State, 219 Tenn. 224, 408 S.W.2d 660, 1966 Tenn. LEXIS 519 (1966).

Search warrant which identified automobile by license number was sufficient even though it described the vehicle by a different model year and color. Bowling v. State, 219 Tenn. 224, 408 S.W.2d 660, 1966 Tenn. LEXIS 519 (1966).

Where bank and personal documents were seized in order to establish proof of possession of the premises and ultimately the drugs, and drug paraphernalia were seized to prove that drugs were kept on the premises, seizures of these items were lawful, even though they were not specifically described in the search warrant. Armstrong v. State, 548 S.W.2d 334, 1976 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1976).

A fraudulent misrepresentation of a material fact will invalidate a search warrant. State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

A search warrant directed against a multi-unit dwelling is invalid unless it describes the subunit intended to be searched with sufficient definiteness to exclude the search of an unintended subunit. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

In cases where the police are understandably misled into believing that a house was a single dwelling unit, the courts have recognized an exception to the rule that evidence must be suppressed if the search warrant did not specifically signify the subunit to be searched. State v. Stinnett, 629 S.W.2d 1, 1982 Tenn. LEXIS 386 (Tenn. 1982).

Search warrant did not fail to allege a crime where it provided that “marijuana plants were growing on the described property”; rather the search warrant properly alleged an illegal activity. State v. Smith, 867 S.W.2d 343, 1993 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1993).

A facially valid search warrant may only come under attack when the defense establishes that the search warrant was procured by officers through perjury or coercion. State v. Yeomans, 10 S.W.3d 293, 1999 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. 1999).

Allegations of negligence of innocent mistakes are insufficient to invalidate a search warrant. State v. Yeomans, 10 S.W.3d 293, 1999 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. 1999).

In order to be entitled to relief from an invalid search warrant, a defendant must show that a witness' reckless statements were necessary to the finding of probable cause. State v. Yeomans, 10 S.W.3d 293, 1999 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. 1999).

Absence of a specific date in the warrant as to when the crimes occurred did not make the warrant invalid, as the affidavit accompanying the search warrant contained information that “for some months defendant had been engaging in” illegal activity that was of a continuing nature and was described in the affidavit, such that a specific date as to when the illegal activity was observed was not necessary. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

Since there was ongoing criminal activity, the information in the search warrant affidavit was not stale. There was continuous contact and references to illegal drug activity between another individual and defendant from April 20, 2005, until September 1, 2005; the search warrant was issued on September 12, 2005; and several of those references to illegal activity occurred after the transaction at defendant's residence on July 11, 2005. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Defendant's drug convictions were improper because the warrant did not comply with the requirements of Tenn. R. Crim. P. 41. The judge's error in inadvertently writing “p.m.” instead of “a.m.” on the original and defendant's copy of the search warrant rendered the warrant invalid because it failed to comply with the mandatory requirements the rule; therefore, the resulting search was illegal, and the evidence seized pursuant to the search warrant was required to be suppressed. State v. Hayes, 337 S.W.3d 235, 2010 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 18, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 152 (Tenn. Feb. 17, 2011).

Appellate court lack jurisdiction to consider defendant's appeal because the certified question of law regarding the legality of the warrantless entry into defendant's home and the seizure of defendant from his doorway was not dispositive of the case where, even if a police officer detained defendant in a manner that exceeded constitutional limits, the search warrant—based on anonymous tips and the smell of marijuana all of which were known before the officer placed his foot inside the residence and physically seized defendant—remained valid and the police obtained no information or evidence to secure the warrant as a result of seizing and detaining defendant before execution of the search warrant. State v. Snider, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1069 (Tenn. Dec. 14, 2015).

Because the holding that the execution of search warrants was unconstitutional was based on a violation of the United States and Tennessee Constitutions, the Exclusionary Reform Act, T.C.A. § 40-6-108, did not apply. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

Magistrate did not have authority to issue search warrants for defendants' homes because the magistrate issued the warrants for property located outside his judicial district; because the magistrate, who was a circuit court judge, did not have the authority to issue the search warrants for defendants' homes located outside of his district, the search warrants were void ab initio, and the searches of defendants' homes were unconstitutional. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Sept. 25, 2017), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 537 (Tenn. Sept. 26, 2018).

16. —Premises Covered.

The search of an automobile on the same premises as a building specifically designated for search was not an unreasonable search even though only the building was indicated in the warrant. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

A warrant authorizing the search of a dwelling house “including all of the buildings, outhouses and vehicles found thereon” authorized the search of a millshed not within the fence which enclosed the dwelling but located about 220 feet from the residence and across a public road. Peters v. State, 187 Tenn. 45, 187 Tenn. 455, 215 S.W.2d 822, 1948 Tenn. LEXIS 451 (1948).

Search warrant drawn in a general manner so as to enable the officers to search multiple premises, some of which were in possession and occupied by strangers to the process, was invalid. Johnson v. State, 208 Tenn. 620, 348 S.W.2d 295, 1961 Tenn. LEXIS 331 (1961); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Search warrant authorizing search of premises of named individuals at specified address including outbuildings and automobiles on the premises did not authorize search of automobile of another person found on the premises as such third person was a stranger to the process. State v. Sircy, 215 Tenn. 1, 383 S.W.2d 37, 1964 Tenn. LEXIS 534 (1964).

Where a defendant claimed to have moved out of the apartment described in the search warrant, but he continued to spend time there regularly, and at the time the search warrant was served he was in exclusive possession and control of the premises, the court held that the warrant was not defective and that marihuana seized from the premises was admissible in defendant's trial for possession. Finger v. State, 515 S.W.2d 897, 1974 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. 1974).

Search warrant authorizing police to search premises of defendant did not authorize police to seize purse of visitor where the officers executing the warrant knew or should have known: (1) That the visitor rather than the defendant owned the purse; and (2) That, under the circumstances, there was no opportunity for anyone to have hidden the cocaine suspected to be on the premises. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

To determine the proper scope of a premises warrant, the court applied the following rule set forth in People v. McCabe, 144 Cal. App.3d 827, 1983 Cal. App. LEXIS 1875, 192 Cal. Rptr. 635 (1983): the police may, while executing a premises search warrant, lawfully search the personal effects of a visitor, on the proper assumption that all personal property belongs to the resident of the premises, under specific conditions: (1) If the visitor's personal items might serve as a plausible repository of the object of the search, it may nonetheless be seized unless officers know the property belongs to the visitor; (2) If officers know the property belongs to the visitor, they may not rely on the authority conferred by the search warrant even though it is a plausible repository for the contraband; and (3) If someone within the premises has had the opportunity to conceal the contraband within the personal effects of the visitor immediately prior to the execution of the search warrant, officers may nonetheless conduct the search. State v. Thomas, 818 S.W.2d 350, 1991 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 350 (Tenn. Sept. 9, 1991), appeal denied, State v. Lentz, — S.W.2d —, 1991 Tenn. LEXIS 353 (Tenn. Sept. 9, 1991).

Search of defendant's house was unreasonable where Franklin County investigator, though not involved with either of the robberies specifically mentioned in the affidavit, accompanied agent to the defendant's home, participated in the search, and directed the Grundy County officers to seize objects for him, and items were seized which were irrelevant to the specific crime suggested by the warrant. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

Search warrant that identified the church's address in the warrant, along with defendant's office at the church as the area to be searched, met the particularity requirement; while several buildings were located at the street address contained in the search warrant, all of the buildings comprised the church and did not qualify as premises “occupied by strangers.” State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

General rule is that a search warrant for a given location authorizes the search of items belonging to an owner or occupant of the premises, even if that person is not named in the warrant. State v. Coblentz, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. June 10, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 756 (Tenn. Oct. 20, 2016).

17. —Knock and Announce.

Compliance with the “knock and announce” doctrine is not required if the officers have a reasonable suspicion that knocking and announcing would be dangerous, futile or allow the destruction of evidence. State v. Stepherson, 15 S.W.3d 898, 1999 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. 1999).

Trial court erred in concluding that a residential search and seizure were illegal under U.S. Const. amend. 4 and Tenn. Const. art. I, § 7, based on an officer's lack of reasonable suspicion to justify the officer's presence on the premises; the court recognized the validity of the “knock and announce” procedure, found that the officer had valid consent to enter after being told to come inside, and there was no requirement that the officer give the officer's identification at the time of knocking. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Exigent circumstances existed which justified the issuance of a “no knock” warrant because defendant had drugs inside his house, the residence was equipped with a surveillance system, and any evidence could be destroyed quickly due to defendant's ability to monitor the activity outside the residence. State v. Perry, 178 S.W.3d 739, 2005 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 717 (Tenn. Aug. 22, 2005).

18. Search and Seizure.

Tenn. Const. art. I, § 7 had no application even though officers found illegal area outside area described in search warrant where area in which whiskey was found was not part of curtilage or used in daily operation of defendant's premises. Norton v. State, 207 Tenn. 656, 343 S.W.2d 361, 1960 Tenn. LEXIS 506 (1960); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

There is no definite formula for determination of reasonableness or unreasonableness of a search, but each case is bottomed on its facts. Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925, 1963 Tenn. LEXIS 353 (1963); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

A “search” as applied under Tenn. Const. art. I, § 7 means searches and seizures by an examination of a person's home, buildings, premises, his person or the like with a view of discovering contraband, illicit stolen property or some evidence of guilt to be used in a criminal prosecution against him and implies invasion and quest which in turn implies some sort of force, actual or constructive, much or little. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, 1965 Tenn. LEXIS 606 (1965), cert. denied, Lester v. Tennessee, 383 U.S. 952, 86 S. Ct. 1214, 16 L. Ed. 2d 214, 1966 U.S. LEXIS 2090 (1966).

No search was involved where officer looked into station wagon and wrote down serial number of television set which he observed without touching or entering vehicle. Chadwick v. State, 1 Tenn. Crim. App. 72, 429 S.W.2d 135, 1968 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. 1968).

Where a warrantless search was made of defendant's trash dumpster and the record was not sufficient to justify treating the dumpster as the receptacle of abandoned property, the search was unreasonable and the evidence seized should have been excluded. Bolen v. State, 544 S.W.2d 918, 1976 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. 1976).

The constitutional provision forbidding the government and its officers to invade private property inures to the protection of the person in possession and does not extend to third persons. Daniels v. State, 550 S.W.2d 958, 1976 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. 1976).

The five basic exceptions to the requirement for a search warrant are consent; incident to a lawful arrest; probable cause to search with exigent circumstances; in hot pursuit; and a stop and frisk situation. Taylor v. State, 551 S.W.2d 331, 1976 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1976).

Inserting and turning a key to determine whether it fits a lock is not an unlawful search and seizure. Cole v. State, 858 S.W.2d 915, 1993 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. 1993).

No constitutional right was violated when police officer merely inserted a key, found at a crime scene, into an apartment door accessible from a common hallway and determined only that the key, lawfully acquired, could turn the tumbler. Cole v. State, 858 S.W.2d 915, 1993 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. 1993).

Police officer's actions of getting on his hands and knees with his head very near to the ground, and looking into the garage, constituted a warrantless search in violation of defendant's constitutional rights. State v. Bowling, 867 S.W.2d 338, 1993 Tenn. Crim. App. LEXIS 42 (Tenn. Crim. App. 1993).

A vehicle search conducted as part of an effort to prevent visitors from smuggling drugs into prison was reasonable despite the absence of a warrant, probable cause, or reasonable suspicion. State v. Putt, 955 S.W.2d 640, 1997 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1997).

Where initial contact between officer and suspect is not accompanied by physical force or show of authority, there is no seizure. State v. Wilhoit, 962 S.W.2d 482, 1997 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. 1997).

Warrantless search or seizure is presumed unreasonable, and evidence discovered as a result suppressed, unless state demonstrates search or seizure was conducted pursuant to one of the narrowly defined exceptions. State v. Bridges, 963 S.W.2d 487, 1997 Tenn. LEXIS 642 (Tenn. 1997).

A “seizure” implicating constitutional concerns occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. State v. Daniel, 12 S.W.3d 420, 2000 Tenn. LEXIS 52 (Tenn. 2000).

Where transportation regulations T.C.A. § 65-15-111(a) and (b) limited the scope of the search of defendant's commercial motor carrier but did not limit the discretion of the officer in the field of when to conduct a search, the decision to perform a safety inspection was arbitrary and unpredictable; the regulatory scheme was not a constitutionally adequate substitute for a warrant and the trial court did not abuse its discretion by granting defendant's motion to suppress. State v. McClure, 74 S.W.3d 362, 2001 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. 2001).

Warrantless search of defendant's residence, made pursuant to a written condition of her parole, was reasonable under the U.S. Const. amend. IV and Tenn. Const. art. I, § 7, even if made without any reasonable, individualized, or particularized suspicion; under the totality of the circumstances, the police officer's decision to search defendant's residence was not unreasonable. There was no proof that the officer acted for any reason other than the furtherance of legitimate law enforcement concerns as defendant had been convicted of drug offenses in two states and the officer had information from an informant that she was involved in selling crack cocaine; he verified defendant's parole status and the warrantless search condition before he searched her residence and neither the search of defendant's vehicle nor that of her residence was unreasonably lengthy. That the total time of defendant's detention might have been at most two hours and included a short trip by defendant in her own vehicle did not so prolong the detention as to make the search unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

Parole condition requiring that the parolee submit to warrantless searches is reasonable in light of the parolee's significantly diminished privacy interests, the goals sought to be attained by early release, and society's legitimate interest in protecting itself against recidivism; therefore, the Tennessee Constitution permits a parolee to be searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers. Importantly, such searches may be undertaken only if the searching officer has prior knowledge of the parolee's status as subject to such searches; the totality of the circumstances surrounding a warrantless, suspicionless search of a parolee must be examined to determine whether the search is constitutionally unreasonable. State v. Turner, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

Trial court did not err in denying defendant's motion to suppress because the officer's warrantless search of the vehicle was permissible based on the automobile exception and the officer's reasonable belief that the vehicle contained marijuana due to an odor emanating from vehicle and the plain view exception based on his observation of what he believed was marijuana in a cup on the floor of the vehicle. State v. Gill, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 91 (Tenn. Crim. App. Feb. 11, 2019).

In defendants trial for aggravated rape and aggravated sexual battery, the trial court erred in denying defendant's motion to suppress evidence seized during the search of defendant's cell phone, but the error was harmless because the record was replete with additional, significant evidence supporting defendant's convictions, including his own testimony that other videos showed him squeezing a water bottle inserted into the victim's anus. State v. Banks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. Oct. 4, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 181 (Tenn. Mar. 26, 2020).

19. —In General.

The issue in each case is whether or not a particular search or seizure was reasonable under all the facts and circumstances. State v. Lakin, 588 S.W.2d 544, 1979 Tenn. LEXIS 498 (Tenn. 1979).

When the car was parked on a public street and accomplices could have removed the vehicle or the stolen items had they been permitted to remain undisturbed, the officer did not need to obtain a warrant to search the car at the scene. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

Thermal imaging is not an unconstitutional search. State v. Norris, 47 S.W.3d 457, 2000 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. 2000).

The standard set forth in California v. Hodari D. , 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690, 1991 U.S. LEXIS 2397 (1991), holding that a person is “seized” for purposes of U.S. Const. amend. 4 only where an officer uses physical force to detain a person or where a person submits or yields to a show of authority by the officer, is rejected under Tenn. Const. art. I, § 7; instead, a totality of the circumstances analysis and the standard of whether a reasonable person would have believed that the person was not free to leave is adhered to. State v. Randolph, 74 S.W.3d 330, 2002 Tenn. LEXIS 195 (Tenn. 2002).

Trial court erred in suppressing evidence found during a frisk of defendant; based on the officer's detection of the smell of marijuana in the residence and his actions in quickly placing an object in his pocket, the officer had reasonable suspicion that defendant possessed a weapon and thus was justified in frisking defendant for safety purposes. The officer legally seized the metal pipe found on defendant for these reasons and also based on the “plain feel” doctrine of U.S. Const. amend. IV and Tenn. Const. art. I, § 7. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Trial court erred in suppressing evidence during a search of defendant at the police station because the search was a valid inventory search under U.S. Const. amend. IV and Tenn. Const. art. I, § 7. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Application of the reasonable parole condition that defendant had to agree to a search without a warrant of her person, vehicle, property, or residence by an officer at any time became unreasonable as a result of the lengthy seizure of defendant; thus, her motion to suppress was properly granted. State v. Turner, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. Apr. 29, 2008), rev'd, 297 S.W.3d 155, 2009 Tenn. LEXIS 678 (Tenn. Oct. 15, 2009).

After defendant was lawfully arrested, the officer had a duty to tow defendant's car, which was illegally parked, and prior to the car being towed, the officer had a right to inventory the car; because these items were seized during a lawful inventory search, the trial court properly found that they were admissible. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Defendant abandoned papers when he tried to kick them under the car, and at that point, he no longer had a reasonable expectation of privacy in the papers, and because he had been legally seized at the time he abandoned his property, the officer could seize this evidence and the trial court properly denied defendant's motion to suppress. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

20. — Standing

Defendants did not have standing the challenge the search of the vehicle and the seizure of the items found inside where the vehicle they drove on the night of the jewelry store robbery was owned by one defendant's girlfriend and was found on the premises of an apartment complex where a relative of the girlfriend resided. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

Defendant did not have standing to challenge the search of his associate's cell phone and had no reasonable expectation of privacy in the corresponding data because he had no reasonable expectation of privacy in another person's cell phone data and records. State v. Hawthorne, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. Sept. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 145 (Tenn. Feb. 23, 2017).

Trial court properly denied defendant's motion to suppress weapons seized during an accident investigation, as defendant told the officer that the backpack in which the weapons were found did not belong to him and thus, he lacked standing to challenge the search. State v. Lagrone, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 751 (Tenn. Crim. App. Sept. 30, 2016).

21. —Stop and Frisk.

Defendant's conviction for misdemeanor possession of cocaine was inappropriate because the seizure became unconstitutional when it went beyond what was necessary for a Terry search; thus, the search leading to the discovery of the narcotics was unconstitutional. State v. Richards, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 111 (Tenn. Crim. App. Feb. 6, 2008), aff'd, 286 S.W.3d 873, 2009 Tenn. LEXIS 336 (Tenn. 2009).

Denial of a motion so suppress evidence obtained as a result of a search of a taped package found within defendant's vehicle during a traffic stop was affirmed because the scope of the detention following a traffic stop for speeding was not exceeded by a police officer, without reasonable suspicion or probable cause, in violation of defendant's rights under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV, and defendant consented to the search of his vehicle and such consent was knowing, intelligent, and voluntary under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV. State v. Brown, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Under the totality of the circumstances, the police had reasonable suspicion to detain defendant and a Terry search was proper under Tenn. Const. art. I, § 7, even though an anonymous tip directed the police officers to the area, as: (1) Officers responded to a 911 call of an armed subject at a motel known for criminal activity; (2) An officer was told that there was an armed robbery in progress; and (3) Defendant was identified as the armed individual. State v. Williamson, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. Aug. 19, 2011), rev'd, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Officer did not have reasonable suspicion to initiate the stop of defendant's vehicle for violating this section, and therefore the trial court erred by denying defendant's motion to suppress, because the officer conceded that he did not observe the light pole or any damage to it prior to stopping defendant. The sole basis for the stop, the noise the officer said he heard, was not enough to generate reasonable suspicion. State v. Yacks, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 13, 2015).

Trooper had reasonable suspicion that defendant had committed a crime when he asked her to step out of her car and perform field sobriety tests because the trooper was informed that defendant's vehicle was irregularly parked and she had moved around and fallen back in her car, and the trooper testified when he approached defendant she appeared to be intoxicated, he smelled alcohol on her person, her speech was slurred, and she admitted drinking. State v. Irwin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. Nov. 8, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 144 (Tenn. Feb. 23, 2017).

Subsequent traffic stop and search of defendant two's person was too attenuated from the search of her house, and because the stop and seizure was based completely on the evidence found during the search of the house, the evidence seized from her person was also properly suppressed. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

22. —Probable Cause.

Where highway patrol officers following a car with license plates from another state became suspicious as result of occupants of car staring at them and they decided to investigate, and to accomplish purpose stopped car and demanded to see license of driver and saw box of whisky in car, the evidence obtained by search and statements of parties following search was not admissible on trial for unlawful transportation of alcoholic beverages. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

Where officer stopped defendant's automobile to investigate conduct of occupants and subsequently determined from defendant's appearance and conduct that he was intoxicated and arrested him for driving while intoxicated, the arrest did not violate constitutional guarantee against unreasonable searches and seizures and evidence of defendant's physical appearance and conduct would be admissible even if arrest were illegal. Satterfield v. State, 196 Tenn. 573, 269 S.W.2d 607, 1954 Tenn. LEXIS 422 (1954).

Where officer picked up package of drugs which was thrown from automobile after it was stopped by officers such action did not involve a search or seizure or violate defendant's rights in this respect. Williams v. State, 506 S.W.2d 193, 1973 Tenn. Crim. App. LEXIS 234 (Tenn. Crim. App. 1973).

Where officers observed defendant run a red light, stopped him, and after questioning him at the scene arrested him for drunken driving, driving without a license and carrying a pistol, and a subsequent search of his car revealed marihuana which was introduced in evidence at his trial for possession of marihuana, there was no violation of his constitutional rights against unreasonable search and seizure. Hill v. State, 516 S.W.2d 361, 1974 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. 1974).

Where an officer by reason of training and experience detected the odor of marijuana coming from defendant's automobile, he had probable cause to believe the vehicle contained contraband marijuana. State v. Hughes, 544 S.W.2d 99, 1976 Tenn. LEXIS 513 (Tenn. 1976), rev'd, 588 S.W.2d 296, 1979 Tenn. LEXIS 519 (Tenn. 1979).

An officer of the law may search an automobile without a warrant if he has probable cause to believe that it contains contraband and if the circumstances existing are such that the vehicle will probably escape before a search warrant can be obtained. State v. Hughes, 544 S.W.2d 99, 1976 Tenn. LEXIS 513 (Tenn. 1976), rev'd, 588 S.W.2d 296, 1979 Tenn. LEXIS 519 (Tenn. 1979).

Where the officers were present in a helicopter at 1,800 feet above the terrain, within the navigable air space of the United States, a place they had a perfect legal right to be and from their vantage point they observed unharvested marijuana in the field, and as they approached, they saw defendants tending their crop, having observed a felony being committed in their presence, the officers clearly were justified in descending to the ground to arrest the defendants. State v. Layne, 623 S.W.2d 629, 1981 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1981), overruled, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984).

An officer may stop an individual to investigate a reliable report of a misdemeanor. State v. Blankenship, 757 S.W.2d 354, 1988 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1988).

A police officer may make an investigatory stop based upon information contained in a police radio broadcast, bulletin or flyer issued by another law enforcement agency; however, the prosecution has the burden of establishing by a preponderance of the evidence that the police officer or agency responsible for the broadcast, bulletin or flyer had a reasonable suspicion, supported by specific and articulable facts, that a criminal offense had been, or was about to be, committed before the acts of the officer relying upon the information can be considered to be legal. State v. Moore, 775 S.W.2d 372, 1989 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. 1989).

State v. Jacumin, 778 S.W.2d 430, 1989 Tenn. LEXIS 455 (Tenn. 1989), which rejected the “totality of the circumstances” test for probable cause, and held that the proper standard by which probable cause will be measured under Tennessee law is the two-pronged “reliability-basis of knowledge” test, announced a new constitutional rule for analyzing probable cause; however, this new rule should not be applied retroactively because it does not materially enhance the integrity and reliability of the fact-finding process at trial. Meadows v. State, 849 S.W.2d 748, 1993 Tenn. LEXIS 49 (Tenn. 1993), rehearing denied, 849 S.W.2d 748, 1993 Tenn. LEXIS 134 (Tenn. 1993).

Affidavits concerning defendant's prior arrests for robbery and stolen property found in his automobile taken as a whole, reasonably indicated that other evidence of the robberies mentioned in the affidavit might still be present at his residence, and were sufficient to establish probable cause to search the residence. State v. Meeks, 876 S.W.2d 121, 1993 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. 1993).

Where an officer saw defendant riding a bicycle in the officer's direction approximately four blocks away from a reported burglary in process and, based merely on a hunch, the officer decided to stop the defendant, defendant was seized when the officer activated the blue lights on patrol car, ordered defendant to stop, and pursued the defendant for several blocks; because the officer lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from defendant was properly suppressed by the trial court. State v. Randolph, 74 S.W.3d 330, 2002 Tenn. LEXIS 195 (Tenn. 2002).

Deputies' warrantless entry into defendants' residence was unlawful because the deputies created the exigent circumstances by approaching the residence and alerting defendants to their presence. However, the unlawful entry and detention did not taint the evidence seized pursuant to the subsequent search warrant, because one deputy's observations as he approached defendants' residence and stood at the front door (the smell of anhydrous ammonia associated with the manufacture of methamphetamine and the sound of persons running), were not unlawful with respect to an expectation of privacy; further, the affidavit supporting the issuance of the warrant was supported by probable cause because the confidential informant's hearsay information (that defendants were manufacturing methamphetamine), was corroborated by the independent observations of the deputies. State v. Carter, 160 S.W.3d 526, 2005 Tenn. LEXIS 224 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 365 (Tenn. Apr. 18, 2005), cert. denied, Carter v. Tennessee , 547 U.S. 1081, 126 S. Ct. 1797, 164 L. Ed. 2d 536, 2006 U.S. LEXIS 3098 (2006).

Probable cause determination of a neutral and detached magistrate was entitled to great deference by a reviewing court, and applying that standard of review, the facts contained in the application for the search warrant established a substantial basis on which the magistrate could have concluded that evidence of defendant's drug trafficking would be found inside his residence. Therefore, the search warrant for defendant's residence was supported by probable cause and the trial court's suppression of the evidence obtained during that search was reversed. State v. Saine, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Trial court did not err in denying defendant's motion to suppress as the officer had probable cause to initiate a traffic stop of defendant because the officer witnessed defendant driving on a road without headlights at approximately 3:00 a.m., in violation of the traffic laws. State v. Sowell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. Sept. 21, 2016).

Police officer had reasonable suspicion to seize defendant because, based upon the officer's observations, the officer had reasonable suspicion that defendant was urinating in public and thus committing the offense of public indecency. The officer observed defendant in an empty parking lot of a public business, standing next to a vehicle and facing away from the street, holding defendant's hands in front of defendant's groin area with shoulders bent over, and saw fluid flowing from the location where defendant had been standing. State v. Fuqua, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 181 (Tenn. Crim. App. Mar. 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 454 (Tenn. July 25, 2017).

Trial court did not err by denying defendant's motion to suppress because the officer did not seize defendant by activating the patrol car's lights when he saw defendant walking by the side of the road as the officer did so for safety reasons, having come upon two stopped vehicles with flashing hazard lights and a person on foot on a four-lane highway. During his encounter with defendant the officer smelled alcohol giving him reasonable suspicion that defendant had driven under the influence, and during the subsequent detention, defendant offered inconsistent versions of the evening's events and performed poorly of field sobriety tests, giving the officer probable cause to arrest defendant for DUI. State v. Cooke, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 61 (Tenn. Crim. App. Jan. 31, 2019).

23. — —Informants.

There is no unreasonable search and seizure where officers, upon information that defendant was unlawfully selling liquor at his place of business, procured search warrant and seized bottles of whisky that defendant attempted to make way with at the latter's place of business. Baker v. State, 147 Tenn. 421, 248 S.W. 548, 1922 Tenn. LEXIS 55 (1923).

Informant told police exactly how much marihuana would be in defendant's car and where it would be located. Shortly after that police saw defendant's car weaving all over the road. Their search of the car was legal, as they had reasonable cause to believe the car contained objects subject to seizure and the car could easily have been moved out of their jurisdiction. Whether or not defendant was committing a felony was immaterial. State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 650 (Tenn. 1975).

Where vice squad officers received information from reliable informant at 5:15 p.m. that defendant would leave his home between 5:30 p.m. and 7:30 p.m. to make delivery of cocaine, officers acted properly in searching defendant and his car when he left his home and stopped his car and got out in the vicinity where the delivery was to be made, without first obtaining a search warrant. State v. Shaw, 603 S.W.2d 741, 1980 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. 1980).

Because citizen/bystander witness was not a criminal informant, information provided by the witness was presumed to be reliable, and the prosecution did not have to establish either the credibility of the informant or the reliability of his information to show probable cause for the issuance of a search warrant. State v. Cauley, 863 S.W.2d 411, 1993 Tenn. LEXIS 354 (Tenn. 1993).

Reasonable suspicion and probable cause existed for the traffic stop of defendant's car because, at the time a deputy activated the blue lights on the deputy's police car, a confidential informant had provided information that a car matching the description of the car defendant was driving and driven by an African-American man was expected to drive to a particular house at a particular time, and that the driver would have at least one-half pound of marijuana to sell the informant. State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017).

24. —Aerial Overflights.

Aerial overflights did not constitute a search within the meaning of the U.S. Const. amend. 4, or Tenn. Const. art. I, § 7. State v. Roode, 643 S.W.2d 651, 1982 Tenn. LEXIS 441 (Tenn. 1982).

25. —Automobiles.

A state officer cannot intercept, search, and arrest persons upon the highway except in the manner prescribed by Tenn. Const. art. I, § 7 and the statutory provisions; therefore he has no power to search vehicles upon probable cause for believing they bear contraband. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

Warrantless search of a vehicle parked in a public place, after a recent crime, providing probable cause to believe the vehicle contains contraband, without any actual likelihood that the risk of delay to obtain a warrant is high, is legal. State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

Where, in connection with a search of the premises described in the warrant, an automobile parked near the building and on the premises described is searched and liquor seized, it is not an unreasonable search and seizure which Tenn. Const. art. I, § 7 provides against. Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716, 1940 Tenn. LEXIS 86 (Tenn. Sep. 1940).

Where, in stopping defendant's car and asking for his driver's license, highway patrolmen were primarily actuated by a desire to see if they could detect any evidence of intoxicating liquor being transported, and they had no concern whatever about his driver's license, the effect of defendant's apprehension was to require him to give evidence against himself, and therefore violated his constitutional rights. Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 1944 Tenn. LEXIS 378, 154 A.L.R. 809 (1944).

Unlawful seizure of defendant's automobile does not prevent its forfeiture for violation of the drug control laws nor affect the jurisdiction of the court to decree the forfeiture. Fuqua v. Armour, 543 S.W.2d 64, 1976 Tenn. LEXIS 476 (Tenn. 1976).

Although state courts interpreting state constitutional provisions may take a more protective view of the rights to be afforded a criminal defendant than federal constitutional standards mandate, in the area of automobile searches the Tennessee courts have relied on existing federal constitutional interpretation. Mathis v. State, 566 S.W.2d 285, 1977 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. 1977).

When probable cause exists, an automobile may be searched or seized without a warrant when it is halted while moving along the public street or highway, because of the impracticability of obtaining a warrant before the vehicle may be moved out of the jurisdiction. Fuqua v. Armour, 543 S.W.2d 64, 1976 Tenn. LEXIS 476 (Tenn. 1976).

Where officers had a period of 21 days within which to obtain a warrant, the warrantless seizure of defendant's parked automobile was unconstitutional, as extraordinary circumstances were not present. Fuqua v. Armour, 543 S.W.2d 64, 1976 Tenn. LEXIS 476 (Tenn. 1976).

If the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979).

A search of an automobile pursuant to police impoundment was an unreasonable search when the defendant was arrested for driving while intoxicated and was sufficiently competent to authorize a companion to take custody of the automobile as an alternative to police impoundment. Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979).

Just cause to arrest the driver is not enough alone; there must also be reasonable cause to take his vehicle into custody. Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979).

Where defendant was arrested for being drunk and disorderly, and police were asked by assistant motel manager to look in another room not registered to defendant, but for which he had earlier requested the key, and in such room they found defendant's billfold, a set of keys to defendant's automobile and a television set presumed to be stolen, a search without a warrant of the automobile which was in the parking lot was unconstitutional. Nolan v. State, 588 S.W.2d 777, 1979 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1979), overruled, State v. Ronewicz, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1085 (Tenn. Crim. App. Dec. 26, 2012).

Where defendant and companion stopped at combination grocery store and restaurant and companion went into store while defendant drove off, and after eating, companion wandered around store and proprietor became suspicious and called police, and police officer asked such companion to step outside and into his patrol car, and later when defendant returned in his car officer asked that he roll down his window and show him his driver's license and when defendant rolled down his car window the officer smelled marijuana, searched the car and found marijuana, both the detention of defendant's companion and the request that defendant roll down the car window amounted to a violation of Tenn. Const. art. I, § 7 which invalidated the search and seizure. Hughes v. State, 588 S.W.2d 296, 1979 Tenn. LEXIS 519 (Tenn. 1979).

Where state is offering evidence disclosed by arresting officer's “inventory search” of vehicle and admissibility of evidence depends upon the legality of the impoundment, the burden is upon the state to justify the impoundment by demonstrating compliance with the rule of reasonable necessity set out in Drinkard v. State, 584 S.W.2d 650, 1979 Tenn. LEXIS 463 (Tenn. 1979), and other case law. State v. Lunsford, 655 S.W.2d 921, 1983 Tenn. LEXIS 785 (Tenn. 1983).

Merely stopping a vehicle on reasonable suspicion to investigate a crime does not necessarily constitute an arrest. State v. Blankenship, 757 S.W.2d 354, 1988 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. 1988).

Warrantless search of a vehicle parked in a public place, after a recent crime, providing probable cause to believe the vehicle contains contraband, without any actual likelihood that the risk of delay to obtain a warrant is high, is legal. State v. Leveye, 796 S.W.2d 948, 1990 Tenn. LEXIS 325 (Tenn. 1990).

Where an officer stopped a vehicle for speeding and, while removing an open can of beer therefrom, noticed a bag containing marijuana, the plain view doctrine applied to such discovery and the officer had probable cause to search the vehicle. State v. Dougherty, 930 S.W.2d 85, 1996 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 1996).

A sobriety roadblock which is established and operated in accordance with predetermined guidelines and supervisory authority that minimize the risk of arbitrary intrusions on individuals and limit the discretion of law enforcement officers at the scene is valid under the Tennessee constitution. State v. Downey, 945 S.W.2d 102, 1997 Tenn. LEXIS 257, 74 A.L.R.5th 729 (Tenn. 1997).

The fact that the police officers who stopped the defendant may have had a subjective belief that she had contraband in her possession did not render the stop pretextual and require suppression of the contraband where the police had observed the defendant fail to stop for two stop signs and, therefore, had probable cause to stop her. State v. Baker, 966 S.W.2d 429, 1997 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 1997).

While detention for sobriety test at traffic checkpoint may have been warranted, police officer had no articulate basis to frisk the defendant for weapons, and thus the marijuana seized from defendant's pocket should have been suppressed. State v. Winn, 974 S.W.2d 700, 1998 Tenn. Crim. App. LEXIS 236 (Tenn. Crim. App. 1998).

Where defendant moved laterally at times within his lane, but the movement was not pronounced, police officer did not have reasonable suspicion to stop defendant for driving while under the influence of an intoxicant. State v. Binette, 33 S.W.3d 215, 2000 Tenn. LEXIS 605 (Tenn. 2000).

The facts of the case supported the application of the “automobile exception” to the warrant requirement. State v. McCrary, 45 S.W.3d 36, 2000 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 2000).

When a police officer issues a traffic citation or warning and returns a driver's license and registration, a traffic stop ceases to be a seizure for purposes of Tenn. Const. art. I, § 7 and U.S. Const. amend. IV. State v. McCrary, 45 S.W.3d 36, 2000 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 2000).

Trial court erred by denying defendant's motion to suppress evidence gathered at a drivers' license checkpoint where it constituted an unreasonable seizure because the state failed to prove a compelling state interest for roadblock, and it was constitutionally unreasonable given the lack of advance public notice, the failure to have signs or traffic cones, and the testimony suggesting the roadblock was a subterfuge for unlawful detentions. State v. Levitt, 73 S.W.3d 159, 2001 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. 2001).

In a DUI case, a court erred by denying defendant's motion to suppress, because a roadblock set up to detect DUI, aggressive driving, and speeding did not pass constitutional muster, where a roadblock is a singularly ineffective means by which to detect aggressive drivers and speeders; unlike driving while intoxicated, a bodily condition that the driver was helpless to change by a sheer act of will, a speeding or aggressive driver could cease the unlawful behavior within seconds of being notified of the danger of apprehension. Additionally, the decisions about establishing the roadblock were made by the same men who were actually conducting it at the scene. State v. Varner, 160 S.W.3d 535, 2004 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. 2004).

In a minor in possession of alcohol case, a court erred by granting defendant's motion to suppress: (1) The housing authority checkpoint where he was stopped was constitutional, as the housing authority's mission was to provide safe housing for its residents; (2) The purpose of the entry checkpoints was to provide a measure of security for those who lived within the development; (3) The identification checkpoint was an efficient means of determining that persons entering the housing development were residents or visitors with a legitimate business or social reason for being there; and (4) The intended level of intrusion to motorists or pedestrians was minimal. State v. Hayes, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 997 (Tenn. Crim. App. Nov. 9, 2004), rev'd, 188 S.W.3d 505, 2006 Tenn. LEXIS 312 (Tenn. Apr. 20, 2006).

Defendant's detention constituted de facto arrest where record was devoid of any evidence of reasonable suspicion of criminal activity and no Miranda warnings were provided to defendant, consent immediately followed the illegal seizure, and no intervening event occurred; thus, search of defendant's vehicle and seizure of cocaine found in the vehicle was unreasonable under constitutional protections. State v. Hayes, 190 S.W.3d 665, 2005 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. 2005).

When a police officer activated the blue lights on his patrol car behind the defendant's vehicle which was already stopped and idling in the street, a seizure occurred within the meaning of U.S. Const. amend. 4 and Tenn. Const. art. I, § 7; the officer did not have reasonable suspicion to seize the defendant, and therefore, all of the evidence obtained from the stop was suppressed. State v. Williams, 185 S.W.3d 311, 2006 Tenn. LEXIS 181 (Tenn. 2006).

On appeal of the trial court's decision granting defendant's motion to suppress 300 grams of cocaine that an officer found in his vehicle following a traffic stop, the court held that even though the initial stop of defendant's vehicle was constitutionally permissible, as he was speeding, the officer's frisking defendant and placing him in the patrol car was not, and therefore the motion was properly granted: the officer had no suspicion that defendant was armed or dangerous, and he did not check the validity of defendant's driver's license or vehicle registration before frisking him or placing him in the patrol car; the record established that the officer placed defendant in the patrol car primarily to determine whether he became more nervous, and the officer's record showed that he conducted “frisks and sits” in other instances regardless of the weather or the time of day, and thus defendant's consent to the search of his vehicle was not sufficiently attenuated from the violation of his constitutional rights. State v. Berrios, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

Law enforcement officer signaled by anonymous citizen-driver in a manner obviously intended to invite the officer's intervention as to a third party, but without any indication as to the nature of the citizen's concern or any other information, does not have reasonable suspicion adequate to stop and seize the third party. State v. Day, 263 S.W.3d 891, 2008 Tenn. LEXIS 615 (Tenn. Sept. 22, 2008).

Officer did not have reasonable suspicion to stop defendant's vehicle under the fourth amendment and Tenn. Const. art. I, § 7 because it was not reasonable for the officer to infer from unknown motorist's tip that defendant had engaged in criminal behavior; officer relied solely on unknown tip and observed no criminal activity by defendant before stopping him, and motorist's actions did not communicate any specific information and could have been just as indicative of noncriminal behavior as criminal behavior. State v. Day, 263 S.W.3d 891, 2008 Tenn. LEXIS 615 (Tenn. Sept. 22, 2008).

Although defendant's vehicle was subject to a search following a proper canine sweep, the contraband found on defendant's person should have been suppressed under the fourth amendment because defendant, who was the driver, left the vehicle before the police acquired any indication that the vehicle contained contraband, and the dog did not react to any substances on defendant's person; in addition, a passenger in the vehicle occupied the seat near the door where the dog reacted. State v. Harris, 280 S.W.3d 832, 2008 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 6, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 629 (Tenn. Aug. 25, 2008).

Warrantless search of defendant's car was justified by exigent circumstances; although defendant argued that the police created the exigent circumstances by setting up a controlled sale of drugs and that the subsequent search of his car was unconstitutional, defendant, activated by his own decision, left his residence in his car to drive to a prearranged meeting place in order to sell drugs to a confidential informant. State v. Saine, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 4, 2008), aff'd in part, rev'd in part, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Evidence supporting charges of which defendant was found guilty was gathered not as a result of an allegedly invalid stop of his vehicle, but as a result of defendant's intervening, illegal conduct, which superceded the initial stop and gave the police an independent and constitutionally sound basis for arresting defendant; accordingly, trial court properly denied defendant's motion to suppress. State v. Nelson, 275 S.W.3d 851, 2008 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 24, 2008).

Officers were aware of the search warrant for defendant's residence and the controlled buy that was set to occur shortly after defendant left his residence, and those facts were sufficient to provide the officers with probable cause to believe that defendant was driving to the controlled buy with narcotics in his vehicle; moreover, suppression of the evidence was not required because the officer stopped defendant for speeding as a pretext to afford an opportunity to search defendant's vehicle for narcotics since when a law enforcement officer had probable cause to believe that a traffic violation occurred, the stop of the vehicle was considered constitutionally reasonable irrespective of the subjective motivations of the officer making the stop. Therefore, the search of defendant's vehicle was justified by the automobile exception to the warrant requirement. State v. Saine, 297 S.W.3d 199, 2009 Tenn. LEXIS 708 (Tenn. Nov. 4, 2009).

Officer had reasonable and articulable suspicion to believe that defendant had committed a criminal offense which permitted the officer to conduct an investigatory stop where the victim gave him a description and the license plate of the car involved in the shooting, the officer saw a car matching the description, and the license plate matched except for one number. State v. Volpe, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Sept. 3, 2015).

Petitioner failed to show that trial counsel and co-counsel were deficient when they failed to file a motion to suppress evidence found during an inventory search of petitioner's vehicle; petitioner needed other witnesses, such as a police detective and a police captain, to establish the factual circumstances of petitioner's arrest and the inventory search of his vehicle, and without such evidence, petitioner could not establish that a motion to suppress would have been successful. Fisher v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 2, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 156 (Tenn. Feb. 18, 2016).

In a case where defendant was convicted of four counts of rape of a child, defendant's motion to suppress evidence recovered from a warrantless search of his car under the automobile exception was properly denied because defendant's argument that his car was not readily mobile within the meaning of the automobile exception was without merit as it was the characteristic mobility of all automobiles, not the relative mobility of a car in a given case, which allowed for warrantless searches when probable cause existed; and probable cause existed justifying the warrantless search of defendant's car for a laptop, which a detective believed contained child pornography and possibly evidence of defendant's sexual abuse of local victims. State v. Alberts, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 485 (Tenn. June 23, 2016).

Incriminating nature of the comic books was immediately apparent, and the detective's observation of the comic books in plain view gave him probable cause to believe that defendant's vehicle contained stolen property, and thus, the seizure of the vehicle pursuant to the automobile exception was justified. State v. Carter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Mar. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 478 (Tenn. June 23, 2016).

Deputy's detention of defendant did not exceed the scope of the stop where the deputy questioned defendant for two and a half minutes before he admitted to having marijuana in his vehicle and the duration of the stop was slightly over 12 minutes prior to the discovery of additional contraband in the trunk of the vehicle. State v. Mansfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. June 22, 2016).

Officer had reasonable suspicion to stop defendant's vehicle where the deputy testified that defendant simultaneously activated his turn signal and merged into the right lane without checking if the right lane of traffic was clear in violation of T.C.A. § 55-8-143(a), (c), causing the deputy to push his brakes to avoid coming too close to defendant's vehicle. State v. Mansfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. June 22, 2016).

Trooper had reasonable suspicion that defendant had violated T.C.A. § 55-8-123(1) and therefore the trial court did not err by denying his motion to suppress where the video confirmed the trooper's testimony that defendant's right tires crossed the lane divider and the fog line, and his travel within his own lane included multiple drifts toward either side followed by a jerky or quick movement for correction. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 547 (Tenn. Crim. App. July 26, 2016).

Warrantless search of the victim's vehicle was proper because the officers had probable cause to believe that evidence related to the victim's attack would be found in the vehicle, as a detective testified he observed a significant amount of blood at the crime scene, the victim's car was missing, defendant had been involved in an accident that morning in a vehicle that was the same make and model as the victim's, and upon entering defendant's jail cell the first thing the officer's noticed was blood on the bottom of his sock. State v. Peden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 699 (Tenn. Crim. App. Sept. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 976 (Tenn. Dec. 14, 2016).

Trial court did not err in denying defendant's motion to suppress as there was probable cause to search defendant's vehicle because defendant referenced a condom and sexual items in a text message to the minor victim; there was a reasonable probability that the vehicle contained additional condoms, the referenced sexual items, or other evidence of criminal activity with regards to the solicitation of a minor charge which would have been relevant to the prosecution; and law enforcement could have relied on defendant's inexplicable evasiveness regarding the location of his vehicle as one factor in the totality of the circumstances when determining that there was probable cause for the search of defendant's vehicle. State v. Thornton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 10, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 245 (Tenn. Apr. 13, 2017).

Officer had reasonable suspicion to stop defendant's vehicle for speeding because a detective had told the officer that defendant was speeding. State v. Kelley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Aug. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 866 (Tenn. Dec. 6, 2017).

Officer had reasonable suspicion to stop defendant's vehicle because a detective had reasonable suspicion that defendant possessed marijuana and then directed the officer to act by stopping defendant, as a reliable informant told a detective that defendant used his home as a “stash house” for marijuana trafficking and the detective used a GPS device to track defendant leaving his home. State v. Kelley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Aug. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 866 (Tenn. Dec. 6, 2017).

Trial court erred by refusing to suppress the evidence obtained from the warrantless search of defendant's vehicle because the police officers – acting on an anonymous tip that defendant was selling drugs from a parked car outside of a particular store – did not have reasonable suspicion to support their brief, investigatory stop and defendant's resulting illegal seizure before a dog search of the vehicle. State v. Dibrell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 224 (Tenn. Crim. App. Mar. 26, 2018).

Trial court did not err by denying defendant's motion to suppress items found during a search of her vehicle because deputies had probable cause to stop her for violating the speed limit, and upon smelling marijuana in the vehicle, the deputies had probable cause to search it pursuant to the exigent circumstances relating to the inherent mobility of automobiles. State v. Long, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. Oct. 3, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 611 (Tenn. Sept. 17, 2018).

Officer had reasonable suspicion to stop defendant for a violation of T.C.A. § 55-8-149(d), after observing defendant's vehicle fail to obey a stop sign at an intersection, and thus, the evidence obtained as a result of the stop was admissible. State v. Harris, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 535 (Tenn. Crim. App. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to file a motion to suppress the temperature study done on defendant's car as the victims died of hyperthermia in the car; officers could seize a vehicle that was the instrumentality of the crime; a subsequent inspection of the vehicle was not an unlawful search; and officers routinely and properly conducted testing of items taken into evidence. Bates v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 16, 2019).

Officer did not have reasonable suspicion to stop defendant's vehicle, and therefore the trial court erred by denying defendant's motion to suppress, because defendant was seized when the officer activated his patrol car's blue lights, and at that time the officer had not witnessed any evidence of criminal activity, but rather stopped defendant because he pulled in front of and stopped at a known crack house. State v. Hogan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 98 (Tenn. Crim. App. Feb. 19, 2019).

Evidence did not preponderate against the trial court's findings that defendant knowingly and voluntarily consented to the search of his truck. Accordingly, the trial court did not err in denying defendant's motion to suppress. State v. Hunley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 26, 2019).

Defendant was not entitled to suppress evidence found in a search of defendant's car when it was parked for a fee in the overnight camping area of a music festival because while defendant had a reasonable expectation of privacy in defendant's sleeping tent, the reasonableness of the privacy expectation did not encompass the whole campsite. Additionally, the search of the car fell with the automobile exception to the warrant requirement and there was probable cause given a police dog's alert to believe that contraband was located inside the car. State v. Wiley, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 21, 2020).

Trial court did not err by denying defendant's motion to suppress because the officer was permitted to ask the vehicle's passengers for identification, given that one passenger was moving around in the backseat, they acted nervously, and all of the occupants were breathing heavily. The officer was permitted to ask one passenger to step out of the vehicle because he had received inconsistent answers about their destination. State v. Austin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Oct. 27, 2020).

25.5 — —Dog sniff.

Trial court erred in denying defendant's motion to suppress the evidence obtained during the search of defendant's car, because the K-9 handler could not testify that the dog gave his final response of barking, biting or scratching, but only that the dog's body language changed in a way that was consistent with changes he had observed during training. State v. Bowden, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 10, 2018).

Trial court did not err by denying defendant's motion to suppress because the officer had reasonable suspicion that defendant violated T.C.A. § 55-8-123(1), as the dash camera video showed that defendant crossed the center line dividing the highway and straddled the center line for approximately six seconds, and that defendant touched the fog line prior to crossing the center line. The officer also had reasonable suspicion that defendant violated T.C.A. § 55-8-143 because he did not initially use his left turn signal before moving into the second southbound lane and therefore the officer was justified in stopping defendant to investigate the reason for his lane departure. State v. Thomas, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 592 (Tenn. Crim. App. Aug. 8, 2018).

Dog sniff did not prolong the deputy's traffic stop of defendant, and therefore the trial court should have denied defendant's motion to suppress on that basis, because the deputy, who had been writing the warning citation for only three minutes when he interrupted his writing to get the dog out of his patrol car, would have been unable to complete the citation during the subsequent two-minute dog sniff, and would not have been able to complete the stop before the dog altered to the marijuana in the car. State v. Eliazar, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. Aug. 29, 2018).

Trial court did not err by denying defendant's motion to suppress because the initial stop of defendant's vehicle for a traffic violation was justified, the officer found that defendant did not have a valid driver's license, the officers' asking defendant to step out of the vehicle and frisking defendant was not unreasonable, the amount of time that elapsed from the initial stop to a police drug dog's alert on defendant's car was not unreasonable, and the search of defendant's person when nothing was found in the car was not unreasonable. State v. Carero, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. Feb. 3, 2020).

26. —Consent.

Defendant validly consented the taking of his blood and subsequent DNA testing while incarcerated because: (1) Defendant was verbally informed that he could refuse to consent to the blood draw; (2) Defendant was provided with a written form on which he could indicate his consent or refusal to consent; and (3) Defendant admitted that he was aware that T.C.A. § 40-35-321 did not apply to him as he had not been convicted of any of the predicate offenses. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

In a drug case, a court properly suppressed evidence where, although defendant's consent to search was given voluntarily, the consent was not sufficiently attenuated from the unlawful detention. Although there was no reasonable suspicion that defendant was carrying on any criminal activity other than the speeding offense, the deputy confined defendant in the back of the patrol car, kept defendant's license, and subjected him to several minutes of “fishing-expedition” type questions before seeking consent to search; in addition, the deputy never issued defendant either a warning or citation ticket for speeding. State v. Berrios, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 3, 2006), aff'd, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

Defendant's consent to search extended to the inside of the vehicle and containers located therein because the trooper testified that he was trained in drug interdiction, and during the consensual search, the trooper discovered the package in the front passenger floorboard of the vehicle; the trooper testified that simply by feeling the package the contents of the package were inherently recognizable as a brick of cocaine. State v. Brown, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Mar. 31, 2008), aff'd, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Defendant gave consent to a search because defendant responded “okay” to the trooper's request to search; although the exact language used was difficult to discern, it was clear from the inflection of defendant's voice that he gave assent. State v. Brown, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Mar. 31, 2008), aff'd, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Denial of a motion so suppress evidence obtained as a result of a search of a taped package found within defendant's vehicle during a traffic stop was affirmed because the scope of the detention following a traffic stop for speeding was not exceeded by a police officer, without reasonable suspicion or probable cause, in violation of defendant's rights under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV, and defendant consented to the search of his vehicle and such consent was knowing, intelligent, and voluntary under Tenn. Const. art. I, § 7 and U.S. Const. amend. IV. State v. Brown, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Trial court did not err by denying defendant's motion to suppress drug evidence found in vehicle following a traffic stop because officer testified that defendant consented to having his vehicle searched and trial court found officer to be a reliable witness; evidence showed that defendant was cooperative from the start of the traffic stop and that he gave his consent without hesitation. State v. Davis, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 23, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 407 (Tenn. June 15, 2009), cert. denied, Davis v. Tennessee, 558 U.S. 961, 130 S. Ct. 432, 175 L. Ed. 2d 296, 2009 U.S. LEXIS 7179 (U.S. 2009).

Traffic stop of defendant's vehicle was not longer than necessary because officer asked only once to search the vehicle as he was writing the citation and defendant immediately responded in the affirmative. State v. Davis, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 23, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 407 (Tenn. June 15, 2009), cert. denied, Davis v. Tennessee, 558 U.S. 961, 130 S. Ct. 432, 175 L. Ed. 2d 296, 2009 U.S. LEXIS 7179 (U.S. 2009).

Defendant's convictions for possession with intent to sell or deliver over 0.5 grams of cocaine and simple possession of dihydrocodeinone were appropriate because the jury could have reasonably inferred that defendant had dominion and control over the items in his residence and that he was in constructive possession of the items. Defendant was the only one who lived at the residence, he had left shortly before the search after having been inside the home for several hours, and defendant was a parolee who had consented to warrantless searches as a condition of parole. State v. Johnson, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 18, 2010), dismissed, Johnson v. Lester, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 11627 (M.D. Tenn. Jan. 30, 2014), writ denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Nov. 4, 2014).

Defendant's convictions for possession of marijuana and possession of unlawful drug paraphernalia were appropriate because the warrantless search of his residence was proper since he consented to the search and the consent was not the product of the previous illegal search of his person. State v. Ingram, 331 S.W.3d 746, 2011 Tenn. LEXIS 4 (Tenn. Jan. 21, 2011).

Search of a vehicle following a lawful stop was valid, even if there had been some question about the validity of defendant's consent, because there was no relevant evidence put forth by defendant which overcame the evidence demonstrated by the state that the vehicle's passenger and registered owner gave valid oral and written consent to search the vehicle. State v. Martinez, 372 S.W.3d 598, 2011 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Oct. 27, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 188 (Tenn. Mar. 9, 2012).

Defendant did not actually consent to a blood draw because (1) defendant was injured, had impaired hearing, had limited interaction with an arresting officer, and was medicated for injuries, and (2) nothing showed defendant adequately understood a request for consent. State v. Reynolds, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Nov. 12, 2014), aff'd, 504 S.W.3d 283, 2016 Tenn. LEXIS 821 (Tenn. Nov. 3, 2016).

It was error to find the results of tests of defendant's blood draw were inadmissible because (1) defendant impliedly consented to a blood draw, since an officer had probable cause to believe defendant drove under the influence, as the officer knew defendant drove a car involved in an accident, had an odor of alcohol, admitted drinking, and performed poorly on a horizontal gaze nystagmus test, and (2) defendant did not refuse the draw. State v. Reynolds, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Nov. 12, 2014), aff'd, 504 S.W.3d 283, 2016 Tenn. LEXIS 821 (Tenn. Nov. 3, 2016).

Evidence did not preponderate against the trial court's finding that defendant voluntarily consented to a blood draw. The record did not establish that defendant's consent was rendered involuntary by the threat of a mandatory blood draw. State v. Mitchell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. May 22, 2015).

Trial court erred by granting defendant's motion to suppress because his consent to the mandatory blood draw was voluntary where the officer testified that he informed defendant that he was subject to the mandatory blood draw because of his prior DUI conviction, that he read defendant the implied consent form, and that defendant consented and cooperated with the blood draw, and defendant agreed that submitted to the blood draw without protest. The fact that defendant believed that he had no choice but to submit to the testing did not render his consent involuntary. State v. Smith, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1007 (Tenn. Crim. App. Dec. 15, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 890 (Tenn. Nov. 22, 2016).

Evidence obtained following a traffic stop of the vehicle in which defendant was a passenger was admissible because the totality of the circumstances supported a finding that defendant's consent to search was voluntarily and intelligently given as the entire detention lasted only twenty minutes by the officer's estimation, defendant was asked only once, and there was no evidence of badgering or harassment by the officer. State v. Bryant, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 5, 2016).

Trial court properly granted defendant's motion to suppress evidence obtained during a warrantless blood draw because defendant did not freely and voluntarily consent to the blood draw, and the totality of the circumstances did not show that exigent circumstances created an exception to the warrant requirement; the implied consent law does not, by itself, operate as an exception to the warrant requirement. State v. Carter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. May 20, 2016).

Trial court properly denied defendant's motion to suppress, because codefendant, defendant's wife, freely consented to the search of her purse and her vehicle. State v. Wells, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 540 (Tenn. Crim. App. July 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 861 (Tenn. Nov. 17, 2016).

Trial court properly denied defendant's motion to suppress the cell phone seized from the vehicle he was driving during a traffic stop, as the vehicle's owner gave consent for the search and defendant gave an investigator consent to search the cell phone. State v. Lagrone, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 751 (Tenn. Crim. App. Sept. 30, 2016).

Trial court did not violate defendant's rights under the Fourth Amendment or Tenn. Const. art. I, § 7, by denying his motion to suppress, as defendant's initial interaction with the deputies was consensual, he voluntarily consented to the search of his person and vehicle, and he was not seized until a deputy found him in possession of drug paraphernalia. State v. Bargery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Oct. 6, 2017).

Evidence did not preponderate against the trial court's finding that defendant had the capacity to and did consent to the blood draw; while he hit his head and was bleeding from his eye and mouth areas, the emergency medical technician and officer at the scene testified that defendant was alert, knew what happened and where he was located, was able to describe his activities before the accident, and even asked about his dog that was with him at the time of the accident. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 420 (Tenn. July 18, 2018).

Defendant's motion to suppress was properly denied as he consented to a search of his home because a detective testified that only one police car was parked in defendant's driveway and that the police dog was in the car while a police officer and the probation officer spoke with defendant; the probation officer testified that, when the police officers approached defendant's home, none of the officers had their weapons drawn and that the blue lights were not activated on their police cars; the probation officer said that defendant consented to the search; and the detective testified that defendant did not withdraw his consent to the search. State v. Washington, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 713 (Tenn. Crim. App. Sept. 21, 2018).

Defendant's motion to suppress the evidence obtained from a warrantless search of his motel room was properly denied because defendant consented to the search of his motel room, and defendant did not revoke his consent. State v. Savage, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Sept. 19, 2019).

Officer's search of defendant was not unconstitutional because the officer was permitted to ask defendant, a passenger, to step out of the vehicle following a traffic stop, the officer testified that as defendant got out of the vehicle he asked defendant if he could search defendant, defendant responded yes, during the patdown search of defendant the officer felt what he thought was a glass crack cocaine pipe, when the officer defendant what it was, defendant stated it was a glass crack cocaine pipe, and the officer arrested defendant. State v. Joyner, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 24, 2020).

27. —Blood Samples.

Requirement that defendant submit to a blood test rather than a breath test did not constitute unreasonable search and seizure. State v. Greene, 929 S.W.2d 376, 1995 Tenn. Crim. App. LEXIS 815 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 233 (Tenn. Apr. 1, 1996).

In light of the substantial interests of the state, the diminished privacy interests of convicted felons, and the minimal intrusion caused by the taking of blood samples, the collection and maintenance of DNA samples pursuant to Tennessee's DNA statute, T.C.A. § 40-35-321, was reasonable; the statute was constitutional as once a person was convicted of a crime, his or her identity had become a matter of state interest and he or she had lost any legitimate expectation of privacy in the identifying information derived from body sampling. State v. Transou, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. May 13, 2005), aff'd, State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Evidence did not preponderate against the trial court's determination that defendant's 1999 and 2002 consents to blood samples were valid; defendant consented to provide a blood sample in 1999 after being advised of the procedure and his right to consent or refuse, and defendant's two signatures reflected that he consented to the blood collection and that he had read the entire form and understood its contents. State v. Transou, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. June 30, 2005), aff'd, State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

Taking of a blood sample from a convicted and incarcerated felon pursuant to T.C.A. § 40-35-321 is a search, but it does not violate U.S. Const. amend. 4 or Tenn. Const. art. 1, § 7 when it is reasonable under the totality of the circumstances. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

T.C.A. § 40-35-321 was constitutional as applied to defendant, and therefore the trial court did not err by denying his motion to suppress, because the blood draw and its subsequent analysis were reasonable under all of the circumstances, which included the facts that: (1) The gravity of the public concern served by the searches was significant, given that DNA more accurately identified those who committed and were convicted of felonies; and (2) T.C.A. § 40-35-321 clearly and unambiguously specified who was subject to the searches. State v. Scarborough, 201 S.W.3d 607, 2006 Tenn. LEXIS 758 (Tenn. 2006).

In defendant's aggravated rape case, the court did not err when it denied his motion to suppress the warrantless taking of his blood while in custody on an unrelated offense and the identification of his DNA profile from the DNA databank because defendant fell within the parameters of T.C.A. § 40-35-321(d) in that he was convicted of a felony on December 8, 2000, and the blood draw from defendant, and its subsequent analysis, were reasonable under all of the circumstances. State v. Cannon, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 27, 2006), aff'd in part, rev'd in part, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Where defendant submitted to blood draw and signed a consent form while imprisoned on an attempted theft charge, and a report indicated a DNA match between defendant and DNA evidence collected in an aggravated rape case, trial court properly denied his motion to suppress; warrantless taking of defendant's blood pursuant to T.C.A. § 40-35-321 while in custody for an unrelated offense did not violate his rights against search and seizures under Tenn. Const. art. I, § 7. State v. Cannon, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Proof that the police officers sought a warrant was not necessary before the court found exigent circumstances for the blood draw existed. State v. Lands, 377 S.W.3d 678, 2012 Tenn. Crim. App. LEXIS 203 (Tenn. Crim. App. Mar. 29, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 534 (Tenn. Aug. 15, 2012).

Warrantless blood draw was not justified by exigent circumstances because, while an officer testified that it was necessary for all of the responding officers to remain on the scene to investigate, at least two officers were directed to obtain blood samples from defendant; the State failed to explain why one of those officers could not have started the warrant process while defendant was being transported to the hospital. State v. Cates, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 785 (Tenn. Crim. App. Sept. 28, 2015).

Defendant knowingly and voluntarily consented to having defendant's blood drawn because, when a state trooper read the implied consent form, defendant, who had been convicted of driving under the influence on prior occasions, twice interrupted, even before the trooper read the section regarding the mandatory blood draw, to express defendant's willingness to have a blood test. Furthermore, defendant, once fully informed of the consequences of refusing the test, again eagerly expressed a willingness to have defendant's blood drawn. State v. Richter, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. Dec. 22, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 844 (Tenn. Nov. 16, 2016).

Trial court erred in denying defendant's motion to suppress the results of his blood alcohol test, as defendant did not consent, there were no exigent circumstances, and the trial court erred in applying the good faith exception to the warrant requirement. State v. Wilson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. Apr. 21, 2016).

Trial court erred in denying defendant's motion to suppress the results of his blood alcohol test, as defendant did not consent, there were no exigent circumstances, and the trial court erred in applying the good faith exception to the warrant requirement. State v. Wilson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. Apr. 21, 2016).

Defendant's cooperation with the blood draw, after the officer explained to defendant that he had to give a blood sample because he had a prior DUI, did not imply actual consent and the trial court did not err in concluding that defendant's consent was not unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Sprawling, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 480 (Tenn. Crim. App. July 5, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 847 (Tenn. Nov. 22, 2016).

State failed to establish exigent circumstances justifying the blood draw without a valid search warrant, as the search warrant allowed the blood draw to take place in the first county, because the officer did not attempt to obtain a search warrant in the second county and there was some evidence that defendant was consuming alcohol shortly before he was stopped, reducing the risk that the alcohol in his blood would dissipate before a warrant was obtained. State v. Nunnery, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. July 13, 2017).

Results of defendant's blood test were admissible because at the time of the warrantless blood draw, such a draw was authorized due to a per se exigency, and because the deputy strictly complied with this practice, the good faith exception to the exclusionary rule applied. The deputy had probable cause to believe that defendant had been driving under the influence of alcohol because he testified that after the single-car crash, he saw defendant laying in the road with an open leg fracture, he smelled alcohol around the car and defendant, and defendant was confused; the deputy also testified he was concerned about the nature dissipation of alcohol in defendant's bloodstream. State v. Cates, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 885 (Tenn. Dec. 6, 2017).

Trial court did not err by suppressing the results of the warrantless blood draw performed on defendant because the State failed to show that defendant's blood was drawn pursuant to a recognized exception to the warrant requirement, as the good-faith exception did not apply because no officer followed the proper procedure of reading the implied consent form to defendant. State v. Henry, 539 S.W.3d 223, 2017 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Sept. 14, 2017).

Defendant voluntarily consented to having defendant's blood drawn, because, after defendant initially agreed to a blood draw and then decided not to agree to a blood draw, a police officer correctly told defendant, who had a prior driving under the influence conviction, that a new misdemeanor charge would be added. Defendant then did not protest the blood draw and willingly went into a hospital for a blood draw. State v. Henry, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Oct. 23, 2018).

Trial court erred by denying defendant's motion to suppress the results of a warrantless blood draw following a fatal automobile accident because an exigent circumstance did not exist as the officers did not attempt to obtain a search warrant because they believed it was not legally necessary to obtain a warrant, an officer's speculation about treatment that defendant may have required did not give rise to an exigent circumstance, and no attempt was made to secure a warrant prior to an officer learning of defendant's imminent need for surgery. State v. Oaks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 93 (Tenn. Crim. App. Feb. 12, 2019).

No credible argument can be made that the statutory implied consent actually supplies the type of voluntary consent sufficient to create an exception to the warrant requirement. State v. Hafer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 26, 2020).

Defendant voluntarily consented to the blood draw before the officer read the implied consent form to her; the officer advised that should she refuse the blood draw, she could be convicted of violating the implied consent law and lose her license but it could not be said that this extracted defendant's consent on pain of committing a criminal offense. Nothing suggested her will was overborne or her capacity was critically impaired. The trial court erred by granting defendant's motion to suppress. State v. Hafer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 26, 2020).

28. —Conversations.

Defendants had no reasonable expectation that they could conduct a private conversation in the back of a police cruiser; thus, introduction of a tape recording of their conversation was not error. State v. Morgan, 929 S.W.2d 380, 1996 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. 1996).

The recording of conversations between a confidential informant and an accused does not violate the federal or Tennessee constitution and information received by deputy sheriff monitoring and recording conversations between the defendant and the confidential informants was not the result of an unreasonable search and seizure and could be used to establish probable cause for the issuance of a search warrant. State v. Vanderford, 980 S.W.2d 390, 1997 Tenn. Crim. App. LEXIS 1249 (Tenn. Crim. App. 1997).

Secretly videotaped conversations between a suspect and that suspect's parents that were made while they were alone in a police interrogation room were inadmissible since the suspect had a reasonable expectation of privacy; however, the trial court's denial of a motion to suppress the videotapes was harmless error during the guilt phase of trial. State v. Munn, 56 S.W.3d 486, 2001 Tenn. LEXIS 630 (Tenn. 2001).

Denial of defendant's motion to suppress calls made while in pretrial incarceration was proper because he had neither an actual, subjective expectation of privacy nor an objective expectation of privacy in the recorded conversations. Given primarily that defendant was told explicitly and on more than one occasion that his calls were being monitored and recorded by jail officials, the appellate court was unable to see how defendant could have credibly argued that he possessed a reasonable and legitimate expectation that the calls would remain private. State v. Hill, 333 S.W.3d 106, 2010 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. May 12, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 953 (Tenn. Oct. 12, 2010).

29. —Investigative Stops.

An officer, when in reasonable fear of his or other's safety, has authority to conduct a carefully limited search in an attempt to discover weapons which might be used to assault him while conducting an investigative stop based upon reasonable suspicion supported by specific and articulable facts, even absent probable cause for arrest. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

A police officer, investigating two urgent, anonymous radio reports of a man threatening people with a shotgun, acted reasonably under the U.S. Const. amend. 14 and Tenn. Const. art. 1, § 7, by briefly stopping the defendant, whom the officer spotted in a moving vehicle matching the description in the radio reports, to investigate the reports. State v. Pulley, 863 S.W.2d 29, 1993 Tenn. LEXIS 309 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 344 (Tenn. Sept. 27, 1993).

Because defendant's car had begun to move, and thus, rather than approach a parked car, the officer turned on his blue lights to stop the defendant, clearly initiated a stop; thus defendant was not free to leave the scene but, rather, had been “seized” within the meaning of the Terry decision. State v. Pulley, 863 S.W.2d 29, 1993 Tenn. LEXIS 309 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 344 (Tenn. Sept. 27, 1993).

A police officer could rely on N.C.I.C. information as to registration of a vehicle in making an investigative stop, and the stop was not invalidated even though the information was wrong. State v. Rhymer, 915 S.W.2d 465, 1995 Tenn. Crim. App. LEXIS 838 (Tenn. Crim. App. 1995).

Officer did not have a reasonable suspicion to stop defendant's vehicle solely on the basis of its presence in “high crime area” late at night. State v. Lawson, 929 S.W.2d 406, 1996 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. 1996).

Under Tenn. Const. art. I, § 7, a stop based upon probable cause is valid irrespective of the subjective motivations of the police officer making the stop; Tenn. Const. art. I, § 7 is coextensive with the protection afforded by U.S. Const. amend. 4. State v. Vineyard, 958 S.W.2d 730, 1997 Tenn. LEXIS 634 (Tenn. 1997), rehearing denied, — S.W.2d — 1998 Tenn. LEXIS 58 (Tenn. Feb. 17, 1998).

Corroboration of anonymous tip, indicating eye-witness basis of knowledge, combined with informant's demonstrated past credibility and police officer's independent corroboration, are specific and articulable facts sufficient to support finding of reasonable suspicion justifying investigatory stop. State v. Bridges, 963 S.W.2d 487, 1997 Tenn. LEXIS 642 (Tenn. 1997).

Defendant's rights were violated where officer lacked the specific, articulable facts necessary to create a reasonable suspicion that would warrant an investigatory stop; thus, the evidence obtained as a result of the stop should have been suppressed. State v. Harper, 31 S.W.3d 267, 2000 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. 2000).

The test of the constitutionality of roadblocks examines: (1) The gravity of the public concerns served by the roadblock; (2) The degree to which the roadblock advances the public interest; and (3) The severity of the roadblock's interference with an individual's liberty or privacy. State v. Hicks, 55 S.W.3d 515, 2001 Tenn. LEXIS 658 (Tenn. 2001).

A roadblock will necessarily fail constitutional examination if it lacks a sufficiently compelling state interest, and the presence of such interest is necessary before an examination of the other aspects of a roadblock may proceed. State v. Hicks, 55 S.W.3d 515, 2001 Tenn. LEXIS 658 (Tenn. 2001).

The most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field, and two facts critical to finding that those officers' discretion was properly limited are: (1) The decision to set up the roadblock in the first instance cannot have been made by the officers actually establishing the checkpoint; and (2) The officers on the scene cannot decide for themselves the procedures to be used in operating the roadblock. State v. Hicks, 55 S.W.3d 515, 2001 Tenn. LEXIS 658 (Tenn. 2001).

A stop based upon probable cause to believe the traffic code has been violated is constitutionally permissible, regardless of the subjective motivation of the police officer making the stop. State v. Harton, 108 S.W.3d 253, 2002 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. 2002).

Defendant's traffic stop was not based upon reasonable suspicion, as there was no evidence of pronounced weaving or hard swerving. The evidence in the case had to be suppressed, because defendant's consent to search his vehicle was not sufficiently attenuated from his unlawful detention, as the lapse of time between the illegal detention and defendant's consent was negligible; because the officer immediately began questioning defendant after telling him he was free to leave; and because the officer had no reasonable basis to detain defendant once her suspicion that he was intoxicated was quelled two minutes into the traffic stop. State v. Garcia, 123 S.W.3d 335, 2003 Tenn. LEXIS 856 (Tenn. 2003), cert. denied, Tennessee v. Garcia, 541 U.S. 974, 124 S. Ct. 1883, 158 L. Ed. 2d 469, 2004 U.S. LEXIS 2592 (2004).

Where defendant's vehicle was stopped on a street blocking a lane of travel and the engine was idling, the officer was permitted to approach the car as part of his public safety function, and defendant was charged with driving under the influence; the trial court erred by granting his motion to surpress the evidence obtained from the traffic stop. State v. Williams, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. Apr. 5, 2005), rev'd, 185 S.W.3d 311, 2006 Tenn. LEXIS 181 (Tenn. 2006).

Officer did not have reasonable suspicion to stop defendant's vehicle because, prior to pulling over defendant's vehicle, the only communication between the officer and another driver consisted of the driver's flashing lights at the officer and gesturing toward defendant's vehicle; the officer knew nothing about either driver or the nature of the citizen's concern regarding defendant, and without speaking to the unknown citizen, the officer was unable to assess the citizen's reliability or the basis for knowledge of defendant's supposed offense — or if the other driver even knew anything about defendant. State v. Day, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 212 (Tenn. Crim. App. Mar. 7, 2007), aff'd, 263 S.W.3d 891, 2008 Tenn. LEXIS 615 (Tenn. Sept. 22, 2008).

In a possession of controlled substances case where defendants were arrested following a traffic stop for violating the impeding traffic statute, trial court erred by granting defendants' motion to suppress evidence because a driver of a slow-moving automobile impedes traffic when reduced speed interrupts normal and reasonable movement of traffic by blocking or backing up traffic; furthermore, trial court halted the suppression hearing before arresting officer finished testifying and did not consider the state's alternative arguments that officer was justified in stopping defendants' vehicle to ascertain whether the driver was suffering from a medical emergency. State v. Hannah, 259 S.W.3d 716, 2008 Tenn. LEXIS 417 (Tenn. June 23, 2008).

Trooper's pat-down of defendant was reasonable because after lawfully stopping defendant for speeding, the trooper stated that when defendant stepped out of the vehicle, he saw a bulge in defendant's pocket; in order to determine that defendant did not have a weapon, the trooper patted down defendant. State v. Brown, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App. Mar. 31, 2008), aff'd, 294 S.W.3d 553, 2009 Tenn. LEXIS 676 (Tenn. Oct. 9, 2009).

Police officer's warrantless questioning and detention of defendant did not violate Tenn. Const. art. I, § 7 because: (1) Officer's use of blue lights when driving down a highway exit ramp in the wrong direction toward defendant's truck was a proper exercise of his community caretaking function and was not initially directed at any particular individual; and (2) Officer had reasonable suspicion that defendant's truck was the one that a caller had identified as driving recklessly. State v. Hanning, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. Apr. 29, 2008), aff'd, 296 S.W.3d 44, 2009 Tenn. LEXIS 682 (Tenn. Oct. 20, 2009).

Defendant's conviction for driving under the influence was appropriate because his rights under U.S. Const. amend. IV and Tenn. Const. art. I, § 7 were not violated. A citizen's anonymous tip reporting reckless driving indicated a sufficiently high risk of imminent injury or death to members of the public to warrant immediate intervention by law enforcement officials and justified the brief investigatory stop; the report further indicated that the caller was witnessing an ongoing offense and it also provided a detailed description of the truck and its direction of travel and location. State v. Hanning, 296 S.W.3d 44, 2009 Tenn. LEXIS 682 (Tenn. Oct. 20, 2009).

Under T.C.A. § 55-4-110, Tennessee did not require a single vehicle to have a light to illuminate the license plate, and as such, the deputy did not have reasonable suspicion to stop defendant; the record failed to reflect that the officer had reasonable suspicion defendant had committed or was about to commit a crime, and the trial court erred in denying the motion to suppress. State v. Hunt, 302 S.W.3d 859, 2009 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 17, 2009), superseded by statute as stated in, United States v. Melton, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 204080 (E.D. Tenn. Dec. 12, 2017).

Defendant's conviction for driving under the influence, fourth or greater offense, was improper because the officer did not have a reasonable suspicion of criminal activity to justify the seizure. The officer was not performing a community caretaking function because there was no indication that defendant needed assistance, nor was there any other evidence that she needed to activate the lights for safety reasons. State v. Moats, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. Nov. 8, 2011), aff'd, 403 S.W.3d 170, 2013 Tenn. LEXIS 311 (Tenn. Mar. 22, 2013).

Court of criminal appeals erred in affirming an order sustaining defendant's motion to suppress cocaine a police officer observed in his vehicle when he ordered defendant out of the vehicle to sign the citation pursuant to T.C.A. § 55-10-207 because the officer was entitled to remove defendant from the vehicle for a short period of time after making the traffic stop, and The traffic stop had not been completed at the time defendant was asked to step out of his vehicle; an officer, after making a lawful stop for a traffic violation, may routinely direct the driver outside of the vehicle. State v. Donaldson, 380 S.W.3d 86, 2012 Tenn. LEXIS 582 (Tenn. Aug. 24, 2012).

Court of criminal appeals' finding that at the time of the seizure, the officer lacked a reasonable suspicion based upon specific and articulable facts that defendant had either committed a criminal offense or was about to do so was affirmed where the court of criminal appeals considered the totality of the circumstances, reviewed the officer's testimony and observations, and concluded that there existed no reasonable suspicion of illegal activity at the time of the stop. Moreover, the officer was unable to offer specific and articulable facts sufficient to qualify as reasonable suspicion that defendant had committed or was about to commit a criminal offense, and she conceded that she did not see defendant drive the truck, engage in a drug transaction, or otherwise do anything illegal before activating her blue lights and approaching the truck; further, the early morning hour and a general request for officers to be on the lookout for suspected illegal drug activity did not, without more, rise to the level of reasonable suspicion, and an inchoate and unparticularized suspicion or hunch did not meet the standard required for an investigatory stop. State v. Moats, 403 S.W.3d 170, 2013 Tenn. LEXIS 311 (Tenn. Mar. 22, 2013).

Although the activation of blue lights on a police vehicle ordinarily triggered a stop or seizure, thereby implicating constitutional protections, the totality of the circumstances had to be considered to determine whether the police officer was acting within a community caretaking role, which was a concept separate and distinct from the investigation of possible criminal activity. As a general rule, if the activation of blue lights was not used as a show of authority directed at a particular person, the officer was acting within the community caretaking function and need not support his or her actions with reasonable suspicion or probable cause; therefore, because the circumstances demonstrated that the officer was not acting within a community caretaking role and did not have reasonable suspicion or probable cause to seize defendant, the judgment of the court of criminal appeals that defendant was seized without probable cause or reasonable suspicion was affirmed. State v. Moats, 403 S.W.3d 170, 2013 Tenn. LEXIS 311 (Tenn. Mar. 22, 2013).

As officers responding to a dispatch report of domestic violence at a specific location encountered defendant running away from police through brush to the rear of residential homes, and defendant refused to follow police commands, at the very least officers had reasonable suspicion to conduct an investigatory stop. State v. Smith, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Aug. 13, 2014), aff'd in part, rev'd in part, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Fact that the residence from which defendant fled had an extensive history of narcotics and gang activity, the officer had personally witnessed criminal activity at the residence on multiple occasions, and the officer observed several individuals standing on the porch, a known pattern of criminal activity, provided the officer with reasonable suspicion that defendant was engaged in narcotics related criminal activity or was attempting to flee arrest pursuant to a warrant. State v. Nelson, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Aug. 18, 2014), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 65 (Tenn. Jan. 21, 2016).

Evidence did not preponderate against the trial court's ruling that the officer had reasonable suspicion to stop defendant's vehicle based upon the officer's observation of an inoperable headlight and the fact that the headlight was functioning properly approximately two months before the suppression hearing did not render the stop illegal nor did it prove that the headlight was functioning properly on the night in question. State v. Mullican, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Mar. 4, 2015).

In a driving under the influence case, a motion to suppress was improperly granted because the proper inquiry was not whether there was evidence beyond a reasonable doubt that defendant violated the statute relating to driving on roadways with laned traffic, but whether a trooper's observations supported a reasonable suspicion that defendant committed a traffic offense; the video evidence showed defendant touching and crossing the center line. An offensive hand gesture was not a specific and articulable fact upon which reasonable suspicion of any crime could have been based. State v. Aaron, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. July 10, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 164 (Tenn. Feb. 19, 2016).

At the time he initiated the traffic stop, the officer knew that defendant, a known burglar, was identified as a possible suspect for a series of burglaries, the officer had a description of defendant's car and tag number, and the officer clearly had reasonable suspicion to conduct an investigatory stop of defendant's car; contrary to defendant's assertion that he was placed under arrest when the officer asked him to step out of the car, the officer made the request for reasons of officer safety. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Consensual encounter became an investigatory stop when the officer told defendant to turn off the car after observing that the car had been running with both the driver and the passenger slumped over and unconscious, defendant's eyes were bloodshot, the officer had to shake defendant to wake him, and the officer found defendant's speed to be slurred. State v. Gormsen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Oct. 6, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 387 (Tenn. June 23, 2016).

Investigatory stop was justified, because the totality of the circumstances surrounding the traffic stop, including the fact that it was 3:00 a.m., defendant was driving on dry roads, and defendant was driving on a highway with clearly marked lanes, established a reasonable suspicion, supported by specific and articulable facts that defendant violated T.C.A. § 55-8-123(1) when she crossed the fog line and failed to remain entirely within her lane of travel. State v. Smith, 484 S.W.3d 393, 2016 Tenn. LEXIS 92 (Tenn. Feb. 11, 2016).

Trial court did not err in denying defendant's motion to suppress as the information provided by a known citizen informant was sufficient to meet the threshold of specific and articulable facts necessary to establish reasonable suspicion to stop defendant's vehicle because the informant stated that one of his neighbor's drug dealers arrived at her house with his drug pouch in his hand; and the informant described defendant's truck and the license plate number to the dispatcher, and the time that defendant departed from his neighbor's residence. State v. Foster, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 446 (Tenn. June 23, 2016).

In a driving under the influence case, a motion to suppress was improperly granted because there was no violation of the United States and Tennessee Constitutions since an officer had a reasonable suspicion to make an investigatory stop for speeding. The officer testified that he observed the defendant driving at a high rate of speed and about defendant's behavior; moreover, a lay witness was able to estimate speed. State v. Neumann, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. May 4, 2016).

Trial court erred in denying defendant's motion to suppress because there was no probable cause, reasonable suspicion of criminal activity, or consensual encounter as required by the state and federal constitutions where the information provided by an anonymous caller to a police dispatcher was merely a description of a truck and its general location, there were no details showing how the caller knew that the driver was impaired, and the investigating officer's one-minute interaction with defendant prior to seizing her did not remedy the defect where the officer only observed that defendant had “watery eyes” and did not suspect defendant of being impaired when he took her driver's license. State v. Wascher, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 414 (Tenn. Crim. App. June 6, 2016).

Trial court did not err in denying defendant's motion to suppress, because the officer had probable cause for the stop after observing defendant's vehicle crossing the yellow line into the oncoming lane of traffic. State v. Bell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. July 25, 2016).

Evidence of defendant's intoxication was admissible at defendant's trial for driving under the influence because a police officer's warrantless detention of defendant and defendant's vehicle was valid as it was supported by reasonable suspicion that defendant was obstructing a roadway. The officer testified that defendant's vehicle was stopped in the middle of the roadway in the early morning hours, the engine was running, the vehicle's lights were on, a door was open, and somebody other than defendant was standing up outside of the car. State v. Christopher, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 6, 2016).

Trial court erred by finding that the initial encounter between the trooper and defendant was not consensual because the trooper did not block defendant's car or activate his emergency lights and defendant opened her car door to speak with the trooper as he approached. State v. Irwin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 841 (Tenn. Crim. App. Nov. 8, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 144 (Tenn. Feb. 23, 2017).

Trial court properly denied defendant's motion to suppress as the officers had reasonable suspicion to justify the investigatory stop of defendant because he was in a high-crime area; an officer stated that he saw an individual hand money to defendant and that he saw defendant hand something to the individual; and defendant had told an officer on multiple occasions that he sold drugs, and the officer had arrested people around defendant for drugs; furthermore, the officer had probable cause to arrest defendant because, during that stop, the officer saw baggies containing what appeared to be crack cocaine in defendant's mouth. State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Dec. 12, 2017).

Trial court did not err in denying defendant's motion to suppress evidence obtained following a traffic stop because a trooper's investigatory stop of defendant's vehicle was reasonable; the fact that a video did not show that defendant ran a stop sign was not a sufficient basis to discount the trooper's sworn testimony that after reviewing his report and the video, he recalled observing defendant's vehicle fail to come to a stop at the stop sign. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 364 (Tenn. June 6, 2018).

Trial court did not err in granting defendant's motion to suppress the evidence obtained after a trooper's traffic stop of defendant based on defendant's alleged violations of the reckless driving statute, the Due Care law, and the failure to maintain the lane of travel statute because, although the trial court did not explicitly discredit the trooper's testimony, the trial court found that the video recording did not sufficiently corroborate his testimony that defendant swerved in her lane of traffic or crossed over the center dividing line; and, as such, the stop and subsequent seizure of defendant was not supported by reasonable suspicion or probable cause. State v. Gadzo, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. July 19, 2018).

Trial court properly denied defendant's motion to suppress because the first officer had probable cause to justify the traffic stop after the second officer saw that defendant was not wearing a seat belt; the second officer saw defendant making furtive movements in the car; the second officer stated that he had defendant get out of the car primarily as he had been seen going out of the room at a motel room that contained a possible methamphetamine lab and for officer safety; and, immediately upon defendant's exit, the second officer saw the methamphetamine lab in the floorboard of the front passenger's seat. State v. Mathis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 9, 2018).

Investigatory stop of defendant's vehicle did not violate defendant's rights, as the officer had reasonable suspicion that defendant was committing the crime of driving under the influence when he stopper her, based on information given to him from a witness that defendant erratically parked one vehicle, fell multiple times, appeared to have vomited, reentered a different vehicle, and began driving. State v. Van De Gejuchte, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 834 (Tenn. Crim. App. Nov. 9, 2018).

Trial court erred in granting defendant's motion to suppress because the trial court erred in not allowing the State to present its alternative theory that defendant's crossing of the fog line provided probable cause or a reasonable suspicion to justify the traffic stop; and, in doing so, the trial court did not make any factual findings or conclusions of law on that theory, and the parties were prevented from addressing important factual issues regarding that theory, such as whether the officer activated his blue lights before or after observing defendant cross the fog line; thus, the case was remanded for a new suppression hearing. State v. Harrison, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 47 (Tenn. Crim. App. Jan. 23, 2019).

Evidence did not preponderate against the trial court's findings that a police officer had reasonable suspicion that developed during the duration of the traffic stop sufficient to permit the prolonging of the traffic stop to inquire into other matters, specifically whether a passenger in defendant's vehicle had an outstanding warrant for his arrest and later the odor of marijuana. State v. Cole, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. Sept. 6, 2019).

Investigatory detention of defendant was justified because, when police officers arrived at defendant's apartment, they only knew that the one-year-old victim had been badly injured while in defendant's care and had subsequently died. The court therefore did not err in denying defendant's motions to suppress statements which defendant voluntarily made to a police detective during an interview after being taken to a police station because neither the detective, nor any other officer, was coercive or threatening while interacting with defendant. State v. Batiz, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Nov. 1, 2019).

Denial of defendant's motion to suppress video recording of defendant's traffic stop, blood test results, and results of defendant's field sobriety tests was appropriate because there was reasonable suspicion for an officer to conduct an investigatory stop of defendant in that defendant left the scene of a motor vehicle accident when the officer approached and people at the accident scene identified the fleeing car as being involved in the accident. The officer smelled alcohol and defendant performed unsatisfactorily on field sobriety tests. State v. Cameron, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. Jan. 15, 2020).

Trial court did not err by denying defendant's motion to suppress because the initial stop of defendant's vehicle for a traffic violation was justified, the officer found that defendant did not have a valid driver's license, the officers' asking defendant to step out of the vehicle and frisking defendant was not unreasonable, the amount of time that elapsed from the initial stop to a police drug dog's alert on defendant's car was not unreasonable, and the search of defendant's person when nothing was found in the car was not unreasonable. State v. Carero, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. Feb. 3, 2020).

Officer had reasonable suspicion to conduct an investigation before defendant turned to flee because the sergeant saw defendant at 2:30 a.m. in a high crime area, he saw defendant engaged in a hand-to-hand transaction, defendant turned and shielded his body from the sergeant's view while doing something at his waistband, and when defendant saw the sergeant he turned to flee and fell. Because the investigation showed that defendant was trespassing and possessed crack cocaine, the officers had probable cause to arrest him, and the trial court did not err by denying defendant's motion to suppress. State v. Davis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 20, 2020).

Officer's pacing of defendant's vehicle was sufficient to give him probable cause evidence to stop defendant for speeding because the officer testified that he followed defendant's vehicle at a consistent distance and based on his speedometer, both vehicles were traveling 65 miles per hour in a 55 mile per hour speed zone. The officer stated he was trained in pacing, there was a certification of calibration on his vehicle's dash, and the distance from which he returned to the interstate to where he stopped defendant was approximately two miles. State v. Byrd, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. June 2, 2020).

Officer's activation of his emergency lights constituted a seizure and the officer's observations that the occupants of the van did not appear to have been wearing seat belts was a basis of establishing probable cause or reasonable suspicion to initiate a stop, which was not challenged by second and third defendants and thus, defendants were not entitled to relief from the denial of the motion to suppress. State v. Morales, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Sept. 18, 2020).

Because defendant was prohibited from making a U-turn by municipal ordinance and the ordinance was not in conflict with state law, defendant's violation of that ordinance resulted in a constitutional stop based on the officer's reasonable suspicion that a traffic violation had occurred and the trial court did not err in granting defendant's motion to suppress. State v. Love, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 659 (Tenn. Crim. App. Oct. 8, 2020).

30. —Mandatory Drug Testing.

Even assuming construction contractor employed by government to service nuclear weapons plant was a government actor, such contractor's conducting of random, mandatory drug tests did not constitute unreasonable searches as risks to national security and safety were high, employees were forewarned, and tests were unobserved, confidential and not repeated unnecessarily. Ensor v. Rust Eng'g Co., 704 F. Supp. 808, 1989 U.S. Dist. LEXIS 849 (E.D. Tenn. 1989), aff'd without opinion, Ensor v. Rust Engineering Co., 935 F.2d 269, 1991 U.S. App. LEXIS 18001 (6th Cir. Tenn. 1991).

The state constitutional guarantee of privacy is not a source of public policy which restricts the right of private employers to discharge terminable-at-will employees who test positive on random drug tests. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 1997 Tenn. LEXIS 283 (Tenn. 1997).

Defendant was not entitled in a criminal action to suppress drug screen results from when defendant was ordered by a juvenile court judge in a dependent and neglect proceeding to submit to drug screening because the drug screening ordered by the juvenile court, after a finding of probable cause to believe that defendant's children were dependent and neglected—specifically referring to the methamphetamine usage by the children's parents, qualified for the special needs exception to the warrant requirement. State v. Patterson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 5, 2020).

31. —Premises.

Even though officers were legally on defendant's property to serve civil process, they were not authorized to make a warrantless search of the property and the seizure of marijuana plants as a result of that search was unconstitutional. State v. Harris, 919 S.W.2d 619, 1995 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. 1995).

Defendant had no reasonable expectation of privacy in the house or in the materials because defendant knowingly exposed the illicit materials to anyone entering the house, including city officials who entered the house upon legal process. The viewing of the images on various video items was proper because he abandoned them. State v. Ledford, 438 S.W.3d 543, 2014 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 13, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 372 (Tenn. May 14, 2014).

Tip which initiated the parolee search came from an unidentified informant whose reliability and basis of knowledge was not established, any potential exigent circumstances that prompted the officers to break-in to the home no longer existed once they realized no one was home destroying evidence, and once the house was cleared, the subsequent extensive search without the parolee's presence did not further any legitimate law enforcement concerns, and thus the trial court correctly suppressed the evidence against defendant one as the search was constitutionally unreasonable. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

Suppression of evidence found in a warrantless search of defendants' residence was appropriate because officers' knocking on the front door for minutes while announcing their badge of authority rendered the encounter with one defendant who answered non-consensual and the knock and talk investigation unlawful so that the subsequent warrantless entry of the residence violated the prohibition against unreasonable searches and seizure. The subsequent consent to search was not voluntary and resulted from an exploitation of the prior illegality. State v. Hilliard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 774 (Tenn. Crim. App. Aug. 29, 2017).

31.5. —Parolee.

Because the officer knew about defendant one's parole status and defendant one was aware that he was subject to warrantless and suspicionless searches at any time as a condition of his parole, officers did not err in searching certain areas of his residence; there was no evidence that the search was unreasonable in a constitutional sense, and the trial court erred in suppressing the evidence. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

Even when faced with objections by non-parolees, officers may still enter a residence but may only search the areas that are under the control of the parolee, such as the parolee's bedroom or other areas over which the parolee shares common control or authority; law enforcement officers may not search areas that are under the non-parolee's exclusive control, such as the non-parolee's bedroom, simply because the non-parolee resides with someone on conditional release status. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

Because the parole search of the residence was proper, it was therefore permissible for officers to enter defendant three's bedroom to clear it for officer safety, and having cleared the residence, there was no longer an exigency as it related to defendant three's bedroom; the parole search was valid as it pertained to the common areas of the residence and the bedroom of defendants one and two, but it did not extend to defendant three's private quarters. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

Supreme Court of Tennessee expressly adopts the doctrine of common authority as it applies to parole searches of areas of a residence over which a parolee has common authority; in this case, defendants one and two shared a bedroom in the residence, and by virtue of the doctrine of common authority, officers did not err in searching and seizing all items of contraband found in the shared bedroom, and thus the trial court erred in suppressing the evidence against defendant two. State v. Stanfield, — S.W.3d —, 2018 Tenn. LEXIS 396 (Tenn. Aug. 7, 2018).

32. —Probable Cause.

Even considering a motorist's successful performance on a battery of field sobriety tests, a police officer had probable cause to arrest the motorist, without a warrant, for driving under the influence of an intoxicant because the motorist was driving on the wrong side of a divided highway late at night, smelled of alcohol, and admitted to having imbibed more than he should have. State v. Bell, 429 S.W.3d 524, 2014 Tenn. LEXIS 121 (Tenn. Feb. 20, 2014).

Traffic stop was supported by probable cause because a police officer's observations gave rise to specific, articulable grounds for reasonable suspicion that defendant was driving while under the influence; the officer observed defendant turning slowly and stopping short of a stop sign, which indicated impairment, and he also testified, and the police cruiser video recording reflected, that defendant failed to drive upon the right half of the roadway, which was a traffic violation. State v. Headla, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1061 (Tenn. Crim. App. Dec. 30, 2015).

Officer had probable cause and reasonable suspicion to initiate a traffic stop and search the automobile in which defendant was a passenger because the officer received information from a reliable confidential informant that the driver and another individual were selling drugs in a particular location; the officer observed a vehicle matching the informant's description, and once he stopped the vehicle, he found a substance that appeared to be methamphetamine in the vehicle. State v. Madden, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 429 (Tenn. Crim. App. June 5, 2018).

32.5. —Probationer.

Trial court did not err by denying defendant's motion to suppress because, when defendant signed a probation order, defendant agreed to unconditional warrantless searches of defendant's person, vehicle, and home so that the police only needed to establish reasonable suspicion to justify the searches of defendant's car and bedroom. Moreover, a police officer possessed articulable reasonable suspicion to believe that defendant, who was serving a sentence on probation for methamphetamine-related offenses, was engaged in unlawful drug activity. State v. Summers, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Aug. 8, 2017).

Based on defendant's agreeing to abide by the rules of his Behavior Contract Agreement as part of his probation, the police were not required to establish probable cause and obtain a search warrant before searching his residence, and such failure was not a violation of the Fourth Amendment, U.S. Const. art. IV, or Tenn. Const. art. I, § 7. State v. Ward, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Aug. 30, 2018).

33. —Consent.

One accused of illegal possession of whisky does not place himself beyond the guaranty against unlawful search contained in Tenn. Const. art. I, § 7 by voluntarily showing the whisky when confronted by officers with a warrant and told of the purpose to search if the whisky was not shown, the conduct being one of necessity rather than volition. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007, 1923 Tenn. LEXIS 3 (1923).

For search without warrant to be valid, entry must be without coercion. Simmons v. State, 210 Tenn. 443, 360 S.W.2d 10, 1962 Tenn. LEXIS 305 (1962); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Evidence obtained as result of search and arrest was not incompetent where officers were invited into room by one of the defendants and such defendant voluntarily opened box containing burglary tools at request of one of the officers. Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Defendant who only consented to search of his automobile upon being informed that officers had search warrant did not waive his rights against illegal search, such act being one of necessity rather than volition. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

Persons having equal rights to use and occupation of the premises may consent to a search of them and such search will be binding on the co-occupants. McGee v. State, 2 Tenn. Crim. App. 100, 451 S.W.2d 709, 1969 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. 1969).

Where defendant, a college student who was not formally placed under arrest, voluntarily accompanied officers to his apartment and, after they declined his request to leave the apartment for a few minutes, signed a written consent to search form, the court held he had voluntarily and understandingly waived his constitutional rights against unreasonable search and seizure and could not subsequently object to the use of the fruits of the warrantless search in evidence against him. Nix v. State, 530 S.W.2d 524, 1975 Tenn. Crim. App. LEXIS 279 (Tenn. Crim. App. 1975), cert. denied, Nix v. Tennessee, 423 U.S. 913, 96 S. Ct. 218, 46 L. Ed. 2d 142, 1975 U.S. LEXIS 3052 (1975).

To justify a warrantless search of premises owned or occupied by a citizen as a residence, he must give his consent, or such consent must be given by someone authorized by him, or having a common possessory interest or right, or there must exist a clear right to search under the exigent circumstances exemption. Rippy v. State, 550 S.W.2d 636, 1977 Tenn. LEXIS 536 (Tenn. 1977).

The warrantless search was unconstitutional where the police only had permission to search from the sister of the overseer of the apartment who herself had no possession interest. Rippy v. State, 550 S.W.2d 636, 1977 Tenn. LEXIS 536 (Tenn. 1977).

Search of defendant's car and person, which resulted in the seizure of contraband, was based on the defendant's voluntary consent where the defendant, in response to police questioning, stated, “You can look all you want.” State v. Simpson, 968 S.W.2d 776, 1998 Tenn. LEXIS 71 (Tenn. 1998).

To pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. State v. Ashworth, 3 S.W.3d 25, 1999 Tenn. Crim. App. LEXIS 262 (Tenn. Ct. Crim. App. 1999).

When a traffic stop ceases to be a detention and the driver voluntarily consents to additional questioning, no further seizure occurs. Thus, police officer did not continue to detain defendant by merely asking him a question about whether he was transporting contraband. State v. Ashworth, 3 S.W.3d 25, 1999 Tenn. Crim. App. LEXIS 262 (Tenn. Ct. Crim. App. 1999).

The subjective intentions of a police officer that are unknown to the consenting party at the time of consent do not implicate the voluntariness of the consent. State v. McCrary, 45 S.W.3d 36, 2000 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 2000).

Where, after defendant was issued a warning citation for speeding, the defendant consented to an officer's request to search for “any weapons in the vehicle,” the officer's search of the undercarriage and gas tank of the vehicle was unconstitutional because it exceeded the scope of defendant's consent and resulted in prolonged and unreasonable detention. State v. Troxell, 78 S.W.3d 866, 2002 Tenn. LEXIS 264 (Tenn. 2002).

Evidence did not show deaf murder defendant's compliance with officer's request to accompany the officer for questioning, following the officer's illegal entry into defendant's home, was consensual because it was not sufficiently clear that defendant knew of the right to decline the officer's request. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

Defendant's consent to a search of her motel room was voluntary where the officer had probable cause to stop defendant for her failing to use her turn signal, although he determined not to cite her for that infraction, the detention was thereafter justified by the discrepancy in the status of the vehicle license registration, she had a presumptive familiarity with the criminal justice system due to her previous felony conviction, the officer did not draw his weapon, and after she agreed to a search, the officer returned her driver's license and permitted her to drive her own vehicle to the motel. State v. Cox, 171 S.W.3d 174, 2005 Tenn. LEXIS 683 (Tenn. 2005).

In a drug case, a court properly suppressed evidence where, although defendant's consent to search was given voluntarily, the consent was not sufficiently attenuated from the unlawful detention. Although there was no reasonable suspicion that defendant was carrying on any criminal activity other than the speeding offense, the deputy confined defendant in the back of the patrol car, kept defendant's license, and subjected him to several minutes of “fishing-expedition” type questions before seeking consent to search; in addition, the deputy never issued defendant either a warning or citation ticket for speeding. State v. Berrios, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 3, 2006), aff'd, 235 S.W.3d 99, 2007 Tenn. LEXIS 745 (Tenn. Aug. 17, 2007).

Denying defendant's motion to suppress was not error where his initial consent to the search of his person was voluntary, his suspicious movements and behavior during the search provided reasonable suspicion for the searching officer to believe that defendant possessed a weapon, and thus, the search did not violate U.S. Const. amend. IV or Tenn. Const. art. I, § 7. State v. Cuddy, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 940 (Tenn. Crim. App. Nov. 23, 2015).

Trial court did not err by denying defendant's motion to suppress the results of a blood test because defendant knowingly, voluntarily, and intelligently consented to the blood test; a police officer requested that defendant submit to a blood test and did not require her to submit to a blood test, defendant sounded eager to give blood, she arguably asked for a blood alcohol test during the field sobriety tests, and she signed the implied consent form even though she was not under arrest. State v. Riddle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1044 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 322 (Tenn. May 5, 2016).

Trial court did not err by denying defendant's motion to suppress where the evidence did not preponderate against the trial court's finding that defendant consented to the search where the detectives testified that they asked defendant for consent to search twice, first in the school library and again when they and defendant arrived at the home. State v. Hernandez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Sept. 27, 2016).

Defendant's consent for the searches was not physically and psychologically coerced where he acknowledged at the suppression hearing that he consented to both searches and signed both consent to search forms, and the Mississippi officers' promise of leniency had no bearing on the agreement between defendant and the Tennessee officers. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. May 4, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 647 (Tenn. Oct. 4, 2017).

trial court did not err by finding that defendant consented to the search of his truck because he had previously been convicted of possession of marijuana, nothing in the record suggested that the officers pressured or coerced defendant into consenting, and when the officer asked defendant if he would mind if the officer tried to open the locked toolbox with defendant's keys, defendant told the officer to go ahead. State v. Kelley, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Aug. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 866 (Tenn. Dec. 6, 2017).

34. — —Third-party Consent.

The consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared; overruling the “angry wife exception” set forth in Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545, 1946 Tenn. LEXIS 273 (1946). State v. Bartram, 925 S.W.2d 227, 1996 Tenn. LEXIS 419 (Tenn. 1996).

Where detectives went to a controlled access condominium building after receiving a tip that defendant was selling drugs from his condominium, he did not have a reasonable expectation in the building's common areas; therefore, his rights under Tenn. Const. art. I, § 7 were not violated when another man exited the building and let the detectives inside. Defendant was not entitled to suppress evidence of drugs or his incriminating statement obtained after a female occupant of defendant's unit gave detectives consent to search where they found drug paraphernalia; the officers found additional admissible evidence of drugs and pornography after they obtained a warrant to search defendant's condominium and his place of business. State v. Talley, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. July 1, 2009), aff'd, 307 S.W.3d 723, 2010 Tenn. LEXIS 147 (Tenn. Mar. 19, 2010).

Access by third parties alone does not necessarily negate a reasonable expectation of privacy in a locked apartment building's common areas. State v. Talley, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. July 1, 2009), aff'd, 307 S.W.3d 723, 2010 Tenn. LEXIS 147 (Tenn. Mar. 19, 2010).

Motion to suppress was properly denied because defendant did not have a reasonable expectation of privacy in the commonly shared, interior hallway of a condominium complex that ran from the front entrance to his unit's doorway and his live-in girlfriend's consent to enter the apartment unit was valid. State v. Talley, 307 S.W.3d 723, 2010 Tenn. LEXIS 147 (Tenn. Mar. 19, 2010), cert. denied, Talley v. Tennessee, 562 U.S. 839, 131 S. Ct. 187, 178 L. Ed. 2d 43, 2010 U.S. LEXIS 5795 (U.S. 2010).

Deputies conducted a valid warrantless search of the home pursuant to valid consent by defendant's relative; although the officers were armed, no firearms were pointed at any of the home's occupants, defendant's use of the bedroom was the result of a familial relationship and all occupants had access to all areas of the home, the relative retained joint access and control of the bedroom in which defendant resided, and defendant's occupancy of the bedroom was not so exclusive as to have deprived the relative of authority to consent to a cursory search of the home. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

Trial court did not err when it found that defendant's mother voluntarily consented to the search of defendant's bedroom, after the officer went over the form in detail with the mother, and that her consent was sufficiently attenuated from defendant's illegal seizure the day before. State v. Bryant, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 22 (Tenn. Jan. 19, 2017).

Only fact presented and relied upon by the State to establish common authority was that defendant three's bedroom door was open, but this alone was not enough to establish that defendants one or two possessed common authority or that searching officers would have reasonably believed that defendant one had authority over defendant three's bedroom, and the motion to suppress was properly granted. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

Trial court properly denied defendant's motion to suppress evidence obtained during the search of an apartment shared by defendant and his girlfriend because after a police officer completed an initial search of the apartment for suspects, the girlfriend had returned home and consented to a subsequent search of the apartment; none of the evidence used to convict defendant was seized until after the girlfriend consented to a warrantless search of the apartment she shared with defendant. State v. Reed, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 129 (Tenn. Crim. App. Feb. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 460 (Tenn. July 18, 2018).

35. —Incident to Lawful Arrest.

Where defendants were arrested by officers during flight after commission of grand larceny and one of defendants attempted to dispose of claim check for automobile in parking lot, search of the automobile was not an unreasonable search. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 1956 Tenn. LEXIS 326 (1956); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

If search is not incidental to arrest, then the search is illegal. Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925, 1963 Tenn. LEXIS 353 (1963); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where persons were arrested for disorderly conduct and while in custody, the officers having received information of a robbery, and without obtaining a search warrant, searched their automobile and their motel room where they found evidence connecting them with the robbery, the search was illegal. Ellis v. State, 211 Tenn. 321, 364 S.W.2d 925, 1963 Tenn. LEXIS 353 (1963); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where officer properly made arrest of persons suspected of burglary of telephone booths without warrants upon reasonable cause of belief of commission of felony by such persons but search of automobile of one of such persons was not made until two hours later such search was not incident to the arrest. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

If one is lawfully arrested he may be searched on his person or premises provided that such search is incidental to his arrest. West v. State, 221 Tenn. 178, 425 S.W.2d 602, 1968 Tenn. LEXIS 517 (1968).

Where defendant was arrested outside his motel room, a routine search, without a warrant, through closed and concealed areas of the room was unreasonable. Taylor v. State, 551 S.W.2d 331, 1976 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1976).

The warrantless seizure of an individual's clothing may be considered as a reasonable, hence constitutional, search when made while he is in custody following his arrest. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

The U.S. Const. amend. 4 and Tenn. Const. art. I, § 7 strictly limit search without a warrant incident to lawful arrest to search of the body of the person being arrested and the area within his immediate control. State v. Harrison, 756 S.W.2d 716, 1988 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1988).

The area within which the arrestee might gain possession of a weapon or destructible evidence, the “grab area,” which may be searched without a search warrant incident to a lawful arrest, does not extend to closed or concealed areas of the room in which the arrest is made. State v. Harrison, 756 S.W.2d 716, 1988 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1988).

When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. State v. Watkins, 827 S.W.2d 293, 1992 Tenn. LEXIS 223 (Tenn. 1992).

A police officer may conduct a search of the passenger compartment of an automobile incident to an arrest even when the arrested person is neutralized in the back seat of a squad car. State v. Watkins, 827 S.W.2d 293, 1992 Tenn. LEXIS 223 (Tenn. 1992).

Stereo equalizer and marijuana were discovered by police officers, in the passenger compartment of the car defendant had been driving, in the course of conducting a valid search incident to the defendant's lawful arrest; and the fact that one of the officers said that he and his partner began “inventorying” the defendant's vehicle after his arrest, did not invalidate the search. State v. Watkins, 827 S.W.2d 293, 1992 Tenn. LEXIS 223 (Tenn. 1992).

Warrantless search of a wrecked motorcycle by police after the driver was taken away by ambulance was not a search incident to arrest, even though the police intended to and had probable cause to arrest the defendant at the scene of the accident, because the police did not arrest the defendant due to his injuries, told the defendant he was being taken for medical treatment, and did not take him into custody until he was released from the medical center. State v. Crutcher, 989 S.W.2d 295, 1999 Tenn. LEXIS 228 (Tenn. 1999).

Trial court erred in suppressing evidence found during a frisk of defendant pursuant to U.S. Const. amend. IV and Tenn. Const. art. I, § 7, because the search was a valid search incident to a lawful arrest. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Where drug sniffing dog reacted to the passenger side of defendant's vehicle, the presence of a passenger where the dog reacted created an equipoise: Had the contraband been placed in defendant driver's vehicle — and thus probably possessed by defendant — or possessed by the passenger without the defendant's knowledge? Under the unique facts of the case, the dog's reaction did not result in probable cause to arrest defendant. State v. Harris, 280 S.W.3d 832, 2008 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 6, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 629 (Tenn. Aug. 25, 2008).

Because the warrantless search of defendant's person by a police officer was justified under the search incident to arrest and the inventory search of all personal effects in an arrestee's possession exceptions to the warrant requirement, the officer's warrantless search of defendant and the seizure of the jewelry were valid. State v. Morris, 469 S.W.3d 577, 2014 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. May 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 838 (Tenn. Oct. 15, 2014).

Trial court erred in denying defendant's motion to suppress the marijuana found in defendant's pocket during a search incident to defendant's arrest for public intoxication because the officers lacked probable cause to arrest defendant for public intoxication. State v. Pippen, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 57 (Tenn. Crim. App. Jan. 28, 2016).

Trial court properly denied defendant's motion to suppress as defendant was searched incident to his arrest because, after the vehicle defendant was riding in was stopped on the basis of a traffic violation, defendant complied with the officers' request that he exit the vehicle; one of the officers then asked defendant if he had anything on his person, and defendant admitted that he possessed marijuana and was arrested; defendant was searched in conjunction with his arrest; and the search resulted in the discovery of the marijuana, heroin, and currency used in a drug transaction. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 30, 2018).

Defendant's motion to suppress the evidence obtained from a warrantless search of his motel room was properly denied because, even if defendant did not consent to the search, the officers had a right to search the room incident to his arrest as the officers identified defendant as the person on the Michigan arrest warrant and arrested him; as a precautionary measure, the officers performed a sweep of the room to ensure their safety; and, during that sweep, an officer saw a clear plastic bag on the table that appeared to be for packaging drugs and found a black bag that contained heroin, pills, plastic bags, and a money transfer receipt with defendant's name. State v. Savage, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Sept. 19, 2019).

Defendant's truck was properly searched incident to his arrest for possession of illegal drug paraphernalia because the methamphetamine pipe in defendant's pocket gave the agent an independent basis on which to arrest him, and defendant's standing in the open truck door, when combined with the pipe and the officers' collective knowledge of defendant's history of selling methamphetamine, was sufficient to create a reasonable belief that further evidence relevant to the crime might be found inside the truck. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 646 (Tenn. Crim. App. Oct. 11, 2019).

36. — Sobriety Checkpoints.

Notice of the sobriety checkpoint was in compliance with Tennessee Highway Patrol General Order 410-1, as notice was provided to local news outlets 17 days prior to the date of the roadblock; defendant pointed to no authority requiring that notice of the roadblock include a specific date, and the proof supported a determination that the sobriety checkpoint in this case was conducted with appropriate supervisory authority and that individual officer discretion in the field was extremely limited, and thus the sobriety checkpoint was constitutional. State v. Mitchell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. Dec. 3, 2015).

Although the checkpoint related to the State's interest in detecting impaired drivers, it violated the Fourth Amendment and Tenn. Const. art. I, § 7, because of the lack of advance notice of the checkpoint to the public, the officers' exercise of substantial discretion at the scene in determining which vehicles to stop, and the substantial deviations from the order, which required every car be stopped, severely interfered with defendant's privacy and liberty. State v. Franklin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 640 (Tenn. Crim. App. Aug. 21, 2018).

37. —Plain View.

Evidence obtained by officers while they were in lane extending over defendant's land, and used by defendant and others in getting to and from public road, was not obtained as result of a trespass upon private property. Cope v. State, 157 Tenn. 199, 7 S.W.2d 805, 1928 Tenn. LEXIS 189 (1928).

Where rifle used in armed robbery was plainly visible when officers walked up to defendant's automobile, seizure of rifle without search warrant did not amount to unlawful search and seizure and rifle was admissible in evidence against defendant. Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 1968 Tenn. LEXIS 512 (1968).

Obtaining evidence by means of the eye where no trespass has been committed in aid thereof does not constitute an unlawful search. Chadwick v. State, 1 Tenn. Crim. App. 72, 429 S.W.2d 135, 1968 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. 1968).

Where police observed defendant's activities relating to the cultivation of marihuana, from within the boundaries of defendant's farm without a warrant, they violated his right of privacy, despite the fact that the marihuana was growing in the open fields. State v. Wert, 550 S.W.2d 1, 1977 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. 1977).

Where a police officer was summoned after an airline agent had searched a package and discovered contraband, the fact that the contraband was in plain view when the officer arrived removed the officer from participation in the search, and his subsequent seizure of some of the contraband was not in violation of the search and seizure provisions of the constitution. State v. Johnson, 569 S.W.2d 808, 1978 Tenn. LEXIS 630 (Tenn. 1978).

The formula used by the Tennessee courts with regard to plain view searches is that: (1) The object must be in “plain view”; (2) The viewer must have the right to be in position for the view; (3) The seized object must be discovered inadvertently; and (4) The incriminating nature of the object must be apparent on its face. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

When law enforcement officers are in a place where they have a right to be and as a result thereof observe criminal activity, clearly recognizable as such, on the property of a defendant, the “open view” exception to the warrant requirement arises. State v. Layne, 623 S.W.2d 629, 1981 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. 1981), overruled, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984), overruled on other grounds, State v. Holt, 691 S.W.2d 520, 1984 Tenn. LEXIS 865 (Tenn. 1984).

No warrant is necessary to enter upon open farmland where officers have lawfully observed contraband growing thereon, either from an aerial overflight or from lawful ground observation. State v. Jennette, 706 S.W.2d 614, 1986 Tenn. LEXIS 824 (Tenn. 1986).

An officer was entitled to make the seizure of a knife that was plainly in view as it lay on the driver's side of the backseat floorboard when the officer had a legitimate reason for opening the car door, as a safety measure to watch two occupants make their exit. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

Trial court erred in suppressing evidence seized inside a residence under U.S. Const. amend. IV and Tenn. Const. art. I, § 7, because the items were properly seized under the plain view doctrine; even if the items were not in plain view and thus not properly seized under the plain view doctrine, the items would have inevitably been discovered during the officer's consensual search of the residence. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Defendant's motion to suppress was properly denied as evidence other than the active methamphetamine lab was properly seized because the majority of the seized evidence was in plain view; and the seizure of inactive labs concealed in a freezer, which were not in plain view, was proper based on exigent circumstances and the necessity of finding any and all active labs, and based on defendant particularly mentioning the freezer. State v. Christensen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 14, 2015), aff'd, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017).

Officers' warrantless search of defendant's home did not violate his rights because the officer's initial entry was justified by exigent circumstances, as upon his arrival he was met by three extremely agitated men who yelled that the suspect was inside, and evidence in plain view in the home could be examined and seized without a warrant. State v. Hutchinson, 482 S.W.3d 893, 2016 Tenn. LEXIS 83 (Tenn. Feb. 5, 2016).

Defendant's wounds from his attempted suicide was sufficient to create exigent circumstances justifying the officers' warrantless entry into his apartment for the limited purpose of securing the scene and rendering aid, and the officers found an apparent suicide note and photo of the victim in defendant's lap when then entered the apartment in plain view. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 775 (Tenn. Nov. 16, 2017).

Knife was properly seized from defendant's vehicle under the plain view doctrine, as the officer discovered the knife after he arrested defendant pursuant to a warrant and returned to defendant's vehicle to secure it, finding the knife and other items on the driver's seat. State v. Stanley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 207 (Tenn. Crim. App. Mar. 20, 2018).

Trial court did not err by denying defendant's motion to suppress because based on the arrest warrant, the presence of specific color and model of a vehicle defendant was known to drive, and a tip indicating the specific motel room in which defendant was staying, the officers had the authority to enter the motel room, and once defendant opened the door and an officer recognized him to be the subject of the arrest warrant, the officers were justified in entering the room to apprehend him. The officers were therefore legally in the room when they saw in plain view a plate and razor blade with a white powdery substance. State v. Brandon, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 31, 2020).

38. —Detention.

Evidence obtained following a traffic stop of the vehicle in which defendant was a passenger was admissible because defendant's detention, after the driver fled, was lawful based on the police officer's reasonable suspicion that defendant, whom the officer knew had been involved in the production of methamphetamine with the driver, was involved in criminal activity. State v. Bryant, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 5, 2016).

Evidence preponderated against the trial court's finding that the encounter was consensual, and it established that defendant was seized without a warrant, when he gave a statement, as defendant was taken to the police station by officers, placed in an interview room that was locked from the outside, and questioned about the victim's homicide. State v. Hawkins, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017).

39. —Civil Investigative Demands.

The compulsory taking of testimony and production of documents under the civil investigative demand statutes, title 8, ch. 6, part 4, is not violative of Tenn. Const. art. I, § 7 or U.S. Const. amend. 4, because they do not authorize an immediate intrusion into a protected zone of privacy, but rather authorize the taking of testimony and production of documents at a time subsequent to service of the demand with provision for a judicial determination of the reasonableness of the subpoena demand prior to enforcement of the demand by compulsory compliance or sanctions. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

Tennessee Const. art. I, § 7 as well as due process requirements will deter unreasonable civil investigative demands or subpoenas from being arbitrarily issued by the executive department. State, Dep't of Revenue v. Moore, 722 S.W.2d 367, 1986 Tenn. LEXIS 846 (Tenn. 1986).

39.5 —Reasonable suspicion.

Officers had reasonable suspicion to justify seizing defendant based on their observation of an associate of defendant purchasing a substance used to cut cocaine, personal knowledge of defendant's prior drug charges, and their observation of defendant engaging in what they believed to be several hand-to-hand drug transactions. State v. Hogan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 67 (Tenn. Crim. App. Feb. 1, 2019).

Sergeant had reasonable suspicion that defendant had violated the statute, as he saw defendant straddle the fog line and veer off the roadway without any observable justification, all nine of the passenger-side tires were on the rumble strips, and defendant was driving at night when fatigue was an issue; the sergeant was justified in stopping defendant to investigate the reason for his lane departure. State v. Hampton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 12, 2019).

Trial court erred by granting defendant's motion to suppress because defendant's seizure was supported by reasonable suspicion, as the informant was a known, citizen informant and the information he provided to police via the 9-1-1 dispatcher could be presumed reliable and the officer corroborated the information provided by the tip. Within one minute of receiving the information about the possibility of a female DUI driver, the officer located the potential vehicle and he confirmed his findings with dispatch. State v. Moore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 574 (Tenn. Crim. App. Aug. 25, 2020).

40. Warrantless Arrest.

The constitutional validity of the search and seizure is wholly dependent upon the legality of the warrantless arrest, which, in turn, must be bottomed upon probable cause. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

In a driving under the influence case, a court erred by failing to suspend defendant's license under the implied consent law, because he was under arrest when he was read the implied consent form; the officers entered defendant's hospital room, both armed and in uniform, they stood between defendant's bed and the door, and although the officers did not take defendant to a detention facility, that fact was not sufficiently significant. State v. Nidiffer, 173 S.W.3d 62, 2004 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 239 (Tenn. Mar. 7, 2005).

In a driving under the influence case, a court erred by failing to suspend defendant's license under the implied consent law because the evidence indicated he was under arrest when he was read the implied consent form; the officers entered defendant's hospital room armed and in uniform, stood between defendant's bed and the door, and the fact that the officers did not take defendant to a detention facility was not sufficiently significant to refute the fact that defendant was under arrest when read the implied consent form. State v. Nidiffer, 173 S.W.3d 62, 2004 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 239 (Tenn. Mar. 7, 2005).

Petitioner failed to present facts establishing that he did not come to the door voluntarily and that he had an expectation of privacy where he was arrested; rather, the police officers arrested petitioner in a public place, and no warrant was required. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

41. —Probable Cause.

Where incriminating evidence was in plain view in the automobile in which defendant was a passenger, and defendant fit the specific description of the robber, there was probable cause to arrest defendant. State v. Goad, 549 S.W.2d 377, 1977 Tenn. LEXIS 598 (Tenn. 1977).

An arrest of a suspect for robbery with a deadly weapon was based upon probable cause where the officer knew defendant before the holdup by seeing him on the streets, received a description of the suspect as having small, slanted, oriental type eyes, and saw the defendant two days later recalling the unusual eyes. Chapple v. State, 528 S.W.2d 62, 1975 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. 1975).

The determination of whether probable cause to arrest exists depends upon whether at that moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Police officer's placement of defendant in a patrol car after defendant's wife was found beaten to death in their bedroom constituted an illegal seizure because, although the officer testified that defendant was not under arrest and was placed in the patrol car for his safety because of the large number of people that had gathered at the scene, defendant was frisked, read his Miranda rights, and placed into the rear of the patrol car, the doors of which could only be opened from the outside. State v. Brock, 327 S.W.3d 645, 2009 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. June 29, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 56 (Tenn. Jan. 25, 2010), cert. denied, Brock v. Tennessee, , 562 U.S. 850, 131 S. Ct. 101, 178 L. Ed. 2d 64, 2010 U.S. LEXIS 5883 (U.S. 2010).

As the trial court, which viewed a videotape of a traffic stop, found that defendant passed all six field sobriety tests the officer administered, it did not err in finding that the officer lacked probable cause to arrest defendant for driving under the influence (T.C.A. § 55-10-401) and properly suppressed the evidence obtained after the arrest. State v. Bell, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. Aug. 31, 2012), rehearing denied, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Oct. 10, 2012), rev'd, 429 S.W.3d 524, 2014 Tenn. LEXIS 121 (Tenn. Feb. 20, 2014).

Citizen informant's description of defendant and of his statement that he shot someone at the parking lot where the victim was killed was sufficient to provide probable cause to arrest him; therefore, the post-arrest statements he made after waiving his Miranda rights were properly admitted at trial. State v. Echols, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Police officers had probable cause to arrest defendant because the officers had sufficient independent information to corroborate codefendant's statement implicating codefendant and defendant in the shooting of the victim. The testimony at the suppression hearing of the case coordinator for the police department confirmed that the police knew all the facts, except the identity of the accomplice, when codefendant gave a statement and codefendant's identification of defendant as the accomplice was suitably credible to endow the police with probable cause to arrest defendant. State v. Bishop, 431 S.W.3d 22, 2014 Tenn. LEXIS 189 (Tenn. Mar. 6, 2014), cert. denied, Bishop v. Tennessee, 190 L. Ed. 2d 92, 135 S. Ct. 120, — U.S. —, 2014 U.S. LEXIS 6666 (U.S. 2014).

Defendant's warrantless arrest was supported by probable cause because at the time of defendant's arrest, the police knew that a citizen informant, who was also an eyewitness to and victim of the crime, as well as a nephew of defendant, had identified defendant as the perpetrator of the homicides and assaults; the murders and assaults were accomplished with weapons found inside the home; and defendant, a close relative of three of the six murder victims and three of the assault victims, had spent time in the home and was familiar with it. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Officer had probable cause to arrest defendant because he smelled a strong odor of intoxicant almost immediately upon talking to defendant, defendant's eyes were glassy and blood-shot, and his speech was slurred and almost unintelligible. State v. Puckett, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1050 (Tenn. Crim. App. Nov. 20, 2014).

Police officer validly arrested defendant for criminal trespass because an exception to the cite and release statute applied, as a reasonable likelihood existed that the offense by defendant would have continued or resumed, with the result that the arresting officer was authorized to arrest defendant for the misdemeanor committed in the officer's presence. State v. Hardin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. June 12, 2015), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 850 (Tenn. Oct. 15, 2015).

Officer was authorized to arrest defendant for noted traffic violations and for driving under the influence, as he saw defendant's vehicle stray from its lane and his eyes were bloodshot and he smelled of alcohol; the officer had probable cause to believe that defendant had been driving under the influence while the officer had observed defendant in one city, and thus the officer was authorized to arrest defendant in another city, and the officer's subjective belief that he was acting as a police officer in one city rather than as a private citizen was immaterial. State v. Wilburn, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Aug. 21, 2015).

Upon investigating papers defendant had abandoned, the officer found them to contain a list of addresses and notes as to whether each address had cars in the driveway, newspapers piled by the door or mailbox, and packages at the door, and dispatch informed the officer that two of the addresses on the list had been burglarized, and thus the officer had probable cause to arrest defendant for burglary. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Police department regularly employed a method of investigatory detentions that was unconstitutional, unless the detention was otherwise supported by probable cause, but it mattered not whether the arresting officers themselves believed that probable cause existed, as the record supported the determined that when defendant was arrested on a 48-hour investigative hold, there existed probable cause to arrest him. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Defendant was not entitled to plain error relief on his claim that his arrest was not supported by probable cause where the record showed that two eyewitnesses described defendant's erratic driving behavior, they told the officers they believed he was intoxicated, an officer observed that defendant appeared to be under the influence because he smelled of alcohol, his speech was slurred, his eyes were bloodshot and watery, and he was unsteady on his feet, and he admitted he was driving his truck at the time of the incident and he had consumed alcohol earlier in the day. State v. Wells, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 919 (Tenn. Crim. App. Nov. 16, 2015).

Trial court erred by granting defendant's motion to suppress because the officer had probable cause to arrest him without a warrant for operating a motor vehicle while under the influence of an intoxicant, even though defendant performed all field sobriety tests successfully. The record indicated that the officer observed defendant's vehicle speeding, when he approached defendant he smelled alcohol, he had bloodshot and watery eyes, and he told the officer he had consumed three beers. State v. Silva, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 158 (Tenn. Crim. App. Mar. 3, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 481 (Tenn. June 23, 2016).Record supported the determination that the sergeant had probable cause to arrest defendant without a warrant and that delays in the interview process were insufficient to overcome the defendant's will; there was no evidence that the defendant's statement was the fruit of an illegal arrest or was not voluntarily and knowingly made, defendant's claim of a violation of his constitutional rights was rejected, and the trial court properly denied defendant's motion to suppress his statement to police. State v. Thomas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 16, 2016).

Law enforcement had probable cause to arrest defendant, and therefore the trial court did not err by denying his motion to suppress, where the cocaine was discovered next to the center console of the vehicle that the driver and passenger shared, the cocaine appeared to be packaged for individual resale, neither occupant claimed ownership of the drugs, and law enforcement could have inferred that defendant was engaged in a common criminal enterprise with the driver and that he and the driver jointly possessed the drugs. State v. Alderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Sept. 29, 2016).

Because probable cause existed for defendant's arrest, the trial court's grant of the motion to suppress was reversed; the confidential informant (CI) had a basis of knowledge, and the independent observations of the investigator, coupled with the information supplied by the CI, gave probable cause for the arrest. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2017).

Officer had probable cause to arrest defendant without a warrant, and the stolen televisions were lawfully recovered in a search incident to arrest, because the officer was aware of the burglary of the victim's vehicle in which the victim saw defendant retrieve his stolen property from nearby bushes, the victim saw defendant's vehicle and noted its license plate, prior to pulling defendant over the officer confirmed that the vehicle defendant was driving was the same as the one observed by the victim, and the officer saw defendant covering up what appeared to be televisions in the backseat of the vehicle. State v. Rembert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 16, 2018).

Police had probable cause to arrest to defendant at the scene of the shooting because after the shooting he returned to the scene and attempt to reenter the crime scene, he left after a confrontation with an officer but returned later, he was identified as the shooter by witnesses who provided his photograph to the police, and there were shotgun shells inside defendant's girlfriend's vehicle. State v. Watison, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. Aug. 30, 2019).

42. —Informants.

The critical issues of the existence of an informer, the extent of the information he furnished the police officer, the credibility of the informer, and the good faith of the police officer go to the heart of the probable cause issue and, therefore, bear directly upon the legality of the arrest and the constitutionality of the searches and seizures. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Defendant was arrested without probable cause, the resulting searches and seizures were constitutionally infirm under U.S. Const. amends. 4 and 14 and under Tenn. Const. art. I, §§ 7 and 8, where there was no proof in the record of the reliability of the informant or the credibility of his information. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

To justify a warrantless arrest based upon the testimony of an informant, he must be reliable and his information must be credible. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Information within police officers' knowledge at time of anonymous informant's telephone call, and later obtained in their investigation of drug sales, provided sufficient corroboration of informant's veracity to give officers probable cause to make warrantless arrest of defendant and seize and search pill bottle found in defendant's pocket. State v. Marshall, 870 S.W.2d 532, 1993 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 29, 1993). But see State v. Smith, 996 S.W.2d 845, 1999 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. 1999).

43. —Detentions.

Although defendants were arrested illegally and subjected to lengthy and illegal incarceration, the casual and spontaneous circumstances under which the defendants made self-incriminating responses to the police officers purge the taint of the illegal arrests and detention. State v. Chandler, 547 S.W.2d 918, 1977 Tenn. LEXIS 571 (Tenn. 1977).

Where the detective had a specific description of the robber which fit defendant, there was sufficient information to stop the car in which defendant was known to be a passenger in order to detain defendant briefly as part of the routine police investigation of the robbery. State v. Goad, 549 S.W.2d 377, 1977 Tenn. LEXIS 598 (Tenn. 1977).

Where the initial intrusion, by a second officer coming to the assistance of the first officer, upon the liberty of this defendant, was based upon the objective fact of the first officer's request for assistance, and that request was based upon a reliable mechanical device and his own experience as he chased the defendant's car at high speeds, the second officer's reliance on the broadcast over official radio frequencies was reasonable. State v. Bryant, 678 S.W.2d 480, 1984 Tenn. Crim. App. LEXIS 2528 (Tenn. Crim. App. 1984).

An officer can conduct investigatory stops of vehicles and order a suspect from a car after a lawful detention. The detention, in these instances, must be brief absent the discovery of any offense within the scope of the limited search. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

If an officer smells alcohol on a defendant and subjects him, as the driver of the vehicle, to a field sobriety test, the fact that the defendant is able to pass the field test and does not appear to be intoxicated does not render the detention unlawful. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

44. Standing.

When neither the area searched nor the articles found were the property of the defendant, nor in his possession, he lacks standing to challenge the validity of a search conducted on the premises. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

Abandonment of premises by tenant, by itself, would not cause tenant's privacy interest to shift automatically to owner like some reversionary property interest for purposes of challenging warrantless searches of the building. State v. Smith, 656 S.W.2d 882, 1983 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1983).

Merely being the owner of the property and maintaining an active effort to collect insurance proceeds on account of the fire did not create a reasonable expectation of privacy in the house for purposes of challenging a warrantless search. State v. Smith, 656 S.W.2d 882, 1983 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1983).

Where the police conduct a warrantless search, the burden is upon the public prosecutor, to show the circumstances met the fourth amendment proscription against unreasonable searches and seizures. Until that has been accomplished to the satisfaction of the hearing judge, the defendant is not required to establish he has standing to object to the search. State v. Harmon, 775 S.W.2d 583, 1989 Tenn. LEXIS 345 (Tenn. 1989), rehearing denied, 775 S.W.2d 583, 1989 Tenn. LEXIS 410 (Tenn. 1989), cert. denied, Harmon v. Tennessee, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed. 2d 1043, 1990 U.S. LEXIS 981 (1990).

Seven factors applicable to the standing inquiry: (1) Property ownership; (2) Defendant's possessory interest in the thing seized; (3) Defendant's possessory interest in the place searched; (4) His right to exclude others from that place; (5) His expectation that the place would remain free from governmental invasion; (6) His precautions to maintain his privacy; and (7) Whether he was legitimately on the premises. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

One who challenges the reasonableness of a search or seizure has the initial burden of establishing a legitimate expectation of privacy in the place where property is searched. One may have a legitimate expectation of privacy even if the property belonged to another. State v. Oody, 823 S.W.2d 554, 1991 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. 1991).

Because defendants did not have a reasonable expectation of privacy in a vehicle that was searched, defendants lacked standing the challenge the search under U.S. Const. amend. 4 and Tenn. Const. art. I, § 7. State v. Cothran, 115 S.W.3d 513, 2003 Tenn. Crim. App. LEXIS 104 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 798 (Tenn. Sept. 2, 2003).

Defendant maintained a reasonable expectation of privacy in a residence at the time of a search and thus had standing to challenge the search warrant, as nothing in the record evinced defendant's intent to abandon the residence at the time a warrant was executed; although not present inside the residence at the time of the search, he had been away for less than 48 hours when the search warrant was executed, and his property was still located in the residence at the time of the search. State v. Davidson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 10, 2015), aff'd, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016).

In a case in which defendant reserved two certified questions of law with regard to the trial court's denial of his motion to suppress evidence obtained during a warrantless search of a residence, defendant was without standing to complain about the search because, when defendant spoke to a detective, he replied he could not give permission to search as it was not his residence; by disclaiming his interest in the residence, defendant effectively gave the authorities the green light to proceed insofar as his own Fourth Amendment rights were concerned; and the fact that the detective initially chose to conduct a knock and talk at the residence did not negate defendant's subsequent disclaimer of his interest in the property. State v. Sutton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 421 (Tenn. Crim. App. May 19, 2017).Defendant lacked standing to challenge the journal's entry, given that he did not own the journal seized, he did not have a possessory interest in the journal, he had no possessory interest in the place searched, he had taken no precautions to maintain his privacy at that place, and he was not even on the premises at the time the journal was taken. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

45. Exigent Circumstances.

Undisputed facts clearly established exigent circumstances justifying officers' warrantless entry into defendants' hotel room where officers knew that an actively operating methamphetamine lab posed a serious danger to the persons in the room and to all persons in the immediate vicinity; distinct odor surrounding the room, intensity and strength of the odor, fumes emanating from the room, and effects of the fumes of the inhabitants of the next room proved the officers with enough facts to believe that defendants were manufacturing methamphetamine. State v. Meeks, 262 S.W.3d 710, 2008 Tenn. LEXIS 575 (Tenn. Sept. 2, 2008).

In a case where police arrived on the scene of a three-car accident to find defendant lying under a tree, the state trooper had probable cause to suspect that the defendant caused the accident while under the influence of alcohol; exigent circumstances existed which precluded the police from obtaining a warrant before taking a sample of defendant's blood because a magistrate was not available in the evening and police needed to obtain a blood sample from the defendant before the alcohol metabolized, and thus defendant's rights under Tenn. Const. art. I, § 7 were not violated by the warrantless blood draw. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Police officers' entry into a murder victim's home was an exigent circumstance because the victim's father telephoned the 911 operator to summon help to the victim's home. When defendant admitted that his killed his wife in the home, his father-in-law's 911 call gave the officers a reasonable belief that a person inside the home was in need of immediate aid; subsequent entries by additional law enforcement personnel were lawful because they were closely connected in time to the initial entry. State v. Brock, 327 S.W.3d 645, 2009 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. June 29, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 56 (Tenn. Jan. 25, 2010), cert. denied, Brock v. Tennessee, , 562 U.S. 850, 131 S. Ct. 101, 178 L. Ed. 2d 64, 2010 U.S. LEXIS 5883 (U.S. 2010).

Although defendant was correct that the police, due to their surveillance dispositions, did not witness any suspect fleeing or destroying evidence, they had, only minutes before the search, intercepted a compelling telephone call between defendant and another individual who advised defendant that his visitors should jump the fence and keep on going; this comment justifiably caused an officer's concern that the suspects would flee and, because it indicated that the suspects had a reason to flee, tended to establish the presence of a drug shipment that might be destroyed. Further, the task force did not create the exigency. State v. Moore, 309 S.W.3d 512, 2009 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 191 (Tenn. Feb. 22, 2010), cert. denied, Moore v. Tennessee, 562 U.S. 919, 131 S. Ct. 290, 178 L. Ed. 2d 190, 2010 U.S. LEXIS 7450 (U.S. 2010).

While the trial court allowed the state to present an offer of proof with regard to probable cause and exigent circumstances, pursuant to U.S. Const. amend. IV and Tenn. Const. art. I, § 7, it should have considered the state's alternative theory to determine if a search was a valid as a warrantless search. State v. Alberts, 354 S.W.3d 320, 2011 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. June 21, 2011).

Because the officer did not smell the methamphetamine until he had already entered the curtilage and walked onto the rear deck of the residence, the officer created the exigency and such was not a basis for a warrantless search State v. Womack, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 5, 2014), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 363 (Tenn. Apr. 21, 2015).

Defendant's motion to suppress was properly denied because exigent circumstances justified the warrantless entry into defendant's residence as the investigators smelled methamphetamine as they approached the residence, and they testified about the dangers of unattended active labs. State v. Christensen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 14, 2015), aff'd, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017).

Evidence did not preponderate against the finding that the agent smelled the odor of methamphetamine emanating from defendant's residence, the agent had significant experience in the area of hazardous materials including methamphetamine, and the number of residences close to defendant's gave the agent additional cause to quickly dismantle the methamphetamine lab; the trial court did not err in finding that the agent had probable cause to enter the residence without a search warrant pursuant to the exigent circumstances exception. State v. Meadows, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 211 (Tenn. Mar. 22, 2016).

Trial court did not err by denying defendant's motion to suppress evidence seized after the officer seized defendant because the officer's actions were justified under the community caretaking doctrine, given that defendant was asleep in the running vehicle. State v. Conkin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Sept. 7, 2016).

Exclusionary rule did not require suppression of evidence derived from testing of defendant's blood following a traffic stop because, although defendant did not actually or impliedly consent to the blood draw as police officers informed defendant that officers would hold defendant down and take a blood sample by force if defendant refused to consent, the officers obtained a blood sample without a warrant in objectively reasonable good-faith reliance on binding precedent at the time of blood alcohol dissipation being an exigent circumstance. State v. Carter, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. Apr. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 871 (Tenn. Dec. 6, 2017).

Defendant's wounds from his attempted suicide was sufficient to create exigent circumstances justifying the officers' warrantless entry into his apartment for the limited purpose of securing the scene and rendering aid; defendant did not specify what items of evidence he challenged, and the issue was waived under T.R.A.P. 36, plus items found were clearly in plain view when the officers entered and thus were within the scope of the exigent circumstances search. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 368 (Tenn. Crim. App. May 11, 2017).

Although probable cause supported a search of defendant during a traffic stop when the credited testimony of police investigators reflected that they smelled marijuana coming from defendant, defendant was entitled to suppress the marijuana found upon defendant's person in a warrantless search because the State of Tennessee failed to prove the existence of exigent circumstances as the risk of defendant escaping or destroying evidence before a warrant could have been obtained was very low, if not non-existent. State v. Morgan, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. July 25, 2019).

46. Extent of Officers' Authority.

When there is an intent to make a search and a seizure, no officer may, under the provisions of Tenn. Const. art. I, § 7, make any search of the person or effects or properties of a citizen except a search of the persons following a lawful arrest, unless he have a valid search warrant. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

Officers of highway patrol are authorized to require drivers to exhibit their licenses, but such authority cannot be used merely as a pretext in order to spy on contents of car. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

Courts have recognized three types of police-citizen interactions: (1) A full scale arrest which must be supported by probable cause; (2) A brief investigatory detention which must be supported by reasonable suspicion; and (3) Brief police-citizen encounters which require no objective justification. State v. Daniel, 12 S.W.3d 420, 2000 Tenn. LEXIS 52 (Tenn. 2000).

Officer's warrantless entry into the home of a deaf suspect, who was asleep, awakening the suspect by tapping the suspect on the shoulder, and giving the suspect a written note asking the suspect to accompany the officer, violated the suspect's Tenn. Const. art. I, § 7 rights, because the officer showed no exigent circumstances preventing the officer from obtaining a warrant or waiting until the suspect awoke and seeking consent to enter the home. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

As there was no basis for a police officer to have defendant exit his vehicle or to perform a search of the vehicle after it was lawfully stopped where the officer's paperwork was already completed at the time, drugs seized from the vehicle were properly suppressed under U.S. Const. amend. IV and Tenn. Const. art. I, § 7. State v. Donaldson, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 717 (Tenn. Crim. App. Sept. 15, 2011), rev'd, 380 S.W.3d 86, 2012 Tenn. LEXIS 582 (Tenn. Aug. 24, 2012).

Based upon the temporal proximity of defendant's illegal detention and defendant's statement, the lack of any intervening factors to mitigate the taint of the illegal arrest, and the flagrancy and purpose of the officers' illegal conduct, the court erred by failing to suppress defendant's statement. Officers admitted seizing defendant with less than probable cause because they believed it permissible to do so as long as they did not detain him longer than 48 hours; the unconstitutional 48-hour hold utilized was the product of a police policy, condemned in the past. State v. Bishop, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 14, 2012), rev'd, 431 S.W.3d 22, 2014 Tenn. LEXIS 189 (Tenn. Mar. 6, 2014).

Tennessee Supreme Court agrees with the overwhelming majority of jurisdictions that signs admonishing “No Trespassing,” in and of themselves, are rarely going to be sufficient to revoke the implied license allowing persons to approach a front door and knock; the sign is simply making explicit that persons entering onto another's land must have a legitimate reason or risk being held liable for trespass, and a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several “No Trespassing” signs. State v. Christensen, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017), cert. denied, Christensen v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 662 (U.S. Jan. 16, 2018).

Defendant's “No Trespassing” signs posted near his unobstructed driveway were not sufficient to revoke the implied license of the investigators to approach his front door and knock. State v. Christensen, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017), cert. denied, Christensen v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 662 (U.S. Jan. 16, 2018).

47. Discovery.

Since the federal and state constitutions do not prohibit an otherwise lawful physical or mental examination during discovery proceedings, it follows that they do not protect a defendant's financial condition from discovery. Breault v. Friedli, 610 S.W.2d 134, 1980 Tenn. App. LEXIS 391 (Tenn. Ct. App. 1980).

48. Waiver of Rights.

A defendant may waive his rights relative to searches and seizures under the constitutions of Tennessee and the United States. Simmons v. State, 210 Tenn. 443, 360 S.W.2d 10, 1962 Tenn. LEXIS 305 (1962); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977); Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

Where defendant offered evidence to explain condition of coat allegedly worn on night of robbery he waived right to contend coat was obtained by unlawful search and seizure. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, 1965 Tenn. LEXIS 606 (1965), cert. denied, Lester v. Tennessee, 383 U.S. 952, 86 S. Ct. 1214, 16 L. Ed. 2d 214, 1966 U.S. LEXIS 2090 (1966).

Where defendant's wife invited police officers into house and upon being informed of purpose of visit voluntarily gave officers requested information and turned over defendant's coat which was allegedly worn on night of robbery to the officers, wife waived any right of defendant to prohibitions against search and seizure without warrant. Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, 1965 Tenn. LEXIS 606 (1965), cert. denied, Lester v. Tennessee, 383 U.S. 952, 86 S. Ct. 1214, 16 L. Ed. 2d 214, 1966 U.S. LEXIS 2090 (1966).

Where a defendant charged with possession of heroin for resale denied ownership, possession or any interest in narcotics seized in his rented motel room under a search warrant, he waived any valid objection to the admission of the evidence obtained in the search. Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1974), superseded by statute as stated in, State v. Little, 560 S.W.2d 403, 1978 Tenn. LEXIS 568 (Tenn. 1978).

Where defendant denied any connection with an automobile he lacked standing to object to a search of such automobile even though he was the true owner of the automobile. Miller v. State, 520 S.W.2d 729, 1975 Tenn. LEXIS 704 (Tenn. 1975), cert. denied, Miller v. Tennessee, 423 U.S. 849, 96 S. Ct. 91, 46 L. Ed. 2d 72, 1975 U.S. LEXIS 2575 (1975).

49. —Failure to Object.

It would have been manifestly unjust to apply the rule that failure to object, upon trial, to the legality of an arrest waives the right to rely upon it on appeal where the defendant, in advance of trial, fairly apprised the trial court of the substance of his objection to testimony involved and where on motion for a new trial the court was again apprised of the defendant's contentions. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Generally, a failure to object, upon trial, to the legality of an arrest, waives the right to rely upon it on appeal. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

Where officers, during search of premises under a valid search warrant, discovered other property which they knew to have been stolen although not listed in the search warrant, the evidence of such findings could be shown in a trial for the theft of such items. Gerchman v. State, 206 Tenn. 109, 332 S.W.2d 182, 1960 Tenn. LEXIS 349 (1960); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where defendant was arrested for driving while intoxicated, and after arrest his car was searched for intoxicating liquor, and in the process of such search tools were found which connected him with burglary, such tools were found during a legal search and properly admissible as evidence. Church v. State, 206 Tenn. 336, 333 S.W.2d 799, 1960 Tenn. LEXIS 370 (1960); Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Evidence obtained as result of illegal search of automobile was not admissible against defendant who was owner and possessor of automobile but was admissible of his codefendant. Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, 1964 Tenn. LEXIS 523 (1964), cert. denied, Thomerson v. Tennessee, 380 U.S. 933, 85 S. Ct. 938, 13 L. Ed. 2d 820, 1965 U.S. LEXIS 1692 (1965).

The question of whether there has been a waiver of constitutional protection against unreasonable search and a consent to such search is one for the trial judge in the first instance. Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

Where trial judge passed on validity of search as a preliminary question out of presence of jury there was not error in action of judge in also submitting the question to the jury. Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254, 1964 Tenn. LEXIS 491 (1964), cert. denied, Shafer v. Tennessee, 379 U.S. 979, 85 S. Ct. 683, 13 L. Ed. 2d 570, 1965 U.S. LEXIS 2159 (1965), overruled in part, State v. Pursley, 550 S.W.2d 949, 1977 Tenn. LEXIS 541, 1977 Tenn. LEXIS 542 (Tenn. Apr. 11, 1977).

50. Admissibility of Evidence.

Where agents or officers of the state procure evidence against the accused by an unreasonable search and seizure, contrary to Tenn. Const. art. I, § 7, the state will not be permitted, in a prosecution of the accused, to use such evidence against him. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

The provisions of the federal and state constitutions against unreasonable searches and seizures protect the citizens only against action by the federal or state governmental agencies, respectively, and do not make inadmissible evidence unlawfully obtained from the accused by private individuals. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Highway patrolmen who were dressed in uniforms, armed with pistols and axes and who were proceeding with what they conceived to be their duty as officers and agents of the state under instructions from the governor were acting in their official capacity and not as individuals so that evidence procured without a search warrant during a raid on a private club was inadmissible under Tenn. Const. art. I, § 7 as against the operators upon trial for operating a gaming house. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 1940 Tenn. LEXIS 78 (1940).

Where highway patrolman's claim that stoppage of defendant's car was for the purpose of learning whether he had a driver's license or registration receipt was a subterfuge, objection was properly made to his testimony on the ground that his stopping of the automobile and arrest of its occupants were unlawful and his testimony therefore was inadmissible. Smith v. State, 182 Tenn. 158, 184 S.W.2d 390, 1945 Tenn. LEXIS 206 (1945).

Assuming, that the seizure and detention of the articles taken from defendant amounted to a violation of his constitutional rights, U.S. Const. amend. 4 does not require suppression of evidence initially taken by illegal means where there is a subsequent independent source for its admission, untainted by the initial illegality. State v. Harmon, 775 S.W.2d 583, 1989 Tenn. LEXIS 345 (Tenn. 1989), rehearing denied, 775 S.W.2d 583, 1989 Tenn. LEXIS 410 (Tenn. 1989), cert. denied, Harmon v. Tennessee, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed. 2d 1043, 1990 U.S. LEXIS 981 (1990).

The defendant had no expectation of privacy with respect to marijuana she threw out of a car window while being pursued by the police; since the marijuana had been abandoned by the defendant before she was stopped, it was not the fruit of an illegal seizure. State v. Baker, 966 S.W.2d 429, 1997 Tenn. Crim. App. LEXIS 1103 (Tenn. Crim. App. 1997).

Deaf murder defendant's confession obtained after a violation of Tenn. Const. art. I, § 7 rights was not subject to suppression because the police had probable cause to arrest the defendant. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

In a minor in possession of alcohol case, a court erred by granting defendant's motion to suppress because the housing authority checkpoint where he was stopped was constitutional since the housing authority's mission was to provide safe housing for its residents, the purpose of the entry checkpoints was to provide a measure of security for those who lived within the development, the identification checkpoint was an efficient means of determining that persons entering the housing development were residents or visitors with a legitimate business or social reason for being there, and the intended level of intrusion to motorists or pedestrians was minimal. State v. Hayes, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 997 (Tenn. Crim. App. Nov. 9, 2004), rev'd, 188 S.W.3d 505, 2006 Tenn. LEXIS 312 (Tenn. Apr. 20, 2006).

Because a student was not subjected to a custodial interrogation and his statements were admissible, any evidence obtained therefrom was not fruit of the poisonous tree; moreover, the marijuana was found not as a result of any statements made by the student, but as a result of the appearance of and statements made by another person, and none of the student's incriminating statements were made until after the deputy found the marijuana. R.D.S. v. State, 245 S.W.3d 356, 2008 Tenn. LEXIS 28 (Tenn. Feb. 6, 2008).

Defendant's right against unreasonable search and seizures was not violated when she was compelled to give fingerprint and handwriting samples because the constitutional protections did not apply to compelled production of physical characteristics that are repeatedly exposed to the public. State v. Brown, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 20, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 648 (Tenn. Sept. 28, 2009), dismissed, Brown v. Freeman, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 150493 (M.D. Tenn. Oct. 28, 2016).

Defendant's conviction for first-degree felony murder committed during the perpetration of robbery was proper because, although the trial court should have suppressed defendant's confession to an investigator, the trial court's error was harmless under T.R.A.P. 36(a) because it was cumulative to an inmate's testimony and did not change the outcome of the trial. Additionally, the evidence showed that defendant voluntarily waived his Miranda rights. State v. Echols, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 14, 2011), aff'd, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Trial court did not err in denying defendant's motion to suppress a statement made to police detectives at a police station because, although defendant had been developed as a suspect in a shooting incident, defendant arrived at the homicide bureau voluntarily with his mother at approximately 1:30 p.m., was advised of defendant's Miranda rights, and voluntarily gave the statement several hours later after being advised that defendant's alibi witness was not able to confirm defendant's alibi. State v. Brown, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Sept. 5, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 83 (Tenn. Jan. 15, 2015).

Denial of defendant's motion to suppress was improper because the warrantless use of the GPS device constituted an illegal search, and the evidence obtained, including the arrest and statements to police. The use of the device was a search, the good faith exception did not apply, and defendant's confession was not sufficiently attenuated from the illegal search. State v. Phifer, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 903 (Tenn. Crim. App. Sept. 23, 2014).

Evidence from defendant's cell phone was admissible, as the seizure proper, having occurred at the time of defendant's arrest and the contents were not searched until a warrant was obtained. State v. Wade, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. July 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 689 (Tenn. Nov. 15, 2018).

Denial of defendant's motion to suppress defendant's statement to the police was appropriate because a police officer had probable cause to arrest defendant as the officer went to a rape crisis center to speak with the minor victim soon after the alleged sex crimes, interviewed the victim's parent, reviewed the nurse examiner's report, and observed the victim's interview with a forensic interviewer. Further, the victim consistently told both the examiner and the interviewer that defendant had sexual contact with the victim. State v. Gonzales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 783 (Tenn. Crim. App. Oct. 18, 2018).

51. Exclusionary Rule.

Supreme Court of Tennessee has decided that the “legitimate independent motivation” test recognized in State v. Burroughs should be confined to unreasonable search and seizure claims based on the Fourth Amendment or this section. In cases that involve suspects making confessions to friends, relatives, and other associates, the law need not be concerned with whether that confidant could properly be labeled as a private citizen or an agent of the State. State v. Sanders, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

Defendant's statement made on the return to the jail was a spontaneous utterance and the inculpatory statements that followed during further interrogation were made voluntarily with full Miranda warnings; the evidence obtained, the search of the apartment, defendant's spontaneous statements and offer of further discussion, and the voluntariness of the statements established intervening circumstances sufficient to purge the primary taint of the initial illegal detention. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Even if a warrantless blood draw performed at a hospital following an auto accident violated defendant's federal and state constitutional right to be free from unreasonable searches and seizures, pursuant to a good-faith exception to the exclusionary rule, any evidence derived from testing defendant's blood did not have to be suppressed because the blood draw was obtained in objectively reasonable good-faith reliance on binding precedent. State v. Reynolds, 504 S.W.3d 283, 2016 Tenn. LEXIS 821 (Tenn. Nov. 3, 2016).

51.5 —Good Faith Exception.

Officer's actions in obtaining defendant's blood without a warrant was in objectively reasonable good faith reliance on Tennessee's broad interpretation of Schmerber v. California, which specifically authorized that police practice, and the good-faith exception adopted in State v. Reynolds applied and the trial court's suppression of defendant's test results was not required. State v. Brown, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 995 (Tenn. Crim. App. Dec. 1, 2017).

Neither of defendant's warrantless arrests for trespassing on housing authority property fell within the good faith exception to the exclusionary rule, and therefore the trial court did not err by suppressing marijuana found on defendant when he was arrested, because the record was devoid of any evidence that the error was a result of a good-faith mistake, as defendant's name was mistakenly on the list of persons who were banned from housing authority property, and the error was not caught until after defendant had been arrested twice and met with a lieutenant to point out the error. State v. McElrath, — S.W.3d —, 2019 Tenn. LEXIS 100 (Tenn. Mar. 12, 2019).

Tennessee Supreme Court adopted the good-faith exception to the exclusionary rule set forth in Herring and held that when police mistakes are the result of negligence rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its” way. State v. McElrath, — S.W.3d —, 2019 Tenn. LEXIS 100 (Tenn. Mar. 12, 2019).

52. —Inevitable Discovery.

Inevitable discovery doctrine did not apply where: (1) Defendant was subjected to an improper stop and frisk; (2) A revolver was found on defendant's person; and (3) The officers did not become aware of defendant's intoxication, which would have made defendant's carrying of the gun unlawful under T.C.A. § 39-17-1321(a), until after the frisk. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Even if there was no probable cause for defendant's arrest, the items located in his pocket would have been inevitably discovered after his companion gave written consent to search the vehicle in which defendant was riding. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 14, 2017).

53. Duty of Trial Court.

Determination of legality of arrest and seizure is a mixed question of law and fact for the trial judge, and his refusal to hear evidence to rebut officer's testimony is reversible error. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

The court will not permit an evasion of the requirements of the law with regard to search warrants through the device, pretext, or subterfuge of a pretended examination of a driver's license. Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, 1947 Tenn. LEXIS 377 (1947).

The trial judge's finding of probable cause to make an arrest is to be given the weight of a jury verdict and is conclusive in this court unless the evidence preponderates against this finding. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Although it is better to move to suppress testimony regarding the legality of an arrest or to object to the testimony when offered at trial, the supreme court cannot say that the illegality of an arrest and an ensuing search may not be asserted by appropriate motions made in advance of trial. The test must be whether the issue was fairly raised, or phrasing it another way, whether the trial judge was fairly apprised of petitioner's objection or given a reasonable opportunity to consider the matter. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

When a question as to the reliability and credibility of an informant or his information is fairly raised, it is incumbent upon the trial judge to conduct an evidentiary hearing for the purpose of satisfying himself not only that the informant was reliable but that the law enforcement officer was justified in accepting and acting upon the information so conveyed. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

The privilege to withhold disclosure of the identity of an informant must yield and the identity of the informant must be disclosed when his identity or the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause or when the informant is a participant in the crime; or when he has knowledge favorable to an accused. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

In granting defendant's motion to suppress evidence seized as a result of a traffic stop after concluding that alleged brake light offense did not support the stop, the trial court erred by not considering the State's alternative theory attempting to establish that the stop was supported by reasonable suspicion of a seatbelt violation because the deputy testified that when he first encountered defendant it appeared that he was not wearing a seatbelt, the possible seatbelt offense was the only reason why he initially became interested in defendant, and that he absolutely would have stopped defendant regardless of the non-functioning brake light to see if defendant was in fact wearing his seatbelt. State v. Sherrill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 27, 2020).

54. Appellate Review.

Based on the facts and issue presented on appeal, the Tennessee supreme court held that when a trial court's findings of fact at a suppression hearing are based on evidence that does not involve issues of credibility, a reviewing court must examine the record de novo without a presumption of correctness; however, the court expressly reserved comment on the issue of the proper standard of appellate review of a videotaped trial record until that issue is squarely presented. State v. Binette, 33 S.W.3d 215, 2000 Tenn. LEXIS 605 (Tenn. 2000).

Where defendants reserved identical certified questions of law as to whether the search warrant and accompanying affidavit issued for their home violated the United States and Tennessee constitutions, as well as Tenn. R. Crim. P. 41(c), the appellate court could not consider defendants' claims on appeal, because the search warrant was not introduced as evidence at the suppression hearing; therefore, it was not properly made a part of the record on appeal. State v. Bobadilla, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 589 (Tenn. Crim. App. July 6, 2004), rev'd, 181 S.W.3d 641, 2005 Tenn. LEXIS 1043 (Tenn. 2005).

Because the affidavit was not part of the record and because defendant included no argument regarding the validity of the search warrant, any challenge to the search conducted pursuant to the search warrant was waived. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

Because the search pursuant to the search warrant was not under review, defendant did not demonstrated that he was entitled to the suppression of the evidence; the results of the search pursuant to the subsequently obtained warrant were not challenged on appeal. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 15, 2019).

55. Reasonable Suspicion.

Trooper had reasonable suspicion to initiate a traffic stop after observing what the trooper believed to be a broken taillight on defendant's automobile; the automobile was being operated with a broken taillight that had been repaired with taillight repair tape that was itself in disrepair, in violation of T.C.A. § 55-9-402(b)(1), (2), (c). State v. Brotherton, 323 S.W.3d 866, 2010 Tenn. LEXIS 878 (Tenn. Sept. 27, 2010).

Suppression of evidence was inappropriate because a police detective had reasonable suspicion, supported by specific and articulable facts, to conduct an investigatory stop of a vehicle in which defendant was a passenger. The detective received a dispatch concerning a carjacking which occurred the night before; the dispatch provided information concerning the stolen vehicle as well of a general description of the suspects based on the victim's statement; a vehicle with the same license tag number as provided in the dispatch was found soon thereafter, and the victim identified the vehicle as the victim's vehicle; a short time later, the detective observed a white vehicle with two male African-American occupants meeting the general description provided in the dispatch begin to turn into the parking lot in which the victim's vehicle was parked; the detective noticed the startled expression on the passenger's face; and the driver of the vehicle abruptly turned the vehicle to avoid the detective. State v. Davis, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. Aug. 19, 2010), aff'd, 354 S.W.3d 718, 2011 Tenn. LEXIS 962 (Tenn. Oct. 17, 2011).

Defendant's convictions for aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, and attempt to commit first degree murder were appropriate because reasonable suspicion existed to permit the officers to conduct a brief investigatory stop of the car in which defendant was a passenger. In pat, making a turn when noticing a police presence often meant that they did not want the police to take notice of them; moreover, the vehicle and occupants met the general description of the suspects provided in a BOLO dispatch. State v. Davis, 354 S.W.3d 718, 2011 Tenn. LEXIS 962 (Tenn. Oct. 17, 2011).

Officer had reasonable suspicion based on specific and articulable facts to initiate an investigatory stop of defendant based on his personal observation of defendant exiting the parking lot of a bar and then crossing the fog line twice and crossing into the opposing lane of traffic in a two-lane highway. State v. Watson, 354 S.W.3d 324, 2011 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. June 8, 2011).

Unidentified bystander who informed an officer that defendant was carrying a gun did not sufficiently corroborate an anonymous tip as the bystander did not provide any information to show that defendant's possession of a handgun was unlawful. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Anonymous tip to the police did not provide reasonable suspicion for defendant's stop and frisk where: (1) The unidentified 911 caller's complaint contained only an allegation that an armed individual was outside a particular room at the motel; (2) There was no description of the suspect, or predictive information that would have allowed the police to test the informant's knowledge or credibility; (3) The only link between the tip and defendant was his proximity to the room; and (4) There were no articulable facts indicating that defendant unlawfully possessed a gun. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Trial court properly denied defendant's motion to suppress as the stop of defendant's vehicle was based on reasonable suspicion and the evidence obtained during the stop was not obtained in violation of Tenn. Const. art. I, § 7, in that, during a traffic stop of the vehicle because of a broken taillight, officers smelled marijuana coming from the vehicle, observed a partially smoked marijuana cigarette and digital scales inside the vehicle, and found a large amount of cash in another defendant's shoe. Moreover, based on the officer's observations, the story given by defendants as to their planned destination was false. State v. Long, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 642 (Tenn. Crim. App. Aug. 22, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 55 (Tenn. Jan. 10, 2013), appeal denied, State v. Williams, — S.W.3d —, 2016 Tenn. LEXIS 492 (Tenn. June 23, 2016).

Officer's credibility as to his testimony that the database sent him incorrect information was not attacked, there was no independent proof that what was contained on the database was inconsistent with his testimony, and there was no evidence of database errors that tended to show the information was not reliable; the degree of reliability of the source of the information possessed by the officer was sufficient to support reasonable suspicion that defendant was committing a violation of the law regarding vehicle registration tags, and the stop was therefore not in violation of the constitutions. State v. Meadows, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 10, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 863 (Tenn. Nov. 17, 2016).

Police officers had reasonable suspicion to detain defendant and his friend for further investigation because, inter alia, an officer knew that a robbery involving a weapon had just been committed, the friend's physical description and clothing matched that of the robber, and defendant and his friend were in close proximity to the scene of the robbery and a stolen item. State v. Sykes, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 25, 2015).

Trial court did not abuse its discretion by denying defendant's motion to suppress because a police officer had reasonable suspicion supported by specific and articulable facts that the windshield tint in the car defendant was driving exceeded the legal limit. State v. McNair, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 431 (Tenn. May 15, 2015).

When the sergeant noticed the open container of beer and the smell of alcohol on defendant, he had reasonable suspicion to ask defendant to get out and perform field sobriety tests, and the trial court properly denied defendant's motion to suppress. State v. McCormick, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 2, 2015).

Officer had a duty to investigate the domestic assault, and when defendant refused to cooperate, the officer had a reasonable suspicion of wrongdoing that justified an investigative detention, and the totality of the information possessed by the officer justified the seizure of defendant so that the officer could investigate possible criminal activity; defendant withdrew his wrist, made a fist, and then struggled to avoid having his hands cuffed, and the evidence was sufficient to support defendant's conviction for resisting arrest. State v. Parvin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. May 6, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 666 (Tenn. Aug. 13, 2015).

Officer was unable to articulate a reason for seizing defendant, whose car was parked legally on private property and no traffic infraction had been committed; while a situation where someone is in a parked car turned off but with a turn signal activated might lead an officer to wonder if the occupants of the car might need help, and thus could authorize an officer's community caretaking role, it does not without more provide reasonable suspicion necessary to authorize a seizure, and because the officer lacked reasonable suspicion to seize defendant, all evidence obtained attendant to the seizure should have been suppressed. State v. Latham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 3, 2015).

Trial court erred in denying defendant's motion to suppress evidence found during a search of her house. The State failed to elicit testimony from officers about any facts upon which they formed a reasonable suspicion that a codefendant had engaged or was engaging in criminal activity justifying a search of the house. State v. Carman-Thacker, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. Sept. 8, 2015).

In a driving under the influence case, the observations of an officer did not give rise to reasonable suspicion to justify the stop of defendant's vehicle in the context of the United States and Tennessee Constitutions; defendant's vehicle did not cross any dividing lines, and his weaving was not pronounced or exaggerated. State v. Seagraves, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 888 (Tenn. Crim. App. Nov. 5, 2015).

Trooper had reasonable suspicion for a traffic stop of defendant's vehicle, as the trooper saw the vehicle drift within its lane, change lanes in front of another vehicle without signaling, and cross half-way over the fog line marking the outer right lane boundary of the interstate, well in advance of the exit ramp, plus defendant continued to drive up the exit ramp over the fog line; there was nothing that might have necessitated defendant leaving his lane of travel, and these facts gave the trooper a sufficient basis to suspect at least that defendant was violating the statute. State v. Samples, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 16, 2016).

Defendant's motion to suppress was properly denied as the officer had reasonable suspicion to initiate the traffic stop in order to further investigate defendant's activity because the officer testified that he saw defendant driving without headlights on at 3:00 a.m., at a time when the bars in the area closed for the night; and he followed defendant for about 50 feet, during which she still failed to turn on her headlights, in violation of the traffic laws. State v. Sowell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 731 (Tenn. Crim. App. Sept. 21, 2016).

There was no reasonable suspicion to support the search and defendant two's probation agreement did not provide the sweeping consent that the State contended it did; the officer never knew about defendant two's probation status at any point before or during the search, nothing showed that the officers had any suspicion that defendant two was engaging in criminal activity, and the trial court correctly suppressed the evidence. State v. Stanfield, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Mar. 31, 2017).

Trial court properly denied defendant's motion to suppress, given that the totality of the circumstances supported reasonable suspicion to conduct an investigatory stop; the truck matched the description of the vehicle subject to the be on the lookout alert (BOLO), the truck was near where the BOLO said it would be, the officer viewed the truck within minutes of receiving the BOLO, and a robbery had recently occurred. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Defendant's motion to suppress was properly denied as her observed infraction of crossing over into the turning lane as she proceeded around the bend in the road provided the officer with the reasonable suspicion necessary to stop her vehicle because, although it was not entirely clear on the video recording whether defendant's vehicle crossed over the lane-dividing line, the officer, whose testimony the trial court credited, specifically identified in the video recording where he determined a traffic violation had occurred; nothing in the video contradicted his observation or testimony; and the video recording corroborated the officer's testimony that defendant was also speeding and later crossed a lane-dividing line with her vehicle. State v. Sanford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 963 (Tenn. Crim. App. Nov. 14, 2017).

Stop of defendant's vehicle was supported by reasonable suspicion. Because there was no initial taint of unconstitutional police conduct, the fruit of the poisonous tree doctrine did not apply. State v. Myrick, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. July 16, 2018).

Deputy had reasonable suspicion of criminal activity for the dog sniff based on his mistaken belief that defendant could not have driven from Knoxville in just two hours, he properly considered defendant's excessive speed, and defendant was nervous. State v. Eliazar, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. Aug. 29, 2018).

Warrantless seizure of defendant was justified by reasonable suspicion and the trial court did not err in denying defendant's motion to suppress; defendant's act of backing his car out of the parking space after the deputy told him to stop, viewed with the anonymous caller's reliable reports of his reckless driving and the contemporaneous identification of his vehicle, was a sufficiently unusual circumstance to arouse the officer's suspicion that defendant was engaged in criminal activity. State v. Crepack, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Oct. 12, 2018).

Stop of defendant was constitutionally permissible, and defendant's motion to dismiss was properly denied because an officer had probable cause to stop defendant based on his observation that defendant did not have two “red” taillights and two “red” stoplights on the rear of the vehicle, and that defendant's right taillight was not in good condition and operational in violation of a traffic law; and, although an attempt to repair the broken taillight was made with taillight repair tape, that repair failed to allow for sufficient illumination, which provided the officer with an articulable and reasonable suspicion that defendant's taillight violated a traffic law. State v. Rivera, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 481 (Tenn. Crim. App. July 15, 2020).

56. Expectation of Privacy.

Investigator's actions in looking at the jewelry seized by an officer after he arrested and booked defendant did not violate any actual, subjective expectation of privacy held by defendant, and a warrant was not required to examine the jewelry after it had been placed in the county jail's property room. State v. Morris, 469 S.W.3d 577, 2014 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. May 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 838 (Tenn. Oct. 15, 2014).

Defendant's motion to suppress a bag of crack cocaine which a police officer found lying in the grass near where defendant had made a throwing motion when the officer approached defendant in a housing project parking lot was properly denied because defendant was without standing to challenge the actions of the officer as defendant did not have a reasonable expectation of privacy in the parking lot of the housing project. State v. McAlpin, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 923 (Tenn. Crim. App. Oct. 2, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 53 (Tenn. Jan. 16, 2015).

The deputies violated the mandates of the Fourth Amendment and Tenn. Const. art. I, § 7, when they intruded upon the back yard of defendant's home, which was not an area open to the general public. State v. Womack, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 5, 2014), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 363 (Tenn. Apr. 21, 2015).

Defendant's motion to suppress was properly denied because the small no trespassing sign posted in a field next to defendant's driveway was not sufficient to revoke the implied invitation of the front door, and the investigators could approach defendant's front door to talk to him. State v. Christensen, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 357 (Tenn. Crim. App. May 14, 2015), aff'd, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017).

Trial counsel was not ineffective for failing to challenge a search warrant because defendant did not present any evidence that he had a reasonable expectation of privacy in the room that was searched in his mother's house; the proof at trial showed that defendant sometimes visited his mother's house but had only spent one night there more than a month before the search, and he did not have a key to the house and had been prohibited by his mother from entering the house without a key.[ State v. Cox, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 803 (Tenn. Oct. 17, 2016).

Even if defendant had an actual, subjective expectation that his “No Trespassing” signs would keep all persons from entering his property, a reasonable member of society would view the signs as simply forbidding any unauthorized or illegitimate entry; defendant failed to demonstrate that he had a reasonable expectation that ordinary citizens would not occasionally enter his property and approach his front door to talk with him, and the investigators did not violate his federal or state constitutional rights when they drove up his driveway and approached his front door. State v. Christensen, 517 S.W.3d 60, 2017 Tenn. LEXIS 195 (Tenn. Apr. 7, 2017), cert. denied, Christensen v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 662 (U.S. Jan. 16, 2018).

Record supported a conclusion that defendant did not affirmatively and expressly disclaim or relinquish his privacy interest in his girlfriend's home, even though defendant said he did not live there. Because defendant did not disclaim his privacy interest in his girlfriend's home, and because the parties did not challenge the trial court's determinations regarding the deputies' exceeding the scope of a valid levy by entering the curtilage, the trial court did not err by granting defendant's motion to suppress and by dismissing the case. State v. Watson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Apr. 10, 2017).

Defendant had no reasonable expectation of privacy inside the tent, and therefore the trial court did not err by determining that he lacked standing to challenge the search of the tent, because the record showed that defendant and the others happened upon the tent and began using it without determining who owned it and without the owner's consent, and the property on which the tent was located at visible no trespassing signs. State v. Cool, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 12, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 58 (Tenn. Jan. 18, 2019).

Defendant's motion to suppress the evidence obtained from a warrantless search of his motel room was properly denied because defendant did not have an expectation of privacy regarding the black bag and its contents, which included heroin, pills, plastic bags, and a money transfer receipt with defendant's name, as he disclaimed ownership of the bag. State v. Savage, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 582 (Tenn. Crim. App. Sept. 19, 2019).

By using a cell phone, defendant willingly exposed identifying information to defendant's wireless provider, thereby assuming the risk that this information might be revealed to the government and rendering defendant's expectation of privacy in this information unreasonable. Thus, trial counsel's decision not to file a non-meritorious motion to suppress the cell phone records allegedly linking defendant to charged crimes that were obtained in a warrantless seizure was not deficient performance. Howell v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Dec. 19, 2019).

Trial court erred in denying defendant's motion to suppress and dismiss the indictments against him because defendant had a legitimate expectation of privacy and standing to challenge the search where the sole justification for the traffic stop was the fact that defendant was speeding, defendant's history of drug offenses was not sufficient to prolong a traffic stop in order to turn it into a drug investigation, and defendant was driving the vehicle with the owner's permission, took normal precautions to maintain privacy, and established a right to exclude others from his property by securing his backpack in the trunk and objecting to the search. State v. Flood, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. Apr. 16, 2020).

57. Seizure of Person.

Defendant reasonably believed he was seized under the Fourth Amendment, U.S. Const. amend. IV, and Tenn. Const. art. I, § 7 when an officer drew his service weapon, pointed it in defendant's direction, and frisked another guest. State v. Williamson, 368 S.W.3d 468, 2012 Tenn. LEXIS 380 (Tenn. May 31, 2012).

Defendant was “seized” within the meaning of the Fourth Amendment and Tenn. Const. art. I, § 7, at the moment the officer began to pursue defendant. State v. Nelson, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Aug. 18, 2014), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 65 (Tenn. Jan. 21, 2016).

Officer testified that, because of the placement of his patrol car, it would have been impossible for defendant to move his vehicle and terminate the encounter, and thus defendant was seized at the time that the officer parked his patrol car behind defendant's vehicle. State v. Latham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 3, 2015).

Defendant was clearly seized when the officer turned on the patrol car's blue lights, signaling defendant to stop his vehicle. State v. Edwards, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1035 (Tenn. Dec. 11, 2015).

Whether defendant was characterized by investigators as either a witness or a suspect, he was seized and detained at the time investigators activated their blue lights to stop him, and because this was done when he was only a witness and not a suspect, this was an illegal seizure. State v. Hawkins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Aug. 28, 2015), aff'd, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017), cert. denied, Hawkins v. Tennessee, 199 L. Ed. 2d 288, 138 S. Ct. 388, 2017 U.S. LEXIS 6432 (U.S. Oct. 30, 2017).

Defendant was not illegally transported from Mississippi to Tennessee, and therefore the trial court did not err by denying defendant's motion to suppress, because extradition proceedings were not necessary as defendant voluntarily agreed to be transported to Tennessee to surrender the drugs in his motel room and work as a confidential informant. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. May 4, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 647 (Tenn. Oct. 4, 2017).

Defendant's motion to suppress was properly denied because defendant was not seized or detained when a police detective approached defendant in defendant's parked car in a shopping mall parking lot and asked defendant what defendant was doing in the area. Furthermore, the detective had probable cause to arrest defendant upon hearing another nearby police detective state that the detective just saw a person with whom defendant had met in another parked car swallow a pill and that the detective saw another pill in plain view in the car. State v. Ashford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Sept. 1, 2017).

Deputy's actions in parking beside defendant's vehicle and exiting his patrol car did not constitute a seizure, but when the deputy told defendant to stop after defendant began backing out of his parking space, the deputy seized defendant. State v. Crepack, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Oct. 12, 2018).

58. Length of Detention.

State failed to meet its burden of establishing that it was reasonable for the deputy to detain defendant for 10 to 15 minutes without investigating the possible trespassing or the suspected driving under the influence (DUI). Upon detecting the odor of alcohol and observing that defendant had slurred speech and watery eyes, the deputy, who was trained in DUI enforcement, should have conducted a field sobriety test rather than detain defendant while waiting for another deputy to arrive. State v. Montgomery, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 12, 2014), rev'd, 462 S.W.3d 482, 2015 Tenn. LEXIS 271 (Mar. 27, 2015).

Defendant was not entitled to suppress his statement to police and evidence obtained pursuant to his arrest because the 15 minutes that elapsed after an officer put defendant and his friend into the back of patrol cars was a reasonable time for the officers to detain defendant and the friend to investigate the circumstances of a robbery; although the friend's physical description and clothing matched that of the robber, the officers learned that defendant and his friend had switched clothes. State v. Sykes, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 25, 2015).

59. Independent Source.

Trial court properly admitted the evidence found on defendant's person, because it was obtained pursuant to an independent, valid warrant for defendant's arrest for passing worthless checks. State v. Womack, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 5, 2014), review denied and ordered not published, — S.W.3d —, 2015 Tenn. LEXIS 363 (Tenn. Apr. 21, 2015).

While the warrantless entry into defendants' home was unlawful, the evidence was properly seized as a result of a valid warrant based on evidence developed independently of any information gained from the warrantless entry. State v. Welch, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. Oct. 13, 2016).

60. Community Caretaking.

Sergeant did not effect a seizure with the activation of his emergency lights, given that at 2:45 a.m., he noticed a running car partially blocking a drive and the car's rear tire extended into the roadway, and the sergeant activated his rear lights, knocked on the window, and it took a minute to get a response from defendant, who was slumped over at the wheel; the sergeant's actions were proper under the community caretaking doctrine, which does not require reasonable suspicion. State v. McCormick, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Apr. 2, 2015).

Officer's subjective thought or guess as to which of several circumstances might in fact exist is not, and should not be, an exception to the warrant requirement; case law does not foreclose an officer's ability to engage in the community caretaking function, it merely strikes a balance between an officer's role in that respect and a citizen's right to be free from warrantless search or seizure. State v. Latham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Aug. 3, 2015).

Officers actions in parking on the roadway behind defendant's vehicle with his lights activated and opening the door to the car and attempting to rouse defendant after taps on the window failed to rouse him were well within the community caretaking exception to the warrant requirement, after the officer noticed defendant's vehicle parked in the roadway in front of a closed store with defendant slumped over the steering wheel of the running vehicle. State v. McCormick, 494 S.W.3d 673, 2016 Tenn. LEXIS 318 (Tenn. May 10, 2016).

Trial court properly granted defendant's motion to suppress evidence obtained during “a welfare check” because the community caretaking exception did not apply where a police officer did not see defendant driving her vehicle before observing the other driver outside of his truck, had no opportunity to view how closely defendant followed the truck before both drivers' stopped, or to observe any measures that defendant might have taken to avoid colliding with the truck, assuming that she did, in fact, strike it, nothing in the record suggested that either driver was in need of the officer's assistance, and there was no risk of danger or threat to public safety had the officer not to intervened. State v. Weston, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. Aug. 2, 2016).

Community caretaking function was needed to assist defendant, who appeared to be asleep or unconscious behind the wheel of a running car parked in a public place; she was unresponsive when the officer knocked and addressed her, and when she remained unresponsive, he opened the driver's door and then smelled alcohol, and then she mumbled incoherently and had trouble retrieving her license as requested. At this point, the officer had reasonable suspicion that defendant was under the influence, warranting further investigation. State v. Tucker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 565 (Tenn. Crim. App. July 27, 2018).

Police officers' initial detention of defendant was justified by community caretaking exception to the warrant requirement because the officers, who were responding to a call about a person passed out in a car behind a liquor store, found defendant and an officer noticed an odor of alcohol, defendant's slurred speech, and beer cans on the passenger seat. Therefore, the officer had reasonable suspicion that defendant had committed or was about to commit DUI when the officer had defendant get out of the car and perform field sobriety tests. State v. Henry, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Oct. 23, 2018).

61. Agent of State.

Witness did not go to his mother's house for the purpose of searching for the journal in question, and instead, he saw the journal in plain view in the kitchen; the evidence supported the conclusion that the witness was not acting as an agent of the State when he discovered the journal. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

NOTES TO DECISIONS

1. General Notes.

One of the primary objects of Tenn. Const. art. I, § 8 was to protect the feeble, odious, and obnoxious in their person and property from the injury and injustice of the strong and powerful, and, in general, to protect minorities from the wrongful action of majorities. Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15 (1831); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842). It is the duty of the state, by general laws, to protect and provide for those who are incapable of taking care of themselves. Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890).

There is not a single provision in the constitution more salutary in its character, or that demands in its enforcement the exercise of greater vigilance and energy than Tenn. Const. art. I, § 8 forbidding the enactment of a partial law abridging or taking away the rights of any individual. Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 396 (1877).

Under Tenn. Const. art. I, § 8, an individual may be deprived of his property in many instances by legislation clearly constitutional. The property of an individual may be taken by summary proceedings for the payment of his taxes, or by judicial proceedings to compel the performance of his contracts, or to recover damages for the breach of his contracts, or for torts committed by him, or it may be taken as a punishment for his crime, but it cannot be taken from one merely to give it to another. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890).

When the constitutional rights of a citizen are at issue, or when questions of due process or equal protection of the law are involved, an act of the legislature will prevail over the provisions of a municipal ordinance. Bartlett v. Hoover, 571 S.W.2d 291, 1978 Tenn. LEXIS 644 (Tenn. 1978).

The individual's right to personal liberty is a fundamental right for equal protection purposes. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Defendant was competent to stand trial where his expert witness stated that defendant's inability to relate to his attorneys appeared to be defendant's choice based on his characterologic style, but not from dementia or psychosis. State v. Davis, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Oct. 25, 2004), aff'd, State v. Davis, 185 S.W.3d 338, 2006 Tenn. LEXIS 189 (Tenn. 2006).

Where neither fundamental rights nor suspect classifications are at issue, rational basis scrutiny applies, and the legislature could have had any number of rational bases for the differential treatment of minority tolling in the area of medical malpractice; state supreme courts were not constrained from prospectively applying new interpretations of state statutes by anything contained in the United States constitution, such that the retrospective application of the rule to the doctor had no merit. Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 2005 Tenn. LEXIS 1061 (Tenn. 2005).

2. —Relation to Other Constitutional Provisions.

Tenn. Const. art. I, § 8 positively prohibits the imposition of burdens and wrongs and deprivations upon the individual as such, while Tenn. Const. art. XI, § 8 prohibits the granting of favors and benefits to the individual as such. This distinction is important for the purpose of determining under which provision partial and objectionable class legislation falls. This distinction is shown in The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

Laws are general within the meaning of the provisions of Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, when they include equally all persons who are in, or who may come into, the situation and circumstances contemplated; for, in this particular, the requirement of one is the same as the other provision. Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Scott v. Marley, 124 Tenn. 388, 137 S.W. 492, 1911 Tenn. LEXIS 54 (1911); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, do not impose any restraint upon the legislative authority conferred by Tenn. Const. art. VI, § 1, to create courts and define their jurisdiction, or transfer jurisdiction from one court to another. Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 1935 Tenn. LEXIS 98 (1936).

3. —State-Created Rights.

While a statute may give rights protected by Tenn. Const. art. I, § 8, the rights are not perpetual; they exist only as long as the general assembly retains the language affording the right. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

The general assembly may enact statutes that afford such rights, but the general assembly is also free to amend these statutes, even where the amendment eliminates the formerly protected interests. State v. Darden, 12 S.W.3d 455, 2000 Tenn. LEXIS 56 (Tenn. 2000).

4. —Jurisdiction.

Chancellor is without jurisdiction of bill by county judge against county trustee seeking declaration as to constitutionality of act extending delinquent date for taxes in all except a few counties, claimed to be void under Tenn. Const. art. I, § 8, the attorney general not having received notice. Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062, 1928 Tenn. LEXIS 241 (1928).

The supreme court of the United States is the final arbiter of questions involving the contract, retrospective law, due process, and equal protection provisions contained in both the state and federal constitutions so that all decisions of such court with reference to such questions are controlling. Paine v. Fox, 172 Tenn. 290, 112 S.W.2d 1, 1937 Tenn. LEXIS 79 (1937).

Supreme court did not have jurisdiction of appeal from circuit court dismissing petition by railroad for review of determination by public utilities commission reducing rates of railroad alleged by railroad to have resulted in taking of its property without due process of law on the ground that evidence before the commission did not support its determination since a mere error in judgment by the court as to the admissibility or probative value of evidence does not constitute a denial of due process. Tennessee C. R. Co. v. Pharr, 183 Tenn. 658, 194 S.W.2d 486, 1946 Tenn. LEXIS 249 (1946).

The Tennessee supreme court, as the final arbiter of the Tennessee constitution, is always free to expand the minimum level of protection mandated by the federal constitution. State v. Ferguson, 2 S.W.3d 912, 1999 Tenn. LEXIS 426 (Tenn. 1999).

5. —Standing.

One who is not being prosecuted for having in his possession any of the drugs specified in an act prohibiting the sale or distribution of opium or its derivatives cannot question the constitutionality of the provision of the act declaring possession of the drugs to be presumptive evidence of a violation of the act, on the ground that it contravenes Tenn. Const. art. I, § 8. Hyde v. State, 131 Tenn. 208, 174 S.W. 1127, 1914 Tenn. LEXIS 100 (1915).

The reasonableness of the exclusion of particular industries from a district or zone cannot be attacked by those whose interests are not affected thereby. Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, 1926 Tenn. LEXIS 22 (1927).

Citizens and taxpayers who were voters in the referendum calling the 1977 limited constitutional convention lacked standing to challenge amendment to Tenn. Const. art. XI, § 12, on ground that the amendment exceeds the limits of the convention call of Acts 1976, ch. 848 and therefore is ineffective under Tenn. Const. art. XI, § 3. Parks v. Alexander, 608 S.W.2d 881, 1980 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2019, 68 L. Ed. 2d 326, 1981 U.S. LEXIS 1852 (1981).

Lawsuit challenging amendment to Tenn. Const. art. XI, § 12, did not present a justiciable controversy under the Declaratory Judgments Act where amendment was not self-executing but required legislative action to affect any rights of the plaintiffs, thereby rendering the controversy theoretical and contingent. Parks v. Alexander, 608 S.W.2d 881, 1980 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1980), cert. denied, 451 U.S. 939, 101 S. Ct. 2019, 68 L. Ed. 2d 326, 1981 U.S. LEXIS 1852 (1981).

A man who claims to be the father of a child does not have standing to bring a paternity action in which he seeks to be declared the father, along with visitation rights and a name change of a child born during the marriage of the natural mother to a man previously declared by the trial court to be the father of the child; and such denial does not violate the equal protection or due process clauses of U.S. Const. amend. 14, Tenn. Const. art. I, § 8, or Tenn. Const. art. XI, § 8. Cline v. Drew, 735 S.W.2d 232, 1987 Tenn. App. LEXIS 3192 (Tenn. Ct. App. 1987).

6. —Statute of Limitations.

Section 28-3-104 did not apply to constitutional challenge of Homosexual Practices Act (former T.C.A. § 39-13-510), because there is no statute of limitations on challenging an unconstitutional penal statute. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

7. —Application to Corporations.

The state may by statute prescribe the terms upon which foreign corporations shall come within its borders and carry on business with its citizens, or may exclude them altogether, or, if once admitted, may expel them. State v. Phenix Fire Ins. Co., 92 Tenn. 420, 21 S.W. 893, 1892 Tenn. LEXIS 89 (1892)(insurance corporations)Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743, 1893 Tenn. LEXIS 15 (1893); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Connecticut Mut. Life Ins. Co., 106 Tenn. 282, 61 S.W. 75, 1900 Tenn. LEXIS 163 (1901); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901); D'Arcy v. Connecticut Mut. Life Ins. Co., 108 Tenn. 567, 69 S.W. 768, 1902 Tenn. LEXIS 2 (1902).

But the transaction of interstate commerce by foreign corporations not engaged in carrying on business within the borders of the state cannot be prohibited or prevented by the state. Milan Milling & Mfg. Co. v. Gorten, 93 Tenn. 590, 27 S.W. 971, 1894 Tenn. LEXIS 3, 26 L.R.A. 135 (1894); State v. Connecticut Mut. Life Ins. Co., 106 Tenn. 282, 61 S.W. 75, 1900 Tenn. LEXIS 163 (1901).

The word “man” in Tenn. Const. art. I, § 8 includes corporations, and the word “person” in U.S. Const. amends. 5, 14, § 1 includes corporations; and corporations are protected under “the law of the land” and “due process of law” clauses therein against the deprivation of their life, liberty, and property. Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901).

But the word “citizens” in U.S. Const. amend. 14, § 1 does not include corporations within the provision prohibiting the abridgement of “the privileges or immunities of the citizens of the United States,” nor does the word “citizens” in U.S. Const. art. 4, § 2, cl. 1 declaring that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” include corporations. Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S. Ct. 281, 43 L. Ed. 552, 1899 U.S. LEXIS 2386 (1899); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901).

8. Liberties and Privileges.

The whole community is entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its application. It is not the partial character of the rule, so much as its arbitrary and unusual nature, that condemns it as unknown to the law of the land. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

When an act of the legislature applies to all who come within the defined terms of the statute, all are treated alike, accorded the same privileges and subject to the same restrictions, a limitation as to certain reasonable exemptions will not be held unreasonable and arbitrary as in violation of Tenn. Const. art. I, § 8. Hughes v. Board of Comm'rs, 204 Tenn. 298, 319 S.W.2d 481, 1958 Tenn. LEXIS 271 (1958).

Tennessee Board of Nursing did not err by denying the applicant a contested case because T.C.A. § 63-7-115 did not mandate that a contested case occur, and even if the applicant's liberty interests were implicated, he received all of the process to which he was entitled because his meetings with the Board qualified as a name-clearing hearing. Butler v. Tenn. Bd. of Nursing, — S.W.3d —, 2016 Tenn. App. LEXIS 792 (Tenn. Ct. App. Oct. 25, 2016).

9. —Right to Contract.

The right to contract is subject to legislative control, and is subject to curtailment, limitation, and destruction by “the law of the land.” Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Leeper v. State, 103 Tenn. 500, 53 S.W. 962, 1899 Tenn. LEXIS 133, 48 L.R.A. 167 (1899); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); Standard Oil Co. v. State, 117 Tenn. 618, 100 S.W. 705, 1906 Tenn. LEXIS 71, 10 L.R.A. (n.s.) 1015 (1907); Cantrell v. Ring, 125 Tenn. 472, 145 S.W. 166, 1911 Tenn. LEXIS 41 (Tenn. Dec. 1911), criticized, Teague Bros., Inc. v. Martin & Bayley, Inc., 750 S.W.2d 152, 1987 Tenn. App. LEXIS 3040 (Tenn. Ct. App. 1987), criticized, McCallum v. Stem, 23 F.2d 491, 1928 U.S. App. LEXIS 3197 (6th Cir. Tenn. Jan. 6, 1928); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Both the words “liberty” and “property” in Tenn. Const. art. I, § 8 include the right to make contracts, and contracts are entitled to the same protection as property itself. Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Third Nat'l Bank v. Divine Grocery Co., 97 Tenn. 603, 37 S.W. 390, 1896 Tenn. LEXIS 187, 34 L.R.A. 445 (1896); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); State ex rel. Hamby v. Cummings, 166 Tenn. 460, 63 S.W.2d 515, 1933 Tenn. LEXIS 100 (1933).

The liberty of contract is one of the inalienable rights of the citizen, and includes the right to pursue a lawful calling embracing the right to enter into all contracts proper, necessary, and essential to the carrying out of the purpose of such calling, and the possession of property, of which a person cannot be deprived, and implying the right to acquire and dispose of property; and a general prohibition against entering into contracts with respect to property or having as their object the acquisition of property is unconstitutional and void. Moyers v. Memphis, 135 Tenn. 263, 186 S.W. 105, 1916 Tenn. LEXIS 26 (1916).

Any person sui juris may make any contract with another which is not in violation of the federal or state constitutions, federal or state statutes, some ordinance of a city or town, or some rule of the common law. Wallace v. McPherson, 138 Tenn. 458, 197 S.W. 565, 1917 Tenn. LEXIS 56, 1918A L.R.A. (n.s.) 1148 (1917).

Act making sale of gasoline without permit from state superintendent of division of motors and motor fuels unlawful is invalid in that it confers on superintendent right to fix price at which gasoline shall be sold, for it deprives both seller and purchaser of freedom to contract. Standard Oil Co. v. Hall, 24 F.2d 455, 1927 U.S. Dist. LEXIS 1724 (D. Tenn. 1927), aff'd, Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 1928 U.S. LEXIS 323, 60 A.L.R. 596 (1928).

Act prohibiting the teaching of the evolution theory in public schools was a valid enactment and not contrary to Tenn. Const. art. I, § 8 since the state may prescribe the terms upon which teachers must serve the state. Scopes v. State, 154 Tenn. 105, 289 S.W. 363, 1926 Tenn. LEXIS 109, 53 A.L.R. 821 (1926), superseded by statute as stated in, State v. Durso, 645 S.W.2d 753, 1983 Tenn. LEXIS 768 (Tenn. 1983).

The legislature may freely prescribe the terms and conditions upon which employees of the state or of municipalities of the state should work, unhampered by Tenn. Const. art. I, § 8. Knoxville v. State, 175 Tenn. 159, 133 S.W.2d 465, 1939 Tenn. LEXIS 26 (1939).

Collection of tax from consumer does not abridge the freedom of contract. Hooten v. Carson, 186 Tenn. 282, 209 S.W.2d 273, 1948 Tenn. LEXIS 549 (1948).

The right to work or to contract in regard to work is a property right which is protected by the constitutional provision. Bryan v. International Alliance, 43 Tenn. App. 180, 306 S.W.2d 64, 1957 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1957).

The right to contract is subject to curtailment, limitation and destruction by the legislature where such is done pursuant to “the law of the land.” Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

T.C.A. § 29-26-120, concerning attorney fee contracts, does not violate the due process provisions of the state and federal constitutions; section is not arbitrary nor discriminatory, and bears a reasonable relation to a proper legislative purpose, the general assembly's desire to ameliorate the medical malpractice crisis. Newton v. Cox, 878 S.W.2d 105, 1994 Tenn. LEXIS 144 (Tenn. 1994), cert. denied, 513 U.S. 869, 115 S. Ct. 189, 130 L. Ed. 2d 122, 1994 U.S. LEXIS 6289 (1994).

10. —Right of Privacy.

There is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee declaration of rights. Davis v. Davis, 842 S.W.2d 588, 1992 Tenn. LEXIS 400 (Tenn. 1992), cert. denied, Stowe v. Davis, 507 U.S. 911, 113 S. Ct. 1259, 122 L. Ed. 2d 657, 1993 U.S. LEXIS 1148 (1993).

The right to privacy contained in Tenn. Const. art. I, § 8 and other sections of the Tennessee constitution's declaration of rights is similar to, but not synonymous with, the federal right to privacy encompassed by U.S. Const. amends. 5 and 14. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

The right to privacy in Tennessee is founded in part upon Tenn. Const. art. I, § 8, but its sources also include Tenn. Const. art. I, §§ 3, 7, 19 and 27. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

The state constitutional guarantee of privacy is not a source of public policy which restricts the right of private employers to discharge terminable-at-will employees who test positive on random drug tests. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 1997 Tenn. LEXIS 283 (Tenn. 1997).

The Tennessee constitution does not provide a right to the nondisclosure of private acts. Cutshall v. Sundquist, 193 F.3d 466, 1999 FED App. 352P, 1999 U.S. App. LEXIS 24363 (6th Cir. Tenn. 1999), cert. denied, 529 U.S. 1053, 120 S. Ct. 1554, 146 L. Ed. 2d 460, 2000 U.S. LEXIS 2391 (2000).

11. — —Woman's Right to Terminate Pregnancy.

A woman's right to terminate her pregnancy is a vital part of the right to privacy guaranteed by Tenn. Const. art. I, §§ 1, 2, 3, 7, 8, 19, 27. Furthermore, this right is inherent in the concept of ordered liberty embodied in these constitutional provisions and is therefore fundamental and subject to strict scrutiny analysis. Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 2000 Tenn. LEXIS 515 (Tenn. 2000).

12. — —Parental Rights.

In light of the right to privacy under the Tennessee constitution, when no substantial harm threatens a child's welfare, the state lacks a sufficiently compelling justification for infringement on the fundamental right of parents to raise their children as they see fit. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Parental rights constitute a fundamental liberty interest under Tenn. Const. art. I, § 8. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Right to privacy fully protects the right of parents to care for their children without unwarranted state intervention. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Parental immunity is limited to conduct that involves the exercise of parental authority, performance of parental supervision, and the provision of parental care and custody; mother's operation of automobile in which children were passengers was not protected under this standard, and thus immunity did not protect mother from liability for injuries to the children. Broadwell ex rel. Broadwell v. Holmes, 871 S.W.2d 471, 1994 Tenn. LEXIS 9 (Tenn. 1994).

Provision of former § 36-1-111 that would allow court to enter decree of adoption based on best interest of child, without prior judicial termination of father's parental rights pursuant to law, is constitutionally invalid. Nale v. Robertson, 871 S.W.2d 674, 1994 Tenn. LEXIS 36 (Tenn. 1994).

Adoptive parents are entitled to the same constitutional protection of parenting decisions as natural parents. Simmons v. Simmons, 900 S.W.2d 682, 1995 Tenn. LEXIS 271 (Tenn. 1995).

In a contempt action by paternal grandparents against mother for refusing to allow visitation with grandchild, where the natural father's parental rights had been terminated and the child adopted by the mother's husband, under their constitutionally protected parental rights, and where there was no evidence that the child was in danger of substantial harm, the mother and adoptive father had the right to refuse visitation. Simmons v. Simmons, 900 S.W.2d 682, 1995 Tenn. LEXIS 271 (Tenn. 1995).

Statutory provision that no putative father may legitimate his child without the consent of the mother violates due process and equal protection principles. Vineyard v. Hood (In re Hood), 930 S.W.2d 575, 1996 Tenn. App. LEXIS 348 (Tenn. Ct. App. 1996).

The statute denying standing to an alleged biological father seeking to establish paternity of a child born to a woman while she was married to another man does not seek to remove a parental relationship where one exists but to create rights for the putative father and, since no protected rights are implicated, this statute does not violate the alleged biological father's rights to due process. Evans v. Steelman, 970 S.W.2d 431, 1998 Tenn. LEXIS 179 (Tenn. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 371 (Tenn. June 22, 1998).

The language of T.C.A. § 36-6-306, allowing grandparents reasonable visitation rights upon a finding of the best interests of the minor child, constitutes an unconstitutional invasion of the privacy rights of the parents under the Tennessee constitution. Ellison v. Ellison, 994 S.W.2d 623, 1998 Tenn. App. LEXIS 746 (Tenn. Ct. App. 1998).

It is beyond question that before a parent's rights can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated. Tennessee Baptist Children's Homes, Inc. v. Swanson (In re Swanson), 2 S.W.3d 180, 1999 Tenn. LEXIS 475 (Tenn. 1999).

The definition formerly found in § 36-1-102 of “willfully failed to support” and “willfully failed to make reasonable payments toward such child's support” is unconstitutional because it creates an irrebutable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional. Tennessee Baptist Children's Homes, Inc. v. Swanson (In re Swanson), 2 S.W.3d 180, 1999 Tenn. LEXIS 475 (Tenn. 1999).

The state has a compelling interest that justifies establishing a procedure for resolving parentage disputes and for making this procedure available not only to the child and the child's mother and her husband, but also to any man claiming to be the child's biological father. State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 2000 Tenn. App. LEXIS 566 (Tenn. Ct. App. 2000).

The parentage statutes, codified at T.C.A. § 36-2-301 et seq., which provide a new remedy for biological fathers to establish paternity notwithstanding the marital status of the child's mother, do not impermissibly interfere with familial privacy interests, or with the rights and interests of a husband of a woman whose child's parentage is disputed; accordingly, these sections are constitutional on their face. State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 2000 Tenn. App. LEXIS 566 (Tenn. Ct. App. 2000).

It would be a violation of constitutional rights if the parents were denied a day in court on either other parent's petition to modify or the other original petition to relocate the children. Placencia v. Placencia, 48 S.W.3d 732, 2000 Tenn. App. LEXIS 824 (Tenn. Ct. App. 2000).

When child's parent voluntarily consented to cede custody to the child's maternal grandparent, the parent no longer enjoyed a presumption of superior rights; the parent's strengthened relationship with the child did not justify a change in custody from the grandparent to the parent. Blair v. Badenhope, 77 S.W.3d 137, 2002 Tenn. LEXIS 192 (Tenn. 2002).

Court did not err by refusing to apply the “superior parental rights doctrine” to a mother's petition to modify a child custody because witnesses testified that the mother indicated that she understood the order and the process, testimony showed that the parties intended for the order to transfer custody of the child from the mother to the foster parents, and it was to remain effective until such time as the mother sought to file a petition to modify custody to regain custody of the child, and the mother voluntarily consented to the entry of the order and waived a hearing on the custody issue; therefore, the court did not err in failing to apply the superior parental rights doctrine. Baker v. He (In re A.M.H.), — S.W.3d —, 2005 Tenn. App. LEXIS 736 (Tenn. Ct. App. Nov. 23, 2005), rev'd, In re the Adoption of A.M.H., 215 S.W.3d 793, 2007 Tenn. LEXIS 13 (Tenn. Jan. 23, 2007).

Evidence that appellant parents' daughter would be harmed from a change in custody because she lived and bonded with appellees during the pendency of the instant litigation did not constitute the substantial harm required to prevent the parents from regaining custody. In re A.M.H., 215 S.W.3d 793, 2007 Tenn. LEXIS 13 (Tenn. Jan. 23, 2007), rehearing denied, 215 S.W.3d 793, 2007 Tenn. LEXIS 235 (Tenn. 2007), cert. denied, Baker v. Shao-Qiang He, — U.S.—, — S. Ct. —, — L. Ed. 2d —, 2007 U.S. LEXIS 8357 (U.S. June 25, 2007).

Alleged heir could not prevail on constitutional grounds where the decedent simply did not intend to make a bequest; a petition by a child born out of wedlock to establish paternity after the death of the testator had no bearing on the intent of the testator. Lanier v. Rains, 229 S.W.3d 656, 2007 Tenn. LEXIS 583 (Tenn. June 28, 2007).

Court erred in terminating a mother's parental rights because the State failed to provide reasonable efforts at rehabilitation; the case manager conceded that she never attempted to communicate with the mother in writing and that she never had any follow-up conversations with the mother about helping her obtain rehabilitative services. In re Tiffany B., 228 S.W.3d 148, 2007 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 26, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 379 (Tenn. Apr. 23, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 531 (Tenn. May 29, 2007).

Court erred in terminating a father's parental rights because the State failed to provide reasonable efforts at rehabilitation; the case manager conceded that no effort was made to communicate with the father in writing, and his third case manager admitted that she had only one face-to-face meeting with the father that occurred when he was incarcerated in the workhouse. On that occasion, the case manager admitted that she failed to provide the father with the written notice of the meeting that she had provided the mother earlier that same day and that she did not offer to make arrangements to provide him services at that time. In re Tiffany B., 228 S.W.3d 148, 2007 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 26, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 379 (Tenn. Apr. 23, 2007), appeal denied, In re T. B., — S.W.3d —, 2007 Tenn. LEXIS 531 (Tenn. May 29, 2007).

Trial court appropriately applied a presumption of superior parental rights in favor of a mother because she did not appreciate the consequences of entering into an agreed order transferring custody of her child to grandparent; the grandparents, who were the mother's adoptive parents, were in a position of trust when they presented the mother with a custody order, and the mother reasonably trusted them to protect her parental rights and to act in the child's best interest. In re Kane H., — S.W.3d —, 2015 Tenn. App. LEXIS 359 (Tenn. Ct. App. May 20, 2015).

Because the new requirements were added to the permanency plan shortly before trial, and the evidence showed that the mother was not given sufficient time to complete those newly added requirements, although she did make an effort to complete some of them, terminating her parental rights for failure to complete those requirements would violate due process; thus, the order terminating the mother's parental rights to the child for substantial noncompliance with the statement of responsibilities in the permanency plan was reversed. In re Bryson C., — S.W.3d —, 2016 Tenn. App. LEXIS 498 (Tenn. Ct. App. July 18, 2016).

Mother failed to demonstrate that she was deprived of any of her rights related to her representation or to fundamental fairness in the parental termination proceedings because her counsel remained on her case and represented her at trial in her absence; counsel attempted to communicate with the mother throughout the case, and the mother had to accept the responsibility of counsel's choice to proceed without the mother at trial. In re Karissa, — S.W.3d —, 2017 Tenn. App. LEXIS 134 (Tenn. Ct. App. Feb. 27, 2017), appeal denied, In re Karissa V., — S.W.3d —, 2017 Tenn. LEXIS 330 (Tenn. May 24, 2017).

Trial court's visitation schedule for the grandmother, which allowed her overnight visitation with the child the third weekend of every month, every Christmas break, every other Thanksgiving break, and every summer break, and required the mother to facilitate two phone calls per week, was not reasonable because it impermissibly interfered with the mother's rights and it was not narrowly tailored, as the child was only 16 months old, the grandmother never acted as a caregiver or parent, and yet to establish a significant relationship with the child, having only visited her twice. In re Diawn B., — S.W.3d —, 2018 Tenn. App. LEXIS 422 (Tenn. Ct. App. July 23, 2018).

Grandparent visitation statutes must be narrowly construed to protect the fundamental parental liberty interest at stake, and the supreme court has expressly rejected the examination of the extent or quality of a petitioner's relationship with the child when determining whether he or she qualifies as a grandparent under the statute; thus, subsection (e) does not authorize a court to determine that a petitioner qualifies as a de facto grandparent based upon his or her relationship with a child. In re Claire C., — S.W.3d —, 2020 Tenn. App. LEXIS 66 (Tenn. Ct. App. Feb. 14, 2020).

13. — —Homosexual Practices Act.

The Homosexual Practices Act, codified in former § 39-13-510, is an unconstitutional violation of the fundamental right of privacy; this right encompasses Tennessee citizens' rights to engage in consensual, private, non-commercial, sexual conduct, because that activity involves intimate questions of personal and family concern. Campbell v. Sundquist, 926 S.W.2d 250, 1996 Tenn. App. LEXIS 46 (Tenn. Ct. App. 1996).

14. —Right to Litigate.

The right to litigate in the courts is a common right, and a species of property — an incorporeal property — and is not taxable as a privilege, but may be taxed as a property right by the imposition of a specific tax upon the unsuccessful litigant. Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 Tenn. LEXIS 413, 19 Am. Rep. 604 (1871); Maxwell v. State, 55 Tenn. 565, 1875 Tenn. LEXIS 3 (1875); State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879).

Fact that court refused to allow complainant to prosecute suit as assignee did not amount to deprivation of property without judgment of peers where cause of action was not assignable and bill did not state cause of action. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Denial to wife of cause of action against husband for personal injuries did not constitute denial of due process or equal protection of law. Fischer v. Fischer, 477 S.W.2d 513, 1972 Tenn. LEXIS 392 (Tenn. 1972).

Where state proceeding could subject insurer to liability, insurer's right to present evidence and cross-examine witnesses precludes state court from accepting federal agency decision as conclusive on liability issue. Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23, 1976 Tenn. LEXIS 568 (Tenn. 1976).

15. — —Rights in Remedies.

A special law in aid of the remedy to enforce existing rights, and depriving no one of a right, may be constitutional. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836).

Neither Tenn. Const. art. I, § 8, providing that no one shall be deprived of his property except by due process of law, nor Tenn. Const. art. I, § 20, prohibiting the making of retroactive laws or laws impairing the obligation of contracts, guarantees to the complaining party any particular remedy for the enforcement of his rights. Lunati v. Progressive Bldg. & Loan Ass'n, 167 Tenn. 161, 67 S.W.2d 148, 1933 Tenn. LEXIS 22 (1933).

Neither Tenn. Const. art. I, § 8 nor Tenn. Const. art. I, § 20 forbids a change in remedy, if it does not deprive one of a contractual right or prevent its enforcement. Lunati v. Progressive Bldg. & Loan Ass'n, 167 Tenn. 161, 67 S.W.2d 148, 1933 Tenn. LEXIS 22 (1933).

Principles of due process forbid the legislature to abolish a remedy that has been so far carried into operation that the substantive rights of the litigants would be adversely affected if the remedy, as to them, were abolished. Morris v. Gross, 572 S.W.2d 902, 1978 Tenn. LEXIS 660 (Tenn. 1978).

Tennessee has not recognized any implied cause of action for damages based upon violations of the Tennessee constitution. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

16. — —Statutes of Limitation.

Products liability statute of limitations, barring actions ten years after purchase of product is not an unconstitutional disseizing or depriving of life, liberty or property where the cancer occurred twenty-five years after exposure to the product. Mathis v. Eli Lilly & Co., 719 F.2d 134, 1983 U.S. App. LEXIS 16203 (6th Cir. Tenn. 1983).

Products Liability Act provisions in § 29-28-103 barring actions against manufacturers or sellers after ten years from purchase do not deny injured persons equal protection because there is a reasonable relation between the statutory classification and the statutory objective, namely, relieving manufacturers and sellers from indefinite liability and helping stem the increasing costs of products liability insurance. Stutts v. Ford Motor Co., 574 F. Supp. 100, 1983 U.S. Dist. LEXIS 12082 (M.D. Tenn. 1983).

The three-year statute of limitations for post-conviction release petitions contained in § 40-30-102 (repealed) complies with the due process requirements of the United States and Tennessee constitutions. Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

Where grounds for post-conviction relief occurred after action by the state's highest appellate court, the three-year statute of limitations found in § 40-30-102 (repealed) was unconstitutional as applied to petitioner because it denied him due process under the state and federal constitutions. Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

Narrowing of the statute from the general population of court litigants to only inmates is rationally related to a legitimate state interest and the statute does not deprive inmates of administrative remedies and does not permanently bar any inmate access to the courts; the State has a legitimate interest in reducing costs and in reducing the amount of meritless inmate litigation, and thus the statute is rationally related to the State's interest, the constitutional requirement of rationality is satisfied, and the statute does not offend principles of equal protection. Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 2017 Tenn. LEXIS 179 (Tenn. Mar. 23, 2017).

17. —Right to Vote.

The right of suffrage, the elective franchise, the right to vote, by whatever name it may be designated, is a privilege and a right more valuable than any other; for by it all other rights, property, liberty, and life may be guarded and protected. One clothed with this right has a vested interest, of which he can be deprived, not by any act of the legislature, but only by due process of law, or by the will of the people, acting in their sovereign character. The power to deprive one of this right cannot be conferred upon the governor by a legislative act. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869).

18. —Violation of Laws.

The supreme court refuses to recognize as one of the liberties guaranteed by government to its citizens the privilege of violating its laws. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

Tenn. Const. art. I, §§ 7, 8 gives no one a right to violate and defy the law, and when one has been prevented from doing that which is unlawful, he has been denied no constitutional right; and he who engages in the outlawed sale of intoxicating liquors subjects himself to the penalties of the law just as any other lawbreaker; and property used in such unlawful business will not be protected by the law with the same sacredness as property held and used for lawful purposes is protected. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

The enforcement of the liquor laws does not involve a controversy between the people and their liberties, and does not involve a doctrine that would seriously oppress the people and impair their liberties; and there is no element of oppression of the people in making effective the mandate of their own laws, that, for the good of the public, they shall not do certain things. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

An act prohibiting the transportation of intoxicating liquors intended for personal use does not violate Tenn. Const. art. I, § 8. There is no disseisin of liberties or privileges otherwise than by “the law of the land.” Liquor Transportation Cases, 140 Tenn. 582, 205 S.W. 423, 1918 Tenn. LEXIS 57 (1918).

Statute declaring certain acts to be deemed a commission of the offense of manufacture of whisky is not void as depriving one accused of his liberty and subjecting him to fines contrary to Tenn. Const. art. I, § 8. Hall v. State, 151 Tenn. 416, 270 S.W. 84, 1924 Tenn. LEXIS 74 (1925).

19. Judgment of Peers.

By the judgment of his peers or the law of the land is meant the verdict of a jury or such procedure at law as is recognized in our law as a proper and legal course of proceeding; as by judgment upon demurrer, or by attachment for contempt of court, and disobedience of such process and orders as are legally used for the enforcement of justice and the execution of the law. Renney v. Mayfield, 5 Tenn. 165, 1817 Tenn. LEXIS 82 (1817). These words (by the judgment of his peers or the law of the land) mean by the verdict of a jury in a case of disputed facts; and where the facts are otherwise legally apparent, by the judgment of a court legally constituted. For instance, if the fact be demurred to, or be confessed on record by the party, then, without the intervention of a jury, the court applies the law to the fact so legally apparent. Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824). See Tipton v. Harris, 7 Tenn. 414, 1824 Tenn. LEXIS 21 (1824); Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827); Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831); State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895).

Statutes giving the courts discretion to determine the punishment for crimes within fixed limitations are not unconstitutional as violative of Tenn. Const. art. I, § 8. The defendant is punished in accordance with the judgment of his peers and the law of the land. Durham v. State, 89 Tenn. 723, 18 S.W. 74, 1890 Tenn. LEXIS 94 (1891).

Statutes prescribing rules of evidence and declaring what shall be evidence, or what shall be prima facie evidence, and which party shall assume the burden of proof in civil cases, are constitutional, so long as they are impartial and uniform, and do not preclude a party from exhibiting his rights. Such statutes do not violate the right of trial by jury, nor deprive a litigant of “the judgment of his peers” under Tenn. Const. art. I, § 8. Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910). See notes under Tenn. Const. art. I, § 6.

The provision that no man shall be deprived of his liberty, “but by the judgment of his peers,” does not mean that the jury shall fix the punishment, but merely that, in cases to which jury trials are applicable, the prisoner shall not be deprived of his liberty but by the judgment of a jury finding his guilt; for, upon such guilt being found by the verdict duly returned into court and accepted by the trial judge, the law at once attaches to it the penalty prescribed therefor, and it is the duty of the judge to pronounce sentence accordingly. Woods v. State, 130 Tenn. 100, 169 S.W. 558, 1914 Tenn. LEXIS 7, L.R.A. (n.s.) 1915F531 (1914).

In felony cases, one of the means necessary to secure a fair and impartial trial by a jury of defendant's peers is not to permit the jury to separate, though accused consents to the separation. Long v. State, 132 Tenn. 649, 179 S.W. 315, 1915 Tenn. LEXIS 59 (1915).

A private act which established a special court in a particular locality for trial of certain misdemeanors without indictment, arraignment, or trial by jury was contrary to the law of the land and is unconstitutional. State ex rel. Ward v. Murrell, 169 Tenn. 688, 90 S.W.2d 945, 1935 Tenn. LEXIS 97 (1935); Spurgeon v. Worley, 169 Tenn. 697, 90 S.W.2d 948, 1935 Tenn. LEXIS 98 (1936).

Neither Tenn. Const. art. I, §§ 6 or 8 prevents an individual from waiving his right of a trial by jury in misdemeanor cases. Cates v. State, 198 Tenn. 270, 279 S.W.2d 262, 1955 Tenn. LEXIS 370 (1955); State v. Simmons, 199 Tenn. 479, 287 S.W.2d 71, 1956 Tenn. LEXIS 346 (1956).

In trial for a felony, it was not error for the trial court to refuse defendant's request to waive a trial by jury. Jones v. Tenn., 206 Tenn. 245, 332 S.W.2d 662, 1960 Tenn. LEXIS 512 (1960).

The fact that a juror was asleep in the jury box during a portion of the trial is not alone ground for a new trial, where it appears that accused was not prejudiced. State v. Chestnut, 643 S.W.2d 343, 1982 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. 1982).

20. Property and Property Rights.

Property, in the sense of Tenn. Const. art. I, § 8, is a thing in being which is capable of becoming the subject of dominion or ownership, and which actually has a master or proprietor, and is actually reduced into possession. Property in possession by Tenn. Const. art. I, § 8 is secured to the owner, so that it cannot be taken from him but by due course of law in a court regularly constituted and proceeding by the standing rules of law; and not by a legislative act depriving the owner of it for the benefit of some other individual. Townsend v. Townsend, 7 Tenn. 1, 1821 Tenn. LEXIS 14, 14 Am. Dec. 722 (Tenn. May 1821).

Where state law gives the licensing agency broad discretion to grant or to deny license applications in a closely regulated activity, the applicants for an initial license do not have a constitutionally protected claim of entitlement. Mid-South Indoor Horse Racing, Inc. v. Tennessee State Racing Com., 798 S.W.2d 531, 1990 Tenn. App. LEXIS 587 (Tenn. Ct. App. 1990).

While a justice of the peace has no vested right in his office, he has a property right therein. State v. Kerby, 136 Tenn. 386, 189 S.W. 859, 1916 Tenn. LEXIS 142 (1916).

Limitation of appointments to board of dental examiners to dentists recommended by state dental association did not violate Tenn. Const. art. I, § 8 on ground that such association was exclusive in character since the right to membership on such board was not a property right. Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S.W.2d 687, 1933 Tenn. LEXIS 78 (1934).

Statute providing for taxing of gasoline in storage unless intended for export and held not longer than sixty days does not violate constitution on the ground that it is depriving one of a property right, since right to store gasoline is a natural right and not a property right and storage can be taxed as a privilege. Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 1934 Tenn. LEXIS 99 (Dec. 1934).

The right to dispose of property by will, or real estate at least, depends entirely upon statute, since it is not a natural or constitutional right and may be regulated by legislation. Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713, 1960 Tenn. LEXIS 491 (1960).

A vested right of action is as much property as are tangible things and is protected from arbitrary legislation, whether such right of action be based upon the law of contracts or upon other principles of the common law. Morris v. Gross, 572 S.W.2d 902, 1978 Tenn. LEXIS 660 (Tenn. 1978).

When the decree of divorce adversely affects property interests of the surviving spouse, the death of the other spouse does not defeat the right of the surviving spouse or his or her representative to institute vacation proceedings. This is permitted, not for the purpose of continuing the controversy regarding the right to a divorce itself, but to determine whether or not the surviving spouse has been deprived of property interests by reason of the change in his or her marital status brought about by the divorce decree. Baggett v. Baggett, 541 S.W.2d 407, 1976 Tenn. LEXIS 548 (Tenn. 1976).

21. —Zoning.

Not only must a zoning ordinance requiring the termination of a nonconforming use within a specified period of time be reasonable in and of itself, it must also be reasonable as it applies to the particular property owner. Rives v. Clarksville, 618 S.W.2d 502, 1981 Tenn. App. LEXIS 470 (Tenn. Ct. App. 1981).

In determining if a zoning ordinance is reasonable as applied to plaintiff, the following, while not all inclusive, should be taken into consideration: (1) The structure located on the property; (2) The use of the property; (3) The location of the property; (4) The cost of the property; (5) The benefit to be derived by the public; (6) The period of use; and (7) The amortization period. In determining whether the amortization period is reasonable, consideration should be given to the length of the amortization period in relation to the property owner's investment and the length of the amortization period in relation to the use of the property. Rives v. Clarksville, 618 S.W.2d 502, 1981 Tenn. App. LEXIS 470 (Tenn. Ct. App. 1981).

“Amortization” to eliminate nonconforming uses does not violate the constitution. Rives v. Clarksville, 618 S.W.2d 502, 1981 Tenn. App. LEXIS 470 (Tenn. Ct. App. 1981).

Title 13, ch. 24, part 1, which removed local zoning restrictions and permitted the establishment of group homes for the mentally retarded, or mentally or physically handicapped, did not violate due process or equal protection. Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13, 1982 Tenn. App. LEXIS 478 (Tenn. Ct. App. 1982).

Allegation that zoning board acted arbitrarily and illegally by holding plaintiff to strict requirements of zoning ordinance, while at the same time permitting other sexually oriented businesses competing with him to operate illegally outside the zone, was dismissed for failure to state a claim; that some people escape the law's reach while others have the law enforced against them does not, by itself, run afoul of the equal protection guarantees in the state and federal constitutions. 421 Corp. v. Metropolitan Gov't of Nashville & Davidson County, 36 S.W.3d 469, 2000 Tenn. App. LEXIS 261 (Tenn. Ct. App. 2000).

Trial court properly dismissed landowners' claim that an ordiance violated due process because the statements in the preamble reflected legitimate legislative purposes, protecting the welfare of economically vulnerable citizens; the metropolitan council chose to restrict the location of alternative financial service providers in order to regulate the proliferation and clustering of those services and decision reasonably advanced the governmental interests identified in the preamble. Brown v. Metro. Gov't of Nashville & Davidson Cty., — S.W.3d —, 2018 Tenn. App. LEXIS 679 (Tenn. Ct. App. Nov. 26, 2018).

22. —Employment.

Employee promoted pursuant to the Civil Service Act was subject to six-month probationary period, and could be separated from the service without right of appeal or hearing according to the rules of the department of personnel, and being nontenured during the probationary period, employee did not have such a property interest in continued employment that would entitle her to the due process protection of the United States constitution or the provisions of the Tennessee constitution. Christians v. State Dep't of Correction, 790 S.W.2d 535, 1990 Tenn. App. LEXIS 4 (Tenn. Ct. App. 1990).

Due process requirements applied to dismissed professor because of her property interest in her tenured faculty position. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

23. —Professional Licenses.

An architect's due process interest in a professional license was not violated when that architect was prosecuted before the state disciplinary board by an attorney who also advised that board on unrelated matters. Martin v. Sizemore, 78 S.W.3d 249, 2001 Tenn. App. LEXIS 616 (Tenn. Ct. App. 2001).

Tennessee Nursing Board's petition for rehearing was denied because the notice did not fairly appraise the nurse under U.S. Const. amend. 14 and Tenn. Const. art. I, § 8 that the Division of Health Related Boards was seeking revocation or suspension of her license; division also presented no competent evidence regarding the nurse's psychological condition. Miller v. Tennessee Bd. of Nursing, 256 S.W.3d 225, 2007 Tenn. App. LEXIS 826 (Tenn. Ct. App. Oct. 22, 2007).

Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101 et seq., provides for procedural safeguards in contested medical license revocation cases, and UAPA procedure scrupulously protects the fundamental right of notice and opportunity to be heard. The doctor had not alleged that he was not provided either sufficient notice of the charges against him, or an opportunity to be heard, and from the appellate court's review of the record, it appeared that a contested hearing was set when the doctor appealed from the administrative judge's decision and was stayed pursuant to his request; accordingly, the appellate court did not find that due process under U.S. Const. amend. V & IV and Tenn. Const. art 1, § 8 required dismissal of the action since the doctor had been afforded due process by being given proper notice of the charges and an opportunity to be heard, where he may present evidence of the alleged settlement agreements and evidence disputing the substantive allegations. Hardy v. State, — S.W.3d —, 2010 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 19, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 772 (Tenn. Aug. 25, 2010), cert. denied, Hardy v. Tenn. Dep't of Health, 179 L. Ed. 2d 500, 131 S. Ct. 1603, 79 U.S.L.W. 3512, 2011 U.S. LEXIS 1953 (U.S. 2011).

Tennessee Department of Health satisfied due process because the steps it took were reasonably calculated to apprise the doctor of the charges against him and of the hearing at which his medical license was revoked; the Department advised the doctor of the alleged conduct that warranted action against his license and provided him with an opportunity to show compliance and mailed the notice of the alleged conduct to the doctor at the address shown on his last license renewal application. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

24. —Public Offices and Officers.

The legislature can abolish any office, if there be no constitutional restriction in the way, and thereby abrogate the duties attached, and as an incident thereto the rights of the officer cease, since there is nothing to which they can attach. Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 1916 Tenn. LEXIS 109 (1916).

There is a public necessity that the legislature shall have power to abolish an office when it has ceased to be a necessity to the public, or when it forms a part of a scheme of municipal government, and its abolition is necessary, or so deemed by the legislature, in order that a better form of municipal benefit may be conferred. Therefore, a statute abolishing city offices in amending the city charter is not unconstitutional as violative of Tenn. Const. art. I, § 8 or the federal constitution. Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 1916 Tenn. LEXIS 109 (1916).

In the exercise of the state's sovereignty over municipalities, the legislature may abolish existing city offices held by incumbents, and this, if done by a statute, in all other respects constitutional, puts an end to the rights and privileges of the incumbent officers, except to receive compensation for services already rendered. Tenn. Const. art. I, § 8 is no barrier to this legislative power. Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62, 1916 Tenn. LEXIS 109 (1916); State ex rel. Linkous v. Morris, 136 Tenn. 157, 189 S.W. 67, 1916 Tenn. LEXIS 110 (1916).

Act depriving clerks of courts, sheriffs, registers of deeds, masters in chancery, and county trustees throughout the state of fees and providing salaries for only a part of them unconstitutionally deprives part of compensation, contrary to “the law of the land.” Hickman v. Wright, 141 Tenn. 412, 210 S.W. 447, 1918 Tenn. LEXIS 104 (1919).

Statute, abolishing fee system in counties of over 190,000 population, which applies only to one county, under which officials of that county would be required to render some services as officials of other counties who are permitted to retain fees collected, is invalid as arbitrary and partial and as suspending general law for benefit of one county. State ex rel. Shelby County v. Stewart, 147 Tenn. 375, 247 S.W. 984, 1922 Tenn. LEXIS 50 (1922).

The legislature may adopt a new system of government for municipal corporation or for such institutions and agencies of the state as are not properly protected by the constitution, and may abolish the old plan, and the offices created for the administration of the old plan, in whole or in part, and the rights of officers must give way to what the legislature conceives to be the public interest, without violation of Tenn. Const. art. I, § 8 or the federal constitution, assuming that such change is real and not colorable, for the purpose of putting one set of men out of office and another set in office. House v. Creveling, 147 Tenn. 589, 250 S.W. 357, 1922 Tenn. LEXIS 66 (1922).

Though statute deprives members of the board of education of a county of their office, it is not for that reason unconstitutional, where the change is brought about by a change in the manner of selection of the members of such board. Holland v. Parker, 159 Tenn. 306, 17 S.W.2d 926, 1928 Tenn. LEXIS 86 (1929).

An act guaranteeing to an official a certain salary annually with right to fees in excess of that amount is unconstitutional as arbitrary classification and discriminatory where confined in its application to one county by reference to the federal census, such officers in other counties being limited to a maximum amount by general law. Harbert v. Mabry, 166 Tenn. 290, 61 S.W.2d 652, 1933 Tenn. LEXIS 94 (1933).

The legislature may alter the membership or duties of an agency created by it, if it does not legislate one set of members out of office and another set into office, and statute increasing the state board of elections, thus lessening power of former members, does not violate Tenn. Const. art. I, § 8. Waldauer v. Britton, 172 Tenn. 649, 113 S.W.2d 1178, 1937 Tenn. LEXIS 111 (1938).

T.C.A. § 5-14-114's classification of a county official's conflict of interest with regard to a county contract as a Class D felony in only those counties adopting the County Purchasing Law of 1957 is purely arbitrary and violates Tenn. Const. art. I, § 8. State v. Whitehead, 43 S.W.3d 921, 2000 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. 2000).

25. —Deprivation of Property.

One cannot be deprived of vested rights by a legislative act, and the rights of two individuals in judicial conflict cannot be determined by a legislative act. Williams v. Register of West Tennessee, 3 Tenn. 213, 1 Cooke, 1812 Tenn. LEXIS 59 (1812); Officer v. Young, 13 Tenn. 320, 1833 Tenn. LEXIS 182 (1833); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Reynolds v. Baker, 46 Tenn. 221, 1869 Tenn. LEXIS 54 (1869); Southern R. Co. v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A. (n.s.) 828, 1912 Tenn. LEXIS 54 (1912).

There can be no reasonable classification in legislation by which one man can, without his consent, be deprived of his property for the benefit of another; and a statute cannot be saved from such unconstitutionality, by reason of any classification made under Tenn. Const. art. XI, § 8. McConnell v. Bell, 121 Tenn. 198, 114 S.W. 203, 1908 Tenn. LEXIS 16 (1908).

An act, requiring employment of a mine foreman in every mine to perform duties required by statute to keep the mine safe, which makes the foreman the agent of the owner or operator so as to render the owner or operator liable to miners for negligence of the foreman, held not violative of Tenn. Const. art. I, § 8 as depriving the owner or operator of his property contrary to the law of the land. Ducktown Sulphur, Copper & Iron Co. v. Galloway, 262 F. 669, 1920 U.S. App. LEXIS 1593 (6th Cir. Tenn. 1920).

Act creating county board of education in each county is not violative of Tenn. Const. art. I, § 8 as divesting property rights vested under an earlier act creating a special school district and vesting control of the school therein in a board of trustees, where the later act is construed as not repealing the earlier. Oneida High School v. Scott County Board of Education, 145 Tenn. 306, 237 S.W. 52, 1921 Tenn. LEXIS 81 (1921).

The provisions of Tenn. Const. art. I, § 8 against depriving of property without due process of law are not violated by an act providing for opening building and improving a city's highways and for improvement districts. The act is within the constitutional authority of municipalities to levy taxes for corporate purposes. Jordan v. City of Cleveland, 148 Tenn. 337, 255 S.W. 377, 1922 Tenn. LEXIS 89 (1922).

The owner of a grocery store who cut his own meat and who refused to join a butcher's union or work union hours was deprived of his liberty and property by the conduct of the union in picketing his store and advertising that he was unfair to organized labor so that he was entitled to enjoin such conduct by the union. Lyle v. Amalgamated Meat Cutters & Butchers Workmen, 174 Tenn. 222, 124 S.W.2d 701, 1938 Tenn. LEXIS 83 (1939), overruled, Ira A. Watson Co. v. Wilson, 187 Tenn. 402, 215 S.W.2d 801, 1948 Tenn. LEXIS 445 (1948).

Employer was not entitled to enjoin threatened payment of unemployment compensation to employees on strike on the ground that such payment amounted to confiscation of property of employer without due process of law since suit was premature as employer had not exhausted his administrative remedies, and since payment might never be paid as it was dependent upon a contingency which might not happen. Tennessee Enamel Mfg. Co. v. Hake, 183 Tenn. 615, 194 S.W.2d 468, 1946 Tenn. LEXIS 245 (1946).

If constitutional question involved in appeal is alleged to be that property of petitioner was taken in violation of due process the property taken must be the direct result of denial of due process. Tennessee C. R. Co. v. Pharr, 183 Tenn. 658, 194 S.W.2d 486, 1946 Tenn. LEXIS 249 (1946).

Contract between city and water company which authorized water company to discontinue water service of water users who failed to pay sewer service charge did not deprive water users of property and property rights without due process of law since water and sewer systems were interlocking. Patterson v. Chattanooga, 192 Tenn. 267, 241 S.W.2d 291, 1951 Tenn. LEXIS 401 (1951).

Where there was no established practice at a private college to make decisions on tenure other than during the final year of probation, teacher denied reemployment for the subsequent year during his final year of probation did not have a reasonable expectancy of reemployment nor had he achieved a tentative tenure, so that he was not entitled to formal notice and hearing and a showing of cause for the nonrenewal of his employment. Johnson v. Christian Bros. College, 565 S.W.2d 872, 1978 Tenn. LEXIS 552 (Tenn. 1978).

Ordinances regulating the use and development of property are generally held to lie within the police power of municipal corporations, and their adoption, while frequently affecting property values and restricting use of property, has generally not been considered to amount to a taking under the power of eminent domain or to constitute retrospective legislation within the meaning of the state constitution. Draper v. Haynes, 567 S.W.2d 462, 1978 Tenn. LEXIS 604 (Tenn. 1978).

26. — —Confiscation and Forfeiture.

Except in well-known cases, recognized at common law, of great emergencies, such as the demolition of a house in a city to check the progress of a fire, etc., neither dogs nor any other property shall be destroyed or forfeited without a previous adjudication to that effect made upon a trial had according to the course of the common law. It cannot be done by mere legislation, but only by adjudication, with the well-known exceptions above mentioned. Phillips v. Lewis, 3 Shan. 230 (1877).

A party by his conduct cannot so forfeit a right that it may be taken from him without judicial proceedings, in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative acts, and confiscations without a judicial hearing, after due notice, would be void, as not being due process of law. State v. Del Rio Turnpike Co., 131 Tenn. 600, 175 S.W. 1143, 1914 Tenn. LEXIS 129 (1914).

Judgment ordering padlocking of residence as public nuisance for alleged unlawful sale of intoxicating liquors did not constitute an unconstitutional confiscation or forfeiture of property. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

Forfeiture proceedings did not violate claimant's due process because they were presided over by the commissioner of safety since neither the commissioner nor his department could have benefited from the proceeding. Jones v. Greene, 946 S.W.2d 817, 1996 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1996).

A 41-month delay between the seizure of property and the forfeiture hearing caused by protracted litigation over claimant's right to the property did not violate his due process rights. Jones v. Greene, 946 S.W.2d 817, 1996 Tenn. App. LEXIS 772 (Tenn. Ct. App. 1996).

State provided sufficient proof that the detective complied with this section when he delivered the notice of seizure by certified mail to defendant where the detective explained the need to get an accurate count of the money at a bank prior to providing notice of the seizure to defendant, defendant did not claim that he did not receive the notice of the seizure, and the record showed that he had sufficient time to file a pretrial motion to dismiss the forfeiture and to challenge the forfeiture of the funds in a post-trial hearing. State v. Tuttle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 8, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 5, 2015), aff'd in part, rev'd in part, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

Trial court did not err in finding that a city was immune from an inmate's constitutional claims because the inmate was not in a procedural posture to petition for return of his seized property through a civil action, and no forfeiture proceeding had been initiated against his personal property; therefore, the inmate was asserting a claim against the city for violation of his civil rights under the Fourth, Fifth, and Fourteenth Amendments. Lankford v. City of Hendersonville, — S.W.3d —, 2018 Tenn. App. LEXIS 165 (Tenn. Ct. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 458 (Tenn. July 18, 2018).

Department sent notice of forfeiture proceedings via certified mail to the driver at the address he listed when registering the vehicle, and because he did not update his information to show he had moved, the department did not know he no longer lived at that address; the notice indicated that the time period to file a claim began to run on the date he actually received the notice, but this was misleading, such that the notice was insufficient to satisfy due process. Nicholas v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2018 Tenn. App. LEXIS 465 (Tenn. Ct. App. Aug. 13, 2018).

Thirty-day time period to file a claim commences on the date a party is given notice satisfying statutory and constitutional requirements, not on the date that the notice was received by a party. Nicholas v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2018 Tenn. App. LEXIS 465 (Tenn. Ct. App. Aug. 13, 2018).

Co-owner of a mobile home lacked standing to contest the forfeiture of currency that was properly seized as proceeds from drug trafficking during a search of the mobile home, which was leased to the co-owner's adult child, because the co-owner failed to demonstrate an ownership interest in the currency. The trial court's application of an incorrect standard of review was harmless error as, under the correct standard of review, the evidence preponderated in favor of the administrative law judge's determination that the co-owner lacked standing. Tubbs v. Long, — S.W.3d —, 2020 Tenn. App. LEXIS 198 (Tenn. Ct. App. Apr. 28, 2020).

27. — —Taking for Public Use.

Though the constitution does not expressly prohibit the taking of private property for private use, yet it has been held to do so by implication, and, therefore, a statute which takes the private property of one person to give to another for the latter's private use cannot, under Tenn. Const. art. I, § 8, be “the law of the land,” however general in form and application it may be. Harding v. Goodlett, 11 Tenn. 40, 11 Tenn. 41, 1832 Tenn. LEXIS 15 (1832); Clack v. White, 32 Tenn. 540, 1852 Tenn. LEXIS 113 (1852); Memphis Freight Co. v. Memphis, 44 Tenn. 419, 1867 Tenn. LEXIS 65 (1867); Reynolds v. Baker, 46 Tenn. 221, 1869 Tenn. LEXIS 54 (1869); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Ryan v. Louisville & N. Terminal Co., 102 Tenn. 111, 50 S.W. 744, 1898 Tenn. LEXIS 12 (1899); Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Alfred Phosphate Co. v. Duck River Phosphate Co., 120 Tenn. 260, 113 S.W. 410, 1907 Tenn. LEXIS 47, 22 L.R.A. (n.s.) 701 (1907).

City's act of taking out group insurance for employees in its water department and paying therefor with funds of that department is not an appropriation of public funds for a private purpose contrary to Tenn. Const. art. I, § 8. State ex rel. Thompson v. City of Memphis, 147 Tenn. 658, 251 S.W. 46, 1922 Tenn. LEXIS 74, 27 A.L.R. 1257 (1922).

Act conferring right of eminent domain on cemeteries in counties of such population standard as to make the act applicable to cemetery corporation in only one county is based on an unreasonable classification and is violative of Tenn. Const. art. I, § 8. Trustees of New Pulaski Cemetery v. Ballentine, 151 Tenn. 622, 271 S.W. 38, 1924 Tenn. LEXIS 90 (1925).

Where appropriate compensation had originally been paid, claimant of strip of land was not entitled to maintain suit against state to quiet title to land taken by condemnation on theory that such land had been abandoned. A. L. Kornman Co. v. Moulton, 210 Tenn. 491, 360 S.W.2d 30, 1962 Tenn. LEXIS 311 (1962), appeal dismissed, A. L. Kornman Co. v. Pack, 373 U.S. 63, 83 S. Ct. 1118, 10 L. Ed. 2d 197, 1963 U.S. LEXIS 1699 (1963).

Due process prohibits the taking of an individual's property by condemnation unless it is for a public purpose. Johnson City v. Cloninger, 213 Tenn. 71, 372 S.W.2d 281, 1963 Tenn. LEXIS 470 (1963).

There are at least three general classes of eminent domain cases in which the use which will meet the “public use” criterion is measured by different standards depending on the character of the condemnor: (1) Condemnation by the state or municipality which it will carry out and use or operate; (2) Condemnation by a public service corporation which the state will regulate and which will provide some necessity to the public; and (3) Condemnation by or for the use of a private individual or corporation which is necessary for the public welfare. Johnson City v. Cloninger, 213 Tenn. 71, 372 S.W.2d 281, 1963 Tenn. LEXIS 470 (1963).

Taking of land for municipal golf course as part of public park was a taking for a public purpose. Johnson City v. Cloninger, 213 Tenn. 71, 372 S.W.2d 281, 1963 Tenn. LEXIS 470 (1963).

28. —Rates.

In determining whether rate is confiscatory it is not the actual rate of return which is being realized by company but whether or not the return that is being realized is just and reasonable under proven circumstances taking into consideration experiences of the past in reference to experiences of the future. Southern Bell Tel. & Tel. Co. v. Tennessee Public Service Com., 202 Tenn. 465, 304 S.W.2d 640, 1957 Tenn. LEXIS 413 (1957).

Where rates set by the public service commission have passed beyond arbitrariness, capriciousness or are an abuse or unwarranted exercise of discretion, a judicial determination of confiscation may be made and relief provided. United Inter-Mountain Tel. Co. v. Public Service Com., 555 S.W.2d 389, 1977 Tenn. LEXIS 627 (Tenn. 1977); Public Service Com. v. General Tel. Co., 555 S.W.2d 395, 1977 Tenn. LEXIS 629 (Tenn. 1977).

29. Law of the Land — Due Process.

It was manifestly the intention of the constitution that summary proceedings, such as the people had been accustomed to, should not be inhibited. The phrase “the law of the land” in Tenn. Const. art. I, § 8 communicates the idea of such proceedings of the courts as had been customary before the constitution, or should thereafter be provided conformably to the spirit of those habits, and of the common law. M'Carroll's Lessee v. Weeks, 2 Tenn. 215, 1814 Tenn. LEXIS 1 (1814); M'Carrol's Lessee v. Weeks, 6 Tenn. 246, 1814 Tenn. LEXIS 47 (1814).

The government could not possibly be administered, had the phrase “the law of the land” been left out of the constitution. Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827).

Courts of chancery every day, by process without the judgment of their peers, deprive men of their privileges, liberties, and property, and disseize them of their freeholds, and yet act within the pale of the constitution, because justice is administered according to “the law of the land.” Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827).

A statute depriving one of life, liberty, or property may be valid, if it is, in realty, “the law of the land” as to the subjects embraced in it. Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900).

Former section 36-2-106 [repealed], insofar as it provided that an alleged father shall not be compelled to give evidence in a bastardy proceeding, violated the equal protection clause of U.S. Const. amend. 14; the law of the land provision of Tenn. Const. art. I, § 8 and the privileges, immunities and exemptions of Tenn. Const. art. XI, § 8. Tennessee Dep't of Human Services v. Vaughn, 595 S.W.2d 62, 1980 Tenn. LEXIS 417 (Tenn. 1980).

Since neither the plaintiff miners nor their predecessors in title was ever conveyed the legal right to strip mine, § 66-5-102 and former § § 1544(a)(6)(B) (now § 59-8-205(a)(1)(F)) concerning surface mining of coal did not unconstitutionally affect plaintiffs' contract rights or deprive them of property without due process, for the statutes merely codified the common law governing the construction of deeds and other such contracts. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

To permit the state, for enhancement of sentence, to present evidence sufficient to convince the jury beyond a reasonable doubt that the defendant had committed other murders for which he has not yet been convicted, and to the very jury that has just returned a guilty verdict for first degree murder for a later offense, violates the concept of fundamental fairness embodied in due process of law, and would thus be invalid under the law of the land provision. State v. Bobo, 727 S.W.2d 945, 1987 Tenn. LEXIS 1057 (Tenn. 1987), cert. denied, Bobo v. Tennessee, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155, 1987 U.S. LEXIS 3866 (1987).

The practice of permitting a privately retained prosecutor to assist a district attorney general, or his assistant, as authorized by T.C.A. § 8-7-401, does not violate Tenn. Const. art. I, § 8. State v. Bennett, 798 S.W.2d 783, 1990 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 372 (Tenn. Oct. 15, 1990), cert. denied, Bennett v. Tennessee, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98, 1991 U.S. LEXIS 2747 (1991).

The dismissal of the appellant's suit on the ground it was barred by the statute of limitations, absent additional facts, did not deny the appellant due process of law. Passarella v. State, 891 S.W.2d 619, 1994 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. 1994), superseded by statute as stated in, Baxter v. State,—S.W.3d—1998 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App 1998), superseded by statute as stated in, State v. Newman,—S.W.3d— 1998 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App 1998), superseded by statute as stated in, Martin v. Carlton, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1106 (Tenn. Crim. App 2005), superseded by statute as stated in, Talal v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. May 23, 2006).

T.C.A. § 42-8-101 et seq., prohibiting the use of certain land as a heliport, does not violate due process or equal protection under the federal or state constitutions. Riggs v. Burson, 941 S.W.2d 44, 1997 Tenn. LEXIS 126 (Tenn. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. LEXIS 174 (Tenn. 1997), cert. denied, 139 L. Ed. 2d 380, 118 S. Ct. 444, 522 U.S. 982, 1997 U.S. LEXIS 6925 (1997).

To the extent a party asserting that a law violates Tenn. Const. art. I, § 8 and the due process clause of the federal constitution fails to identify differences between the two sections, both claims will be analyzed under the same standard. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Quasi-governmental hospital district did not deprive doctors of their due process rights by denying current memberships and revoking former membership in provider networks. Eye Clinic, P.C. v. Jackson-Madison County Gen. Hosp., 986 S.W.2d 565, 1998 Tenn. App. LEXIS 488 (Tenn. Ct. App. 1998).

Child support guidelines did not violate the equal protection clauses of the state and federal constitutions just because they looked to the obligor's income to determine the proper calculation, as the guidelines allow for deviation from the calculation if it is in the best interest of the child. Gallaher v. Elam, 104 S.W.3d 455, 2003 Tenn. LEXIS 337 (Tenn. 2003).

In a felony murder case, a court did not err by denying defendant's motion for a continuance where defendant completely failed to demonstrate that the findings or testimony of expert witnesses would have been favorable to the defense. In short, the defendant failed to establish that the trial court abused its discretion, because there was no indication that he was denied a fair trial or that the result of the proceeding would have been different had a continuance been granted. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

In a second degree murder case, the trial court's failure to charge the jury on the lesser-included offense of facilitation of second degree murder violated defendant's right to a jury trial, a right that is essential to the concept of due process, as defendant's failure to request the instruction did not waive his right to have the jury so instructed, and evidence existed that reasonable minds could accept as to facilitation of second degree murder, because there was no proof establishing which of four men involved in the beating death of the victim struck the fatal blow. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Defendant's claim of a violation of his due process rights failed because the theory of guilt presented by the prosecution at the trial of his codefendant was not fundamentally inconsistent with and inherently contradictory to evidence and argument presented by the prosecution at his trial. The prosecution at each trial sought to establish each defendant's criminal responsibility for first-degree murder and especially aggravated kidnapping by showing that each defendant held a leadership position in a gang and that, acting in his leadership role, each defendant ordered and otherwise directed gang members to kidnap and murder the victim. State v. Robinson, 146 S.W.3d 469, 2004 Tenn. LEXIS 843 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 912 (Tenn. 2004), cert. denied, Robinson v. Tennessee, 126 S. Ct. 1429, 164 L. Ed. 2d 132, 546 U.S. 1214, 2006 U.S. LEXIS 1839 (2006).

Court erred by denying a motion to withdraw a nolo contendere plea because it was not knowing and voluntary where the court failed to discuss the nature of the offense to which defendant was pleading, and defendant consistently maintained that he did not understand the legal definition of “facilitation” when he entered the plea. He maintained that he had repeatedly advised his attorney that he was willing to enter the nolo contendere plea to facilitation only if it meant that he had nothing to do with the murder, and defendant further consistently maintained that he entered the plea believing it meant that he had been “present at the crime scene and witnessed the murder.” State v. Crowe, 168 S.W.3d 731, 2005 Tenn. LEXIS 577 (Tenn. 2005), rehearing denied, 168 S.W.3d 731, 2005 Tenn. LEXIS 639 (Tenn. 2005).

T.C.A. § 50-6-204(d)(5) did not violate substantive due process because the creation of the medical impairment rating process, designed to minimize costs and expedite the resolution of claims by injured workers, did not qualify as an arbitrary, or conscience shocking exercise of the legislature's authority. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

There was no substantive due process issue, as reviewing the attorney's sanction to ensure uniformity of discipline was not arbitrary or conscience-shocking. In re Walwyn, 531 S.W.3d 131, 2017 Tenn. LEXIS 457 (Tenn. Aug. 4, 2017).

30. —Defined.

“The law of the land” is a general and public law, equally binding, under similar circumstances, or in some aspects of it, upon every member of the community, or which extends to and embraces all persons who are in, or who may come into, the like situation and circumstances, and which is to be administered in the due course of recognized and established legal proceedings, and which secures the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice, and must not be arbitrary and unusual. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831); Sheppard v. Johnson, 21 Tenn. 285, 1841 Tenn. LEXIS 1 (1841); State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869); State ex rel. Roane County v. Burnett, 53 Tenn. 186, 1871 Tenn. LEXIS 341 (Tenn. Sep. 30, 1871); McKinney v. Memphis Overton Hotel Co., 59 Tenn. 104, 1873 Tenn. LEXIS 34 (1873); Myers v. Park, 55 Tenn. 550, 1875 Tenn. LEXIS 2 (1875); Wallace v. County Court of Tipton County, 3 Shan. 542 (1875), overruled on other grounds, Lauderdale County v. Fargason, 75 Tenn. 153, 1881 Tenn. LEXIS 91 (1881), questioned, Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904), overruled on other grounds, Lauderdale County v. Fargason, 75 Tenn. 153, 1881 Tenn. LEXIS 91 (1881); Knox v. State, 68 Tenn. 202, 1877 Tenn. LEXIS 18 (1877).

Our earlier cases defined the phrase “the law of the land” to mean a general and public law, equally binding upon every member of the community under similar circumstances. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831); Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Sheppard v. Johnson, 21 Tenn. 285, 1841 Tenn. LEXIS 1 (1841); Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853); Pope v. Phifer, 50 Tenn. 682, 1871 Tenn. LEXIS 126 (1871), overruled, Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229, 1912 Tenn. LEXIS 50 (1912); Brown v. Haywood, 51 Tenn. 357, 1871 Tenn. LEXIS 175 (1871); State ex rel. Roane County v. Burnett, 53 Tenn. 186, 1871 Tenn. LEXIS 341 (Tenn. Sep. 30, 1871); Wallace v. County Court of Tipton County, 3 Shan. 542 (1875), overruled on other grounds, Lauderdale County v. Fargason, 75 Tenn. 153, 1881 Tenn. LEXIS 91 (1881), questioned, Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 407 (1877); Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

The phrase “the law of the land,” correctly defined, means a law which embraces all persons who are in, or who may come into, the like situation and circumstances. It may be made to extend to all citizens, or be confined, under proper limitations, to particular classes. If the class be a proper one, it matters not how few the persons are who may be included in it. If all who are in, or who may come into, the like situation and circumstances be embraced in the class, the law is general, and not partial. Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842); Alexandria v. Dearmon, 34 Tenn. 104, 1854 Tenn. LEXIS 20 (1854); Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 15 L. Ed. 372, 1855 U.S. LEXIS 698 (1855); State v. Rauscher, 69 Tenn. 96, 1878 Tenn. LEXIS 51 (1878); Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); Maney v. State, 74 Tenn. 218, 1880 Tenn. LEXIS 236 (1880); County of Tipton v. Locomotive Works, 103 U.S. 523, 26 L. Ed. 340, 1880 U.S. LEXIS 2150 (1880); Hatcher v. State, 80 Tenn. 368, 1883 Tenn. LEXIS 181 (1883); Woodard v. Brien, 82 Tenn. 520, 1884 Tenn. LEXIS 154 (1884); Dent v. West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623, 1889 U.S. LEXIS 1669 (1889); Caldwell v. Texas, 137 U.S. 692, 11 S. Ct. 224, 34 L. Ed. 816, 1891 U.S. LEXIS 2059 (1891); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); Gulf, Colo. & S.F. Ry. v. Ellis, 165 U.S. 150, 17 S. Ct. 255, 41 L. Ed. 666, 1897 U.S. LEXIS 1957 (1897); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, 1897 Tenn. LEXIS 76 (1897); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); King v. Mullins, 171 U.S. 404, 18 S. Ct. 925, 43 L. Ed. 214, 1898 U.S. LEXIS 1613 (1898); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 22 S. Ct. 30, 46 L. Ed. 92, 1901 U.S. LEXIS 1256 (1901); State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901), dismissed, Tennessee v. Condon, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709, 1903 U.S. LEXIS 1325 (1903); Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

By the phrase “the law of the land” is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. State v. Staten, 46 Tenn. 233, 1869 Tenn. LEXIS 55 (1869); Knox v. State, 68 Tenn. 202, 1877 Tenn. LEXIS 18 (1877); Phillips v. Lewis, 3 Shan. 230 (1877); Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S.W. 414, 1889 Tenn. LEXIS 28, 6 L.R.A. 207 (1889) (in dissenting opinion); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780, 1898 U.S. LEXIS 1501 (1898).

The phrase “the law of the land,” used in Tenn. Const. art. I, § 8, and the phrase “due process of law,” used in U.S. Const. amends. 5 and 14, § 1, are synonymous phrases meaning one and the same thing, and that which in statutes is violative of the one is violative of the other. Illinois C. R. Co. v. Crider, 91 Tenn. 489, 19 S.W. 618 (1892); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901), dismissed, Tennessee v. Condon, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709, 1903 U.S. LEXIS 1325 (1903); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913). See Tenn. Const. art. I, § 17State v. Hale, 840 S.W.2d 307, 1992 Tenn. LEXIS 507 (Tenn. 1992), rehearing denied, State v. Eugene Hale, — S.W.2d —, 1992 Tenn. LEXIS 558 (Tenn. Sept. 8, 1992).

The phrase “the law of the land,” means the general law. State ex rel. Hamby v. Cummings, 166 Tenn. 460, 63 S.W.2d 515, 1933 Tenn. LEXIS 100 (1933).

The “law of the land” provision of Tenn. Const. art. I, § 8 is synonymous with the “due process of law” provisions of U.S. Const. amends. 5 and 14. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965); Kittrell v. Kittrell, 56 Tenn. App. 584, 409 S.W.2d 179, 1966 Tenn. App. LEXIS 237 (Tenn. Ct. App. 1966); Dearborne v. State, 575 S.W.2d 259, 1978 Tenn. LEXIS 687 (Tenn. 1978); Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

31. —Scope and Application.

The phrase “the law of the land,” as used in Tenn. Const. art. I, § 8, does not mean a statute passed for the purpose of working the wrong. Such construction would render the restriction absolutely nugatory, and turn Tenn. Const. art. I, § 8 into mere nonsense, and would permit the legislature to do the prohibited wrong by a statute. Every enacted statute is not “the law of the land.” Phillips v. Lewis, 3 Shan. 230 (1877); Knox v. State, 68 Tenn. 202, 1877 Tenn. LEXIS 18 (1877).

The difficulty, if not the impossibility, of formulating a definition of the phrase “the law of the land,” that is at once perspicuous, comprehensive, and satisfactory, is recognized and conceded by the courts, and it is wiser to ascertain the intent and application of so important a phrase by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded; for it is impossible to formulate a definition that will, at all times, include everything that may be or may come within, and exclude everything that may be or fall without, the true meaning of the phrase “the law of the land.” Davidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616, 1877 U.S. LEXIS 1632 (1877); Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780, 1898 U.S. LEXIS 1501 (1898); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

A law that violates any provision of the constitution, whether the provision be express or implied, cannot be “the law of the land,” because an unconstitutional law is, in fact, no law at all. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897) (in the dissenting opinion).

Legislation, general in its operation upon the subjects to which it relates, and enforceable in the usual modes established in the administration of government with respect to kindred matters, that is, by process or proceedings adapted to the nature of the case, is “the law of the land.” Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

All valid laws, statutory and otherwise, now existing in this state, constitute the aggregate body of our present “law of the land,” and each part, each separate law that is complete in itself, may properly be called “the law of the land” as to the matter or matters embraced therein. Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901).

The phrase “the law of the land” was not employed in Tenn. Const. art. I, § 8, with reference to the then existing laws only, but with reference to any and every valid law that might be in existence at any particular time, in the near or remote future, when an effort might be made to impair or take away the right of life, liberty, or property. Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901).

The phrase “the law of the land,” as used in the constitution, did not embrace, as a fixed and immovable system, the common law in existence at the adoption of the constitution. It had reference to the common law and statutes then existing in this state; but this does not mean that the legislature cannot alter, change, or abolish the system of law then in force, and it may do so, unless it is prohibited from so doing, by the constitution of this state or that of the United States, either expressly or by fair and necessary implication. Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

Allegation that trial in the juvenile court by a judge who was not a lawyer has deprived the juvenile relators of their rights under the “law of the land” clause of Tenn. Const. art. I, § 8, raised a fundamental issue which could properly be raised by the remedy of habeas corpus. State ex rel. Anglin v. Henderson, 575 S.W.2d 284, 1979 Tenn. LEXIS 412 (Tenn. 1979), overruled in part, Archer v. State, 851 S.W.2d 157, 1993 Tenn. LEXIS 143 (Tenn. 1993).

The applicability of the law of the land clause of the state constitution is a fundamental issue which properly may be raised on habeas corpus. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

In the context of a juvenile commitment, “the law of the land” provision of Tenn. Const. art. I, § 8, does not permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates to confine him or deprive him of his liberty. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 1980 Tenn. LEXIS 415 (Tenn. 1980).

The due process provisions of the constitutions of the United States or of the state of Tennessee do not require pretrial discovery in a case seeking termination of parental rights pending in the juvenile court. Hearn v. Pleasure, 624 S.W.2d 556, 1981 Tenn. App. LEXIS 552 (Tenn. Ct. App. 1981).

The supreme court of Tennessee, in its capacity as the final arbiter of the constitution of Tennessee, is only bound by the interpretations of the due process clause of the United States constitution to the extent that they establish a minimum level of protection; that conformity is mandated by the principles of federalism embodied in the supremacy clause of the United States constitution. In the interpretation of the constitution of Tennessee, the Tennessee supreme court is always free to expand the minimum level of protection mandated by the federal constitution. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

A fundamental requirement of due process is notice and an opportunity to be heard. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

In determining what process is due in a particular situation, three factors must be considered: (1) The private interest affected by the official action; (2) The risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

The component parts of due process are designed to reach a substantively correct result. Elaborate procedures at one stage may compensate for deficiencies at other stages. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

The fundamental protection afforded by the due process provision is protection against state action and a private actor is not required to conform to the requirements of due process before taking action. Bryant v. Tenet, Inc., 969 S.W.2d 923, 1997 Tenn. App. LEXIS 843 (Tenn. Ct. App. 1997).

Even though no statute or constitutional provision requires that a municipal judge be a licensed attorney, the due process protections of Tenn. Const. art. I, § 8 prohibit a non-attorney judge from presiding over a criminal proceeding that may result in a citizen's incarceration. City of White House v. Whitley, 979 S.W.2d 262, 1998 Tenn. LEXIS 573 (Tenn. 1998).

County had a rational basis for increasing a circuit court clerk's salary, when that person was the clerk of two courts, and not increasing the salary of the person who was the clerk and master of the chancery court and the clerk of the probate court because the duties and responsibility associated with the circuit court clerk position were far greater than those associated with the master and clerk position. Sneyd v. Washington County, 387 S.W.3d 1, 2012 Tenn. App. LEXIS 437 (Tenn. Ct. App. June 28, 2012), appeal denied, Sneyd v. Wash. County, — S.W.3d —, 2012 Tenn. LEXIS 849 (Tenn. Nov. 20, 2012).

State action is required before there can be a violation of the law of the land provision, Tenn. Const. art. I, § 8, and the open courts and the right to a remedy clauses, Tenn. Const. art. I, § 17, because those provisions limit the actions of the government, but not private entities; private non-judicial foreclosure by auction does not involve state action. CitiMortgage, Inc. v. Drake, 410 S.W.3d 797, 2013 Tenn. App. LEXIS 116 (Tenn. Ct. App. Feb. 21, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 663 (Tenn. Aug. 14, 2013).

Given the existing procedural safeguards applicable to parental termination proceedings, the Tennessee Supreme Court declines to hold that securing the constitutional right of parents to fundamentally fair procedures requires adoption of an additional procedure, subsequent to or separate from an appeal as of right, by which parents may attack the judgment terminating parental rights based upon ineffective assistance of appointed counsel. In re Carrington H., 483 S.W.3d 507, 2016 Tenn. LEXIS 49 (Tenn. Jan. 29, 2016).

Due process unquestionably requires States to provide parents with fundamentally fair procedures, but it does not require States to ignore the other interests at stake in parental termination proceedings; by refusing to import criminal law post-conviction type remedies, the Tennessee Supreme Court does not at all disregard the well-established constitutional principle precluding the termination of parental rights except upon fundamentally fair procedures. In re Carrington H., 483 S.W.3d 507, 2016 Tenn. LEXIS 49 (Tenn. Jan. 29, 2016).

Petitioner had a hearing before the Tennessee Board of Probation and Parole that was not contingent upon his ability to pay any filing fees and had the ability to appeal the board's decision, and his appeal was denied because his allegations of misconduct were not substantiated; under the facts of this case, petitioner was not denied due process, and as applied in this case, the statute does not violate the Due Process Clause. Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 2017 Tenn. LEXIS 179 (Tenn. Mar. 23, 2017).

Trial court did not deny a father procedural due process because it held a telephonic, non-evidentiary hearing on a mother's motion for discretionary costs because it provided the father a meaningful opportunity to be heard; the father failed to cite to any authority supporting his contention that due process required an evidentiary hearing before awarding discretionary costs. Nelson v. Justice, — S.W.3d —, 2019 Tenn. App. LEXIS 36 (Tenn. Ct. App. Jan. 25, 2019).

Trial court's discretion to require a cash-only bond is constrained by the due process guarantees of the United States and Tennessee Constitutions. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Because the trial court did not properly ensure that a father possessed the key to his prison cell, the trial court violated the father's right to due process; the trial court had no competent evidence of what the father actually owed in child support or any evidence of the father's ability to pay the arrearage. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Terminated municipal employee failed to demonstrate that the employee had a property interest entitled to protection under either the Due Process Clause of the United States Constitution or the Law of the Land Clause of the Tennessee Constitution because the municipality's employee handbook, which included an explicit statement that the municipality did not intend for the procedures to be binding or constitute any type of contract, did not convert the employee's at-will employment into a property interest entitled to due process protection. Keller v. Casteel, — S.W.3d —, 2020 Tenn. LEXIS 258 (Tenn. June 12, 2020).

32. —Procedural Due Process.

In determining what procedural protections a particular situation demands, three factors must be considered: (1) The private interest at stake; (2) The risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute safeguards; and (3) The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Seals v. State, 23 S.W.3d 272, 2000 Tenn. LEXIS 347 (Tenn. 2000).

In a parental rights termination case, a mother was not denied due process where she had adequate notice of the hearing, she was present at the termination proceeding, she testified on her own behalf with the benefit and presence of counsel, and at all times during the termination proceeding received full assistance of counsel. In re S.Y., 121 S.W.3d 358, 2003 Tenn. App. LEXIS 130 (Tenn. Ct. App. 2003).

Court erred in finding that the parents, in a complex, extended dependency and neglect case, were not indigent and finding their seven children dependent and neglected and that the parents had committed severe child abuse; that finding could have led to termination of parental rights and the parents clearly had a right to appointed counsel if they were indigent. The parents were entitled to a thorough hearing in compliance with T.C.A. § 40-14-202 to determine if they were indigent and thus, entitled to appointed counsel under Tenn. Sup. Ct. R. 13(d)(2)(B). Tenn. Dep't of Children's Servs. v. David H., 247 S.W.3d 651, 2006 Tenn. App. LEXIS 193 (Tenn. Ct. App. Mar. 21, 2006).

Knoxville, Tenn., City Code § 17-210 made the owner of the vehicle responsible for a red light violation regardless of who was driving the vehicle, and at all times the city had the burden of proving every element of its case regardless of who was driving the vehicle; since the city at all times had to establish the necessary elements of its case by the requisite burden of proof, City Code § 17-210 did not violate the owner's due process rights. City of Knoxville v. Brown, 284 S.W.3d 330, 2008 Tenn. App. LEXIS 436 (Tenn. Ct. App. July 30, 2008), rehearing denied, — S.W.3d —, 2008 Tenn. App. LEXIS 813 (Tenn. Ct. App. Aug. 22, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 193 (Tenn. Feb. 17, 2009).

T.C.A. § 50-6-204(d)(5) did not violate procedural due process because the statute did not create a permanently irrebuttable presumption. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

Holding a sexually oriented nightclub vicariously liable for an entertainer's violation of a local ordinance did not violate procedural due process where the club was allowed to present evidence, the ordinance clearly indicated that a licensee's knowledge and powerlessness to prevent the violation were appropriate defenses, and material evidence in the record supported the conclusion. Howell v. Metro. Sexually Oriented Bus. Licensing Bd., 466 S.W.3d 88, 2014 Tenn. App. LEXIS 721 (Tenn. Ct. App. Nov. 5, 2014), appeal dismissed, — S.W.3d —, 2015 Tenn. LEXIS 187 (Tenn. Mar. 3, 2015).

Civil forfeiture of defendant's house was inappropriate because the evidence preponderated against the trial court's findings that the State of Tennessee filed a forfeiture warrant and a notice of seizure and forfeiture of conveyances in accordance with the statutory requirements, that the State filed its petition for forfeiture in compliance with the requirements, and that the State did not comply with the statutory procedural requirements in the forfeiture proceeding. State v. Sprunger, 458 S.W.3d 482, 2015 Tenn. LEXIS 177 (Tenn. Mar. 9, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. LEXIS 258 (Tenn. Mar. 16, 2015).

There was no due process violation in a trial court's finding that a family service worker was an unavailable witness, as the worker was on maternity leave, and directing that the worker's deposition be taken and admitted into evidence did not increase the risk of an erroneous decision. The parent had the opportunity to confront and question the worker in both a discovery deposition and in the subsequent deposition for proof and had the opportunity to rebut the testimony of the worker with the parent's own testimony. In re Bailey W., — S.W.3d —, 2016 Tenn. App. LEXIS 408 (Tenn. Ct. App. June 10, 2016).

Any due process violation associated with the failure to appoint counsel in a prior dependency and neglect proceeding involving a parent's children was remedied by the procedural protections provided to the parent as a part of the parental termination proceeding. In re Makenzie P., — S.W.3d —, 2016 Tenn. App. LEXIS 737 (Tenn. Ct. App. Sept. 30, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 897 (Tenn. Nov. 22, 2016).

State of Tennessee did not violate defendant's due process rights by failing to preserve clothing items which defendant shoplifted from a department store as evidence because the police did not have a duty to collect the clothing items and defendant did not present any evidence that the clothing items were exculpatory or material to defendant's defense. State v. Shotwell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 44 (Tenn. Crim. App. Jan. 21, 2016).

Court of appeals erred in determining that a correctional officer possessed a protected property interest in continued employment because the Tennessee Excellence, Accountability, and Management Act of 2012 gave the Tennessee Department of Correction (TDOC) the authority to dismiss any employee if it found the good of the service would be served; the officer and other similarly situated preferred service employees did not possess a property interest in their continued employment with the State. Tenn. Dep't of Corr. v. Pressley, 528 S.W.3d 506, 2017 Tenn. LEXIS 554 (Tenn. Sept. 14, 2017).

Plain reading of the Tennessee Excellence, Accountability, and Management Act of 2012 makes clear the Act does not expressly confer a property interest in continued employment on preferred service employees. Tenn. Dep't of Corr. v. Pressley, 528 S.W.3d 506, 2017 Tenn. LEXIS 554 (Tenn. Sept. 14, 2017).

Petition for writ of mandamus was properly dismissed as petitioner's constitutional rights to due process and state court access were not violated because the statute regarding application to testify before the grand jury did not establish a clear and specific duty on the part of the grand jury foreperson to meet with petitioner in prison or to cause him to be transported to testify before a grand jury panel; much of the manner in which the foreperson, in collaboration with the grand jury panel, was to determine whether the potential witness's knowledge warranted investigation by the grand jury was discretionary; and a writ of mandamus would not be a proper remedy as issuance of the writ would manifestly prejudice public interest. Willis v. Johnson, — S.W.3d —, 2018 Tenn. App. LEXIS 563 (Tenn. Ct. App. Sept. 27, 2018).

In a child custody action, the father was not deprived of procedural due process because he was not completely barred from participating at trial, introducing evidence, and cross-examining witnesses, and his proof and numerous motions were the reason the trial took two years Nelson v. Justice, — S.W.3d —, 2019 Tenn. App. LEXIS 35 (Tenn. Ct. App. Jan. 25, 2019).

Delay of more than 20 years between the murder and the issuance of the indictment did not violate defendant's right to due process of law because the now-deceased medical examiner's report included factual findings which could be interpreted by the current medical examiner, the deceased officers created reports that did not contradict any of the other officers' reports or testimony, the consumption of the DNA evidence was a result of duplicative testimony, and defendant admitted that he was not working on the day of the murder and therefore any work records were not relevant to his defense. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

Termination of an incarcerated father's parental rights was inappropriate because the trial court's application of the missing witness rule and the doctrine of unclean hands — neither of which was applicable — undermined the protections to which the father was entitled under the Due Process Clauses of the Federal and Tennessee Constitutions by virtue of the liberty interest at stake. In re Mattie L., — S.W.3d —, 2020 Tenn. App. LEXIS 152 (Tenn. Ct. App. Apr. 14, 2020).

33. —Imprisonment.

Imprisonment may be inflicted for failure to pay or secure fines, penalties, and costs for violation of city ordinances. Mosley v. Gallatin, 78 Tenn. 494, 1882 Tenn. LEXIS 213 (1882); Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890); O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449, 1908 Tenn. LEXIS 36, 127 Am. St. Rep. 1014 (1908).

An act requiring one convicted of a misdemeanor to pay, secure, or work out county and state expense fees of five dollars each in addition to other costs is not a taking of defendant's property without compensation or without due process of law in violation of Tenn. Const. art. I, § 8. McKee v. State, 142 Tenn. 173, 218 S.W. 233, 1919 Tenn. LEXIS 46 (1920).

Tenn. Const. art. I, § 8, which protects the citizen against imprisonment without an indictment and trial by jury, is not applicable to the administrative control of penal or other corrective institutions. Harwood v. State ex rel. Pillars, 184 Tenn. 515, 201 S.W.2d 672, 1947 Tenn. LEXIS 405 (1947).

Transfer of petitioner aged 16 by commissioner from reformatory to penitentiary on the ground that she was incorrigible did not violate due process since possibility of transfer was a part of punishment inflicted by court when she was sentenced to reformatory. Harwood v. State ex rel. Pillars, 184 Tenn. 515, 201 S.W.2d 672, 1947 Tenn. LEXIS 405 (1947).

Imposition of life term under former habitual criminal statute for recidivist forger did not violate defendant's equal protection rights under the state or federal constitutions. State v. Russell, 866 S.W.2d 578, 1991 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. 1991).

The automatic imposition of a life sentence upon a conviction of first degree murder, where the death penalty is not sought, is not arbitrary or irrational in violation of the equal protection clause. State v. Ray, 880 S.W.2d 700, 1993 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 1993).

Assignment of defendant to an institution where he had no opportunity to earn eligibility for sentence reduction by engaging in work programs was not a denial of equal protection since correction officials have broad discretion in the confinement of inmates and he had no right to particular assignment. France v. Bradley, 922 S.W.2d 118, 1995 Tenn. App. LEXIS 811 (Tenn. Ct. App. 1995).

Liberty interest was not created unless the disciplinary restraints being imposed on a prisoner were atypical in comparison to the ordinary incidents of prison life. Prisoner was not deprived of a liberty interest when he was punished with, inter alia, a 30-day sentence of punitive segregation, and involuntary administrative segregation. Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 2003 Tenn. LEXIS 721 (Tenn. 2003).

Where petitioner was fined, inter alia, five dollars for attempted escape, to be paid from his prison trust account, the government's interests, including fiscal and administrative burdens of providing additional process, outweighed the petitioner's interest in his five dollars. The de minimis nature of the fine made it immune from procedural due process requirements and at the very least, the amount of the fine certainly did not warrant any more process than he actually received. Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 2003 Tenn. LEXIS 721 (Tenn. 2003).

Citizen's allegation that she was imprisoned for days without a hearing, the opportunity to appear before a judge or a jury invoked her right to due process of law. Luna v. White Cnty., — S.W.3d —, 2015 Tenn. App. LEXIS 525 (Tenn. Ct. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 876 (Tenn. Oct. 15, 2015).

34. —Vagueness.

The uncertainty of a statute which will amount to the denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved, and a statute is not uncertain or vague when by the orderly processes of litigation it can be rendered sufficiently definite and certain for the purposes of judicial decision. Donathan v. McMinn County, 187 Tenn. 220, 213 S.W.2d 173, 1948 Tenn. LEXIS 427 (1948).

A criminal statute that forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violated due process. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

A noncriminal statute is not unconstitutionally vague so as to deny due process of law where the statute is set out in terms that an ordinary person exercising ordinary common sense can sufficiently understand and comply. Big Fork Mining Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 1981 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1981).

The punishment provisions for obscenity in § 39-6-1104 (repealed) are not unconstitutional and do not violate the equal protection and due process clauses of Tenn. Const. art. I, § 8 and U.S. Const. amend. 14. State v. Summers, 692 S.W.2d 439, 1985 Tenn. Crim. App. LEXIS 3007 (Tenn. Crim. App. 1985).

While the “capricious disregard of accepted standards of professional conduct” standard of T.C.A. §§ 49-8-302 and 49-8-303 is broad and general, it is not unconstitutionally vague under either the state or federal constitution, as applied to professor who was repeatedly warned about her conduct, and whose dismissal letter identified four specific areas of conduct justifying dismissal. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

The provision of T.C.A. § 63-6-214(b)(12), relating to prescription drugs, is sufficiently clear to a person of ordinary intelligence to put him or her on notice as to what conduct is proscribed and is not unconstitutionally vague. Williams v. State Dep't of Health & Env't, 880 S.W.2d 955, 1994 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1994).

The provision of T.C.A § 49-2-201 limiting the number of members of the county board of education is not unconstitutionally vague under the state or federal constitutions. County of Shelby v. McWherter, 936 S.W.2d 923, 1996 Tenn. App. LEXIS 340 (Tenn. Ct. App. 1996).

The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

A court can find a statute unconstitutionally vague on its face only if the court concludes that it is capable of no valid application or if the law reaches a substantial amount of constitutionally protected activity. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

The void for vagueness doctrine serves two primary goals: First, to ensure fair notice to the citizenry; second, to provide standards for enforcement by police, judges and juries. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Generally, vagueness challenges to laws not threatening first amendment interests must be brought on an as-applied basis because a pre-application facial challenge is premature. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Trial court erred when it enjoined adult bookstore from operating and the bookstore, which was forced to close, was entitled to damages where the definition of “adult bookstores” in Knoxville, Tenn., City Code § 16-468, was void for vagueness because the city was unable to articulate any constitutionally-meaningful standards for the phrase “substantial or significant portion of its stock and trade” in the ordinance's definition of an adult bookstore. City of Knoxville v. Entm't Res., LLC., 166 S.W.3d 650, 2005 Tenn. LEXIS 606 (Tenn. 2005), cert. denied, — U.S. —, — S. Ct. —, — L. Ed. 2d —, 2005 U.S. LEXIS 9056, 74 U.S.L.W. 3334 (2005).

Supreme court of Tennessee held that the definition of “adult bookstores” in Knoxville, Tenn., City Code § 16-468, was void for vagueness because the city was unable to articulate any constitutionally-meaningful standards for the phrase “substantial or significant portion of its stock and trade” in the ordinance's definition of an adult bookstore. City of Knoxville v. Entm't Res., LLC., 166 S.W.3d 650, 2005 Tenn. LEXIS 606 (Tenn. 2005), cert. denied, — U.S. —, — S. Ct. —, — L. Ed. 2d —, 2005 U.S. LEXIS 9056, 74 U.S.L.W. 3334 (2005).

In consolidated appeals from defendants' sexual exploitation of a minor charges and convictions, the supreme court held that earlier provisions of T.C.A. § 39-17-1003(b), a permissive inference, was not unconstitutionally overbroad or vague as the inference did not alter the requirement that the image be of a “minor,” and the possession contemplated by the statute had to be “knowing”; thus, a person who inadvertently stumbled upon child pornography would not be guilty of a crime under the terms of the statute. State v. Pickett, 211 S.W.3d 696, 2007 Tenn. LEXIS 10 (Tenn. 2007), cert. denied, Harwood v. Tennessee, 169 L. Ed. 2d 305, 128 S. Ct. 436, 552 U.S. 973, 2007 U.S. LEXIS 11604 (2007).

Defendant's convictions for animal cruelty were appropriate because T.C.A. § 39-14-202 was sufficiently specific to warn defendant of the proscribed conduct; additionally, not all of defendant's animals were kept under the same conditions and it was within the prosecutor's broad discretion to choose which charges to bring against defendant. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Statute is sufficiently precise to provide fair warning as to conduct that is covered by the statute; the statute applies to a gang member who sells, delivers, or manufactures a controlled substance and where the transaction results, or was intended to result, in the defendant's receiving some sort of compensation for that service, a person of common intelligence would be able to understand the plain meaning of the statute, and it is not void for vagueness. State v. Stripling, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 16, 2016).

In a case in which defendant was convicted of felony burglary, the appellate court found that defendant's state and federal constitutional rights to due process were not violated because the burglary statute was not unconstitutionally vague and provided fair warning to a person of common intelligence that the person could be convicted of burglary for committing theft after entering a building open to the public, knowing the owner had revoked its effective consent for the person to enter; and defendant knew that he had been banned from the stores. State v. Ivey, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Oct. 23, 2018), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 245 (Tenn. Mar. 26, 2020).

T.C.A. § 39-14-402(a)(3) does not violate the fair warning doctrine merely because it has not been for a significant period of time employed to the prosecution of burglaries where a person entered a building open to the public, without the consent of the owner, and committed or attempted to commit a felony, theft, or assault. State v. Bowens, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Oct. 23, 2018).

35. —Partial or Private Statutes.

Every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community who made the law, by another. Vanzant v. Waddel, 10 Tenn. 260, 1829 Tenn. LEXIS 7 (1829); Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831); Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831); Tate's Ex'rs v. Bell, 12 Tenn. 202, 1833 Tenn. LEXIS 55 (1833); Officer v. Young, 13 Tenn. 320, 1833 Tenn. LEXIS 182 (1833); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836); Nashville v. Althrop, 45 Tenn. 554, 1868 Tenn. LEXIS 46 (1868); Whites Creek Tpk. Co. v. Davidson County, 3 Cooper's Tenn. Ch. 396 (1877).

A partial law embraces only a portion of those persons who exist in the same state, and are surrounded by like circumstances, and is not “the law of the land.” Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842); Nolensville Tpk. Co. v. Quinby, 27 Tenn. 476, 1847 Tenn. LEXIS 109 (1847); Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853); Alexandria v. Dearmon, 34 Tenn. 104, 1854 Tenn. LEXIS 20 (1854); Nashville v. Althrop, 45 Tenn. 554, 1868 Tenn. LEXIS 46 (1868); Brown v. Haywood, 51 Tenn. 357, 1871 Tenn. LEXIS 175 (1871); Hatcher v. State, 80 Tenn. 368, 1883 Tenn. LEXIS 181 (1883); Woodard v. Brien, 82 Tenn. 520, 1884 Tenn. LEXIS 154 (1884); Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

A partial law is not made “the law of the land,” and is not saved from unconstitutionality, because it is embraced in a statute granting a charter of incorporation. Budd v. State, 22 Tenn. 483, 1842 Tenn. LEXIS 135 (1842); Alexandria v. Dearmon, 34 Tenn. 104, 1854 Tenn. LEXIS 20 (1854); Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912). But see Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853).

A legislative grant of a charter or the ordinary franchise for banking is not a partial law in the sense of Tenn. Const. art. I, § 8, but it is in the nature of a contract rather than a “law of the land,” as that phrase is understood to be used in the constitution. Hazen v. Union Bank, 33 Tenn. 115, 1853 Tenn. LEXIS 17 (1853); County of Tipton v. Locomotive Works, 103 U.S. 523, 26 L. Ed. 340, 1880 U.S. LEXIS 2150 (1880).

That kind of partial legislation embraced in class legislation whose classification is natural and reasonable is not obnoxious to Tenn. Const. art. I, § 8. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); Scott v. Marley, 124 Tenn. 388, 137 S.W. 492, 1911 Tenn. LEXIS 54 (1911).

A private act authorizing a county commission to impose a tax on the privilege of disposing of solid waste at landfills in the county was invalid because it was inconsistent with general laws mandating a comprehensive plan for the control of solid waste in the state. City of Tullahoma v. Bedford County, 938 S.W.2d 408, 1997 Tenn. LEXIS 45 (Tenn. 1997).

36. —Retrospective Legislation.

Act, regulating cemetery corporations and their officers, which penalizes the officers for acts and omissions of their predecessors is void as retrospective legislation and as violative of the law of the land clause of the constitution. Spring Hill Cem. v. Lindsey, 162 Tenn. 420, 37 S.W.2d 111, 1931 Tenn. LEXIS 70 (1931).

In state action to collect child support arrearage, husband could not assert equitable defense based on wife's 1985 private agreement to accept reduced support since the 1987 amendments to § 36-5-101 prohibit such a defense, and husband did not seek to modify his court-ordered obligation until 1995 and thus had no constitutionally protected vested right in the remedies provided under prior law. State ex rel. McAllister v. Goode, 968 S.W.2d 834, 1997 Tenn. App. LEXIS 634 (Tenn. Ct. App. 1997).

37. —Notice.

The tax book is process equivalent to an execution in the hands of an officer, and payment under protest, even of county taxes, entitles the party to sue for so much as may be deemed illegal. Bright v. Halloman, 75 Tenn. 309, 1881 Tenn. LEXIS 121 (1881); State Nat'l Bank v. Memphis, 116 Tenn. 641, 94 S.W. 606, 1906 Tenn. LEXIS 17, 7 L.R.A. (n.s.) 663 (1906).

Statute authorizing service of process upon local agent is unconstitutional as applied to nonresidents, being a denial of due process, but is constitutional as to residents of the state. “Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory, but no state can exercise direct jurisdiction and authority over persons and property without its jurisdiction.” Frolich & Barbour v. Hanson, 155 Tenn. 601, 296 S.W. 353, 1926 Tenn. LEXIS 85 (1927).

Action of state board of elections in removing county election commissioners from office, without charges stating specific causes, and without trial, is a denial of due process of law and void. McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, 1937 Tenn. LEXIS 27 (1938).

When suit was brought against, and process served upon, the president of a cattle association as representative of the class of members of the association, to recover on a note executed by the president and secretary of the association, a judgment undertaking to bind individual members of the association personally was not in violation of Tenn. Const. art. I, § 8. Barnes v. Fort, 181 Tenn. 522, 181 S.W.2d 881, 1944 Tenn. LEXIS 273 (1944).

Where indictment for contributing to the delinquency of a minor sufficiently charged defendant with the acts with which he was accused he had notice of what he was going to have to defend and there was no violation of the constitution. Birdsell v. State, 205 Tenn. 631, 330 S.W.2d 1, 1959 Tenn. LEXIS 403 (1959).

A judgment entered against a defendant who was not served deprived the party of the fundamental right of due process. Hawley v. Lavelle, 602 S.W.2d 499, 1980 Tenn. App. LEXIS 364 (Tenn. Ct. App. 1980).

Dismissed professor who received notice of the allegations supporting the charge against her in the documentation attached to the letter instituting termination proceedings, and was afforded the benefit of both an informal and formal hearing, in which further specific details of the allegations were developed, and had a de novo hearing in the chancery court pursuant to § 49-8-304, received adequate notice of the charges against her and was not deprived of due process. Phillips v. State Bd. of Regents of State Univ. & Community College Sys., 863 S.W.2d 45, 1993 Tenn. LEXIS 337 (Tenn. 1993).

Where the department of safety had knowledge of petitioner's possible proprietary interest in property confiscated in connection with a drug arrest, it was required to give notice to the petitioner of the seizure and possible forfeiture. Redd v. Tennessee Dep't of Safety, 895 S.W.2d 332, 1995 Tenn. LEXIS 53 (Tenn. 1995).

Trial court's order suspending bail bond company from writing bail bonds “as the result of actions [by the company] on Wednesday, April 23, 1997” does not adequately apprise the company of the charges to be met. State v. AAA Aaron's Action Agency Bail Bonds, 993 S.W.2d 81, 1998 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. 1998).

Trial court did not err in denying a conservator's motion for a default judgment on a cross-claim against the department of veterans' affairs because the department had not been served, and it was not a party because it had not filed a pleading, nor had it made an appearance in the conservatorship proceedings; since the department had not waived its sovereign immunity, the probate court did not have jurisdiction over it. AmSouth Bank v. Cunningham, 253 S.W.3d 636, 2006 Tenn. App. LEXIS 144 (Tenn. Ct. App. Feb. 27, 2006).

There is no authority for the substitution of an oral directive for a valid court order, and therefore juvenile defendant was entitled to post-commitment relief after he was found to be in violation of the terms of probation based on an oral mandate for house arrest since he was entitled to notice under U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8; moreover, the appeal was not moot because a finding of a probation violation could have had adverse consequences in the future. State v. Rodgers, 235 S.W.3d 92, 2007 Tenn. LEXIS 744 (Tenn. Aug. 17, 2007).

Trial court properly dismissed an owner's petition for judicial review of an order of forfeiture for lack of jurisdiction because the petition was filed one day beyond the statutory 60-day time limit, the civil rules of procedure and appeal were inapplicable to administrative appeals, the notice by certified mail, directed to the owner's home address, although not delivered as intended, was reasonable, and the statute at issue allowed for sufficient time for those living outside of Davidson County to file a timely petition for judicial review. Kolasinski v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2015 Tenn. App. LEXIS 1003 (Tenn. Ct. App. Dec. 30, 2015).

Trial court failed to ensure proper notice to the wife of the hearing at which it awarded the enhanced judgment lien on behalf of her former counsel because the record contained no proof of notice to the wife and neither the affidavit of attorney's fees or the addendum referenced by the attorney during the hearing; the attorney's motion for withdraw did not include a notice of hearing or a request for hearing, and the attorney presented no proof the wife received notice of the hearing date. McCarter v. McCarter, — S.W.3d —, 2016 Tenn. App. LEXIS 381 (Tenn. Ct. App. June 1, 2016).

Attorney received adequate notice of his range of possible punishment, and his procedural due process rights were not violated by the procedure the supreme court used in reviewing and increasing the attorney's disciplinary sanctions from a reprimand to a suspension In re Walwyn, 531 S.W.3d 131, 2017 Tenn. LEXIS 457 (Tenn. Aug. 4, 2017).

Chancery court erred in unilaterally imposing substantive and material restrictions on a father's activities during his parenting time without affording him an evidentiary hearing because some of the restrictions placed on the father were too vague to be enforceable, the statement of the evidence did not provide a factual basis for the restrictions placed on the father, and such restraints should be well defined and must involve conduct that competent evidence shows could cause harm to the child. Brantley v. Brantley, — S.W.3d —, 2017 Tenn. App. LEXIS 617 (Tenn. Ct. App. Sept. 15, 2017).

Tennessee law was well established as to the de novo nature of a hearing before a juvenile court judge of a matter previously heard by a magistrate, and the father had proper notice of the type of hearing he was requesting; his procedural due process rights were not violated by the trial court's consideration of all evidence presented regarding his compliance or noncompliance with the December 2013 order through the time of the August 2016 rehearing. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

38. —Judicial Process.

Due process does not require a court to eliminate the right and wrong test of insanity in criminal cases or to adopt the so-called Durham rule placing further latitude in the hands of psychiatrists in determining the responsibility of an accused for his crime. Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299, 1963 Tenn. LEXIS 405 (1963).

Allegation that two members of supreme court as constituted when petition for certiorari was originally refused had communicated with chancellor and court of appeals on merits of case even if true would not have invalidated granting of second petition for certiorari where one of justices had retired before granting of second petition, the other made no statement as to how case should be decided before it was decided and merely concurred in action of court and three members of present court, sufficient to make a constitutional judgment, had never heard of case until it was presented and argued under second petition. Pierce v. Tharp, 224 Tenn. 328, 455 S.W.2d 145, 1970 Tenn. LEXIS 330 (1970), rehearing denied, 224 Tenn. 339, 457 S.W.2d 529 (1970), cert. denied, McKown v. Pierce, 402 U.S. 929, 91 S. Ct. 1527, 28 L. Ed. 2d 863, 1971 U.S. LEXIS 2286 (1971).

Where a defendant in a suit for collection under an assigned purchase contract was served with process and on the date cited to appear before the court inquired at the clerk's office, without counsel, and was told that the case would not be heard that day, and then took no further action until after he was served with execution by garnishment based on a judgment pro confesso, and then petitioned the court for a writ of coram nobis on the ground that he had not received proper notice, defendant had been negligent in failing to defend the action, had received sufficient notice, and was not denied due process of law in the entering of the judgment pro confesso. Commerce Union Bank v. Inquipco, Inc., 515 S.W.2d 651, 1973 Tenn. App. LEXIS 242 (Tenn. Ct. App. 1973), cert. denied, 419 U.S. 896, 95 S. Ct. 176, 42 L. Ed. 2d 140, 1974 U.S. LEXIS 2937 (1974).

Since the public service commission is an administrative board and not a court, the constitutional requirement of fundamental fairness under the due process clause of the U.S. Const. amend. 14 and Tenn. Const. art. I, § 8 requires only that the hearings it conducts be hearings in a substantial sense, and the statutory procedure which permits hearings before an examiner, a quorum of the commission sitting in shifts, and a decision by members of the commission who did not participate in the hearings, meets the constitutional requirements so long as the members making the decision have considered and appraised the evidence presented at the hearings. McMinnville Freight Line, Inc. v. Atkins, 514 S.W.2d 725, 1974 Tenn. LEXIS 456 (Tenn. 1974).

Where the failure of the state to provide an indigent defendant with a timely bill of exceptions operated to deny him a meaningful appellate review of his criminal trial he was denied his constitutional rights under the United States and Tennessee constitutions. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

An indigent defendant certified by the Central State Hospital as competent to stand trial was not denied constitutional due process by the trial court disallowing his request to subpoena a private expert witness to determine his mental competence. Crum v. State, 530 S.W.2d 103, 1975 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. 1975).

Where court convened at nine a.m. and heard evidence until one a.m. the following morning without unusual and compelling reason, potential fatigue of the jurors should have been considered by the court and failure to adjourn at a more reasonable hour was reversible error. Hembree v. State, 546 S.W.2d 235, 1976 Tenn. Crim. App. LEXIS 307, 99 A.L.R.3d 586 (Tenn. Crim. App. 1976).

Where the trial judge applied the wrong standard of proof in a criminal contempt proceeding, thus depriving defendants of a fair trial, the correct remedy on remand was a redetermination of guilt or innocence from the existing record by the chancellor who heard the case originally. Strunk v. Lewis Coal Co., 547 S.W.2d 252, 1976 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1976).

Private deprivations of an accused's right may involve civil or criminal sanction or may affect the weight given evidence so obtained, but they do not result in the exclusion of the evidence itself. Ennis v. State, 549 S.W.2d 380, 1976 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. 1976).

Where inadvertently suppressed evidence was only cumulative of facts already overwhelmingly established, there was no denial of due process. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Where the trial judge questioned defense counsel initially concerning issues for appeal, made a determination as to the validity of the issues, and provided the defendant with a transcript limited in scope to issues the trial judge determined to have merit, defendant was denied his right to “a record of sufficient completeness,” a right guaranteed by Tenn. Const. art. I, § 8. State v. Draper, 800 S.W.2d 489, 1990 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1990).

When the issues “make out a colorable need for a complete record”, the state is required to provide the defendant with a complete verbatim transcript of the evidence and proceedings. If the state contends that a verbatim transcript of only a portion of the proceedings, or, in the alternative, a statement of the evidence will suffice, the state has the burden or onus of showing that a partial transcript or a statement of the evidence is sufficient for the defendant to effectively present the issues and have them determined by the appellate court on the merits. State v. Draper, 800 S.W.2d 489, 1990 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1990).

When the defendant is indigent, and appeals as of right to the supreme court or court of criminal appeals, the state of Tennessee is required to provide the defendant with a “record of sufficient completeness” to permit proper consideration of the issues the defendant will present for review. State v. Draper, 800 S.W.2d 489, 1990 Tenn. Crim. App. LEXIS 469 (Tenn. Crim. App. 1990).

While trial judge held trial a period of 14 hours and 45 minute on the first day of trial, and 14 hours and 30 minutes on the second day of trial, the stressful hours involved in the trial, over the protest of defendant's counsel, without the express agreement of the jurors, and without unusual and compelling circumstances, violated the rule laid down in Hembree v. State, 546 S.W.2d 235, 1976 Tenn. Crim. App. LEXIS 307, 99 A.L.R.3d 586 (Tenn. Crim. App. 1976) and constituted deprivations of defendant's right to due process under U.S. Const., amend. 14 and Tenn. Const. art. I, § 8, and his right to counsel, U.S. Const. amend. 6, Tenn. Const. art. I, § 9, and required a reversal of his conviction and a remand for a new trial. State v. McMullin, 801 S.W.2d 826, 1990 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. 1990).

Plain error existed in the trial court's conducting trial into the late night and early morning hours of the next day. State v. Parton, 817 S.W.2d 28, 1991 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1991).

First-degree murder statute, which eliminated the requirement that the killing be willful, deliberate, malicious, and premeditated if the victim was under thirteen years of age and the death resulted from child abuse, unconstitutionally deprived defendant of due process in contravention of the law of the land provisions of Tenn. Const. art. I, § 8. State v. Hale, 840 S.W.2d 307, 1992 Tenn. LEXIS 507 (Tenn. 1992), rehearing denied, State v. Eugene Hale, — S.W.2d —, 1992 Tenn. LEXIS 558 (Tenn. Sept. 8, 1992).

Invalidation of the Standard Unsafe Building Abatement Code was reversed because a property owner's right to be heard before the city could execute a demolition order satisfied the property owner's right to due process. Manning v. City of Lebanon, 124 S.W.3d 562, 2003 Tenn. App. LEXIS 476 (Tenn. Ct. App. 2003).

Fiduciary shield doctrine did not apply to T.C.A. §§ 20-2-214(a)(6), 20-2-225, because the statutes were coextensive with due process, and defendants, a company's officers, purposefully availed themselves of Tennessee by sending emails to plaintiff equipment supplier for the supplier to fraudulent pay the company instead of its accounts receivable assignee. Simplex Healthcare, Inc. v. Marketlinkx Direct, Inc., 761 F. Supp. 2d 726, 2011 U.S. Dist. LEXIS 7178 (M.D. Tenn. Jan. 25, 2011).

39. — —Compel Attendance of Witnesses.

The exercise of authority in such manner as to deprive an accused of a substantive procedural right to compel attendance of witnesses guaranteed by the federal and state constitutions is an essential illegality committed within actual powers which will authorize relief by certiorari. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

There was no merit in a contention that the civil investigative demand denies parties due process by requiring them to divulge privileged and protected matters and to forfeit rights to judicial review because § 8-6-407 provides for the confidentiality of documents turned over to the attorney general pursuant to a civil investigative demand and where contested, the production of documents cannot be compelled by the attorney general without the approval of the chancellor. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

The civil investigative demand statutes, title 8, ch. 6, part 4, are not violative of due process and equal protection provisions of the state and federal constitutions because the advantages, if any, conferred upon the state by having the statutory right to precomplaint discovery is minimal and is negated upon commencement of an adjudicatory proceeding by the fact that the state's adversary then has full discovery rights. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

There is a due process right to refuse unreasonable and irrelevant investigative demands. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

40. —Conservatorship Proceedings.

The very simple statutory procedure for contesting incompetency by the ward of a conservatorship affords adequate procedural due process and the statutes do not unjustifiably restrict a ward's liberty in violation of substantive due process or the right to equal protection. State ex rel. McCormick v. Burson, 894 S.W.2d 739, 1994 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1994).

41. —Criminal Law and Procedure.

Our criminal laws, when they are the laws of the land, embrace all persons who are in, or who may come into, the like situation or circumstances, and are not amenable to the charge of unconstitutionality because they contain exemptions which, equally with the law, include all members of the community, who may fall within their purview. Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); Maney v. State, 74 Tenn. 218, 1880 Tenn. LEXIS 236 (1880); Daly v. State, 81 Tenn. 228, 1884 Tenn. LEXIS 30 (1884); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896) (citing several cases); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897) (citing several cases). See West v. State, 28 Tenn. 66, 1848 Tenn. LEXIS 41 (1848); State v. Rauscher, 69 Tenn. 96, 1878 Tenn. LEXIS 51 (1878); Murphy v. State, 77 Tenn. 373, 1882 Tenn. LEXIS 68 (1882).

An exception or exemption in a criminal law does not render it unconstitutional, when. Davis v. State, 71 Tenn. 376, 1879 Tenn. LEXIS 93 (1879); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895). See Gilbert Parks & Co. v. Thomas Parks & Co., 59 Tenn. 633, 1874 Tenn. LEXIS 20 (1874); Demoval v. Davidson County, 87 Tenn. 214, 10 S.W. 353, 1888 Tenn. LEXIS 55 (1888); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900).

Where rape victim had ample opportunity to clearly observe defendant before and during rape and there was other evidence persuasive of his identity, the court held that the exhibition to the victim of a single photograph of defendant, who was then in custody, immediately prior to victim's viewing and identifying him at a line-up was improper and erroneous but, in view of the “totality of the circumstances” did not taint the line-up or in-court identification and did not violate constitutional due process. Bennett v. State, 530 S.W.2d 511, 1975 Tenn. LEXIS 564 (Tenn. 1975).

Even if the exhibition of defendant's photograph to the robbery victim had been unduly suggestive, the resulting proof of identification would have been admissible since the safeguards of the exclusionary rule do not extend to activities of private citizens. Ennis v. State, 549 S.W.2d 380, 1976 Tenn. Crim. App. LEXIS 393 (Tenn. Crim. App. 1976).

Where the out-of-court identification was made 50 days after the commission of the crime, during a chance encounter having no official sanction, by a witness who had seen defendants in a well-lighted whiskey store, under circumstances commanding complete attention, and made with devastating certainty, it was without taint. Rippy v. State, 550 S.W.2d 636, 1977 Tenn. LEXIS 536 (Tenn. 1977).

An indigent defendant does not have a right, under the federal or state constitution, to the services of a private psychiatrist, at state expense. Graham v. State, 547 S.W.2d 531, 1977 Tenn. LEXIS 557 (Tenn. 1977).

Where defendant was a hospital patient, victim's identification was necessarily confined to the hospital premises, but considering the totality of the circumstances including the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation, the defendant was not denied any constitutional rights under Tenn. Const. art. I, § 8. Forbes v. State, 559 S.W.2d 318, 1977 Tenn. LEXIS 649 (Tenn. 1977).

Where the rape victim saw defendant's face, recognizing him as a former neighbor, and the police showed her an old photograph of defendant thirty hours prior to the time of the lineup, defendant was not denied due process. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Defendant was arrested without probable cause, and the resulting searches and seizures were constitutionally infirm under the U.S. Const. amends. 4 and 14 and under Tenn. Const. art. I, §§ 7 and 8, where there was no proof in the record of the reliability of the informant or the credibility of his information. Goines v. State, 572 S.W.2d 644, 1978 Tenn. LEXIS 657 (Tenn. 1978).

The issuance of a state's warrant by a nonsalaried justice of the peace does not satisfy the requirements of a neutral and detached magistrate and is violative of U.S. Const. amend. 14 and Tenn. Const. art. I, § 8. In re Dender, 571 S.W.2d 491, 1978 Tenn. LEXIS 647 (Tenn. 1978).

So long as one of the participants to an electronically recorded conversation consents to the procedure, there exists no constitutional infringement. State v. Mosher, 755 S.W.2d 464, 1988 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1988).

A one party consensual surveillance did not violate the right of the defendant to be free from unreasonable searches and seizures. State v. Mosher, 755 S.W.2d 464, 1988 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1988).

The commingling of status offenders with delinquent children in secure penal facilities operated for delinquent children is not rationally related to a legitimate governmental purpose and is therefore punishment and, as this confinement amounts to punishment without an adjudication of guilt, the practice violates the principles of substantive due process under the Tennessee and United States constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Though the state's interest in protecting status offenders from harm is a compelling interest, the state's practice of placing status offenders in secure penal facilities and commingling them with delinquent offenders is not a practice “precisely tailored” to serve this compelling interest. Therefore this practice violates the guarantees of equal protection under the Tennessee and United States constitutions. Doe v. Norris, 751 S.W.2d 834, 1988 Tenn. LEXIS 69 (Tenn. 1988).

Driver's due process guarantees provided for by U.S. Const. amends. 5 and 14, and Tenn. Const. art. I, § 8 were not violated by having a Tennessee highway patrolman conduct a driver license suspension hearing pursuant to § 55-10-406 to determine if the driver refused to take a breath-alcohol test after being placed under arrest for driving under the influence. Hookanson v. Jones, 757 S.W.2d 347, 1988 Tenn. App. LEXIS 392 (Tenn. Ct. App. 1988).

The due process clause and equal protection application of the U.S. Const. amends. 5 and 14, and Tenn. Const. art. I, § 8 require that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final. State v. Enochs, 823 S.W.2d 539, 1991 Tenn. LEXIS 486 (Tenn. 1991), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 41 (Tenn. Jan. 27, 1992).

If a criminal defendant sincerely contends that his guilty plea was induced by the state's misrepresentation that it possessed no evidence favorable to his position, there is a denial of due process resulting as a matter of law in the manifest injustice required to be shown before the defendant will be permitted to withdraw a plea of guilty, after sentence and before the judgment becomes final. State v. Davis, 823 S.W.2d 217, 1991 Tenn. Crim. App. LEXIS 533 (Tenn. Crim. App. 1991).

Although freedom from bodily restraint and punishment by the state without due process of law is a fundamental right, states have no constitutional duty to provide post-conviction relief procedures; accordingly, the opportunity to collaterally attack constitutional violations occurring during the conviction process is not a fundamental right entitled to heightened due process protection. Burford v. State, 845 S.W.2d 204, 1992 Tenn. LEXIS 699 (Tenn. 1992), superseded by statute as stated in, Brock v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. Apr. 10, 1997).

The statutory form of first degree murder committed while in the perpetration of a designated felony is a legitimate and constitutional legislative function; thus, even though a showing of premeditation, deliberation, and intent to kill is not required for conviction of felony murder in the first degree, and defendant cannot rely on certain defenses afforded defendants and charged with other forms of first degree murder, there is no denial of due process. State v. Walker, 893 S.W.2d 429, 1995 Tenn. LEXIS 26 (Tenn. 1995).

Participation in the criminal trial by special prosecutors who represented the victim in a civil matter arising from the same incident was a violation of defendant's due process right under the federal and state constitutions. State v. Eldridge, 951 S.W.2d 775, 1997 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. 1997).

Revoking probation based upon criminal acts defendant committed before being placed on probation does not implicate due process concerns because, unlike other conditions of probation that may be imposed, defendant is deemed to have notice that his conduct must conform to the requirements of the law from the time of the law's enactment. State v. Stubblefield, 953 S.W.2d 223, 1997 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. 1997).

A prosecutor may not use peremptory strikes to challenge potential jurors solely on account of their race. State v. Carroll, 34 S.W.3d 317, 2000 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 2000).

The basis for the state's use of a peremptory challenge against juror was sufficiently race-neutral to dispel any indicia of purposeful discrimination, where prosecutor and defense counsel agreed that the potential juror avoided eye contact during voir dire. State v. Carroll, 34 S.W.3d 317, 2000 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 2000).

In a felony murder case, a court did not err by denying defendant's motion for a continuance where defendant completely failed to demonstrate that the findings or testimony of expert witnesses would have been favorable to the defense. In short, the defendant failed to establish that the trial court abused its discretion because there was no indication that he was denied a fair trial or that the result of the proceeding would have been different had a continuance been granted. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

Post-conviction relief petition was properly summarily dismissed, because petitioner failed to show that he was deprived of due process by jury instructions for second degree murder which failed, like those in State v. Page , 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002), to specify that a second degree murder was a result-of-conduct offense; since petitioner was convicted of first degree, premeditated murder, any failure of the trial court to adequately instruct the jury under Page was harmless beyond a reasonable doubt. O'Baner v. State, 159 S.W.3d 605, 2004 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1023 (Tenn. Nov. 15, 2004), cert. denied, O'Baner v. Tennessee, 544 U.S. 999, 125 S. Ct. 1933, 161 L. Ed. 2d 773, 2005 U.S. LEXIS 3553 (2005).

Upon retrial for felony murder, defendant's constitutional right to a jury trial would be violated by an order preventing him from presenting proof that would question his aggravated burglary conviction, which was the predicate offense for the felony murder charge. Just as he could not be collaterally estopped from presenting proof as to the burglary conviction, he, likewise, could not be barred by application of the law of the case. State v. Scarbrough, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Oct. 11, 2004), aff'd, 181 S.W.3d 650, 2005 Tenn. LEXIS 1044 (Tenn. 2005).

In a capital murder case, a court properly found that defendant was competent to stand trial because, although defendant had been diagnosed by his experts with anosognosia, one of defendant's experts admitted that defendant had a previous history of malingering, he had rationally discussed many facets of his case with his attorneys, and he understood the roles of the prosecutor, the judge, and the defense attorneys; defendant himself had expressed an understanding of the proceedings. State v. Reid, 213 S.W.3d 792, 2006 Tenn. LEXIS 1203 (Tenn. 2006), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 17, (Tenn. 2007), cert. denied, Reid v. Tennessee, 169 L. Ed. 2d 305, 128 S. Ct. 437, 552 U.S. 974, 2007 U.S. LEXIS 11530 (2007).

Defendant's especially aggravated kidnapping convictions violated due process where, as part of his robbery attempt, defendant moved the victims to facilitate access to a safe, and the physical circumstances of the respective confinements did not prevent either victim from leaving the building and summoning help. Ultimately, the co-manager merely walked out of the fan room and collected the manager, who removed the tape from her hands, and the two women walked into the vacated office to call 911. State v. Richardson, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. May 4, 2006), rehearing denied, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 7, 2006), dismissed, Richardson v. Colson, — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 94366 (M.D. Tenn. July 9, 2012), rev'd, 251 S.W.3d 438, 2008 Tenn. LEXIS 318 (Tenn. May 7, 2008).

Defendant's argument that the state prosecuted defendant and his accomplice using inconsistent theories, facts, and arguments in violation of his due process rights was rejected because defendant's “lone perpetrator” characterization of his accomplice's prosecution was false. The core theory of the two prosecutions was consistent, namely that the accomplice shot the victims and robbed the store while defendant served as a lookout. State v. Housler, 193 S.W.3d 476, 2006 Tenn. LEXIS 431 (Tenn. 2006), cert. denied, Housler v. Tennessee, 549 U.S. 994, 127 S. Ct. 499, 166 L. Ed. 2d 368, 2006 U.S. LEXIS 8048 (2006).

Reversal of an order that concluded that a confidential informant was a material witness and that disclosure was warranted was appropriate because defendants failed to establish that the informant, who provided information upon which a detective relied in seeking a search warrant, but who was not present at the scene of, and did not participate in, the crimes charged, possessed any information that was either material or favorable to their defense. Rather, defendants relied on vague, conclusory allegations and their mere invocation of their rights did not automatically outweigh the public policies favoring the protection of confidential informants. State v. Ostein, 293 S.W.3d 519, 2009 Tenn. LEXIS 520 (Tenn. Aug. 20, 2009).

Although the double jeopardy clause was not implicated because the jury was not reassembled to determine guilt or innocence, but only to determine the facts relevant to sentencing, there was no separate jeopardy, the recall of the discharged jury violated defendant's due process rights under U.S. Const. amend. V, U.S. Const. amend. XIV, § 1, and Tenn. Const. art. I, §§ 6, 8, 9 because once a jury had returned a complete verdict, or the jurors had separated and passed from the control of the court, the jury could not be reassembled to act on the case for any purpose. Accordingly the case was remanded to the trial court to select a new jury in order to hold a new trial solely on the issue of whether defendant's conviction was his first, second, third, or fourth driving under the influence offense based on the evidence presented regarding prior convictions. State v. Nash, 294 S.W.3d 541, 2009 Tenn. LEXIS 652 (Tenn. Oct. 7, 2009).

Method employed to elicit defendant's admissions was not so inherently unfair that it violated due process because there was no proof that the detective directed defendant's wife to promise defendant he would not be prosecuted or that he would receive leniency from the State, nor did she, as a private citizen, have the power to do so. State v. Clark, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Sept. 6, 2012), aff'd, 452 S.W.3d 268, 2014 Tenn. LEXIS 913 (Tenn. Nov. 10, 2014).

Under Ferguson, the standard of review of a trial court's determination as to whether a defendant was deprived of a fundamentally fair trial is de novo with no presumption of correctness. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

When defendant engaged in criminal conduct while released on bond, the Tennessee trial court was required to conduct a bail revocation hearing to determine whether defendant forfeited the constitutional right to pretrial bail in compliance with the procedure established to meet the constitutional due process requirements. State v. Burgins, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

Trial court did not err in denying appellant's motion to suppress his statements to appellant's ex-wife on October 15 and 16, 2002 where the statements were voluntary as the ex-wife did not threaten appellant or make him any promises; the ex-wife told appellant that she wanted to help, but her offer was not conditioned upon appellant's confessing. State v. Willis, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 13, 2015), aff'd, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016).

Appellate court lack jurisdiction to consider defendant's appeal because the certified question of law regarding the legality of the warrantless entry into defendant's home and the seizure of defendant from his doorway was not dispositive of the case where, even if a police officer detained defendant in a manner that exceeded constitutional limits, the search warrant—based on anonymous tips and the smell of marijuana all of which were known before the officer placed his foot inside the residence and physically seized defendant—remained valid and the police obtained no information or evidence to secure the warrant as a result of seizing and detaining defendant before execution of the search warrant. State v. Snider, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1069 (Tenn. Dec. 14, 2015).

State's failure to disclose their discovery of exculpatory text messages did not amount to a Brady violation where defendant failed to show that the evidence was material because her claim that she was in the vehicle trying to reach a missing friend went unchallenged during her DUI trial. In addition, the text messages were sent from defendant's phone and therefore were available to her. State v. Conkin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Sept. 7, 2016).

There was no error in the post-conviction court's refusal to admit evidence of the State's chart used during jury selection; the prosecutor stated there were no notations related to race or ethnicity, and it could not be concluded that the admission of the chart would have in any way aided petitioner in a potential Batson claim, and not post-conviction relief was warranted. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Trial court required petitioner's counsel to review an audiotape recording of the voir dire before ordering a transcription of the hearing, and petitioner could not be granted postconviction relief on the issue related to a potential Batson claim when he failed to exercise due diligence and actually listen to a copy of the audiotape. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

This section, which gave the Tennessee Bureau of Investigation (TBI) $250 for each DUI conviction that was obtained using a blood or breath test, violated the Due Process Clause of the Fourteenth Amendment and Tenn. Const. art. I, § 8 because the TBI had a direct pecuniary interest in securing convictions, given that the money from the fees was placed directly in the intoxicant testing fund which was designated for exclusive use by the TBI. The court held that procedural safeguards suggested by the State failed to remedy the due process violations resulting from the fee system itself. State v. Decosimo, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 6, 2018), rev'd, 555 S.W.3d 494, 2018 Tenn. LEXIS 471 (Tenn. Aug. 23, 2018), overruled, State v. Mitchell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Oct. 29, 2018), overruled, State v. Ipock, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 854 (Tenn. Crim. App. Nov. 20, 2018), overruled, State v. Liles, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 8, 2019).

T.C.A. § 55-10-413 was not unconstitutional due to the imposition of a fee upon persons convicted of drug and alcohol offenses when forensic scientists employed by the Tennessee Bureau of Investigation (TBI) conducted chemical tests used to determine blood alcohol or drug content, as the TBI forensic scientists were not judicial officials to whom the requirements of Turney v. Ohio applied. State v. Decosimo, 555 S.W.3d 494, 2018 Tenn. LEXIS 471 (Tenn. Aug. 23, 2018), cert. denied, Decosimo v. Tennessee, 202 L. Ed. 2d 577, 139 S. Ct. 817, — U.S. —, 2019 U.S. LEXIS 222 (U.S. Jan. 7, 2019).

Trial court's consideration of evidence relating to the nolled count of the indictment, sexual exploitation of a minor for possession of pornographic images, did not violate defendant's right to substantive due process because the trial court could utilize criminal behavior shown by a preponderance of the evidence to enhance a sentence without violating federal or state due process principles. State v. Broadrick, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 678 (Tenn. Crim. App. Sept. 4, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 84 (Tenn. Jan. 16, 2019).

Defendant failed to show a due process violation because he failed to establish an agreement between the State and the witnesses. Defendant cross-examined the witnesses and both witnesses testified that the State did not promise to reduce their sentences in exchange for their testimony. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 27, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 253 (Tenn. June 19, 2019).

42. — —Multiple Convictions for Same Offense.

Multiple convictions for same offense cannot stand unless offenses supporting convictions are wholly separate and distinct, and key test is whether each provision requires proof of fact which the other does not. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

Not guilty verdicts erroneously reported by the jury, coupled with the discharge of the jury, concluded the defendant's jeopardy and her subsequent convictions violated double jeopardy and due process protections. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

Convictions for both rape and incest arising out of the same act did not violate due process under the Tennessee or United States constitutions because neither offense was “essentially incidental” to the other. State v. Beauregard, 32 S.W.3d 681, 2000 Tenn. LEXIS 662 (Tenn. 2000).

Defendant's convictions for especially aggravated kidnapping and attempted aggravated robbery did not violate due process, as the kidnapping was not incidental to the robbery; additional movement and confinement by defendant exceeded what was necessary to accomplish the attempted aggravated robbery, lessened defendant's risk of detection, and increased a victim's risk of harm. State v. Majors, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. June 21, 2010), appeal denied, State v. Major's, — S.W.3d —, 2010 Tenn. LEXIS 1190 (Tenn. Dec. 8, 2010), dismissed, Majors v. Sexton, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 166310 (M.D. Tenn. Nov. 22, 2013).

43. — — —Death Penalty.

Where defendant received death sentence following first degree murder conviction, the aggravating circumstance — the defendant employed another to commit the murder for remuneration or the promise of remuneration — did not duplicate the elements of the offense, even incorporating the criminal responsibility statutes, and therefore constitutional narrowing was accomplished. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

Denial of petitioner's, an inmate's, motion to reopen his postconviction petition for the purpose of determining whether he was mentally retarded and thus ineligible for the death penalty was appropriate pursuant to T.C.A. § 39-13-203(b) because he failed to meet the bright-line mark of 70 for establishing mental retardation at the time of the offense. He also failed to establish that he had adaptive deficits and he was not twice placed in jeopardy. Coleman v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 13, 2010), aff'd in part and vacated in part, 341 S.W.3d 221, 2011 Tenn. LEXIS 319 (Tenn. Apr. 11, 2011).

In a death penalty case, defendant was mentally competent to waive presentation of mitigation evidence because the trial court ordered a competency evaluation, and following the evaluation, both doctors reported back to the trial court that defendant refused to participate. The mere fact that defendant's decision to waive the presentation of mitigation evidence might not have been wise did not inherently mean that he was incompetent to make the decision. State v. Johnson, 401 S.W.3d 1, 2013 Tenn. LEXIS 355 (Tenn. Apr. 19, 2013), cert. denied, Johnson v. Tennessee, 187 L. Ed. 2d 371, 134 S. Ct. 513, — U.S. —, 2013 U.S. LEXIS 7883 (U.S. Nov. 4, 2013).

44. — —Miranda.

In a prosecution for aggravated sexual assault, even though defendant was not advised that his statements to a counselor were not privileged, admission of the statements did not violate due process since they were made in a noncustodial setting and there was no evidence of interference by a state agent. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

Because defendant's reluctance to answer questions did not amount to an invocation of his right to remain silent, the deputy director's testimony regarding such reluctance was not improper. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

45. — —Identification.

The rule is that constitutional due process is violated if a pretrial identification is influenced by suggestiveness by police officers to such degree as to render the identification unreliable. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

Only after a determination is made that the pretrial identification is unconstitutionally suggestive are certain factors considered to ascertain whether the in-court identification is influenced and tainted by the suggestiveness of the pretrial identification. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

In determining whether the in-court identification is tainted by an unconstitutional pre-trial identification so as to render the in-court identification inadmissible, the following factors must be considered: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

A rape victim who has had an opportunity to observe her assailant, and has been in contact with him for any considerable length of time is entitled to make an in-court identification based on that observation. Key v. State, 591 S.W.2d 793, 1979 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1979).

Court rejected defendant's claim that the trial court erred in denying his motion to suppress an eyewitness identification of him made by the murder victim's wife because her identification was not improperly enhanced by hypnosis; although hypnosis may have affected the wife's level of certainty, nothing in the record showed that hypnosis brought out previously unremembered key facts in light of the fact that the wife had given a detailed description of the assailant on the day of the murder that remained unchanged after hypnosis. State v. Thomas, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. Mar. 30, 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 844 (Tenn. Oct. 10, 2005), cert. denied, Thomas v. Tennessee, — U.S. —, 126 S. Ct. 1475, 164 L. Ed. 2d 249, 2006 U.S. LEXIS 2053 (2006), dismissed, Thomas v. Carlton, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 41940 (E.D. Tenn. Mar. 26, 2013).

Based upon the proof before the trial court that a trained narcotics officer viewed defendant in the daylight on three occasions for a total of at least two minutes, the last and lengthiest of those being face-to-face, and two months later was positive in his identification of defendant from a photograph, the record supported the trial court's determination that the motion to suppress was without merit and defendant's right to due process had not been denied. State v. Biggs, 211 S.W.3d 744, 2006 Tenn. Crim. App. LEXIS 558 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1129 (Tenn. 2006).

Trial court did not err by failing to suppress the victim's pretrial identifications of defendant on the ground that the sergeant failed to preserve the photograph array containing a particular man's photograph where it found that the State had a duty to preserve the array but that the sergeant's loss of it was simple human error, the victim's testimony was entirely consistent with the sergeant's testimony at the suppression hearing that he did not identify anyone in the array in which the man's photograph was part of, the original array was saved in a mugshot database and an exact duplicate was available to the defense, and the remaining evidence was more than sufficient to convict defendant. State v. Sanders, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 27, 2016).

46. — —Competency to Stand Trial.

Defendant's conviction for escape was proper because he was competent to stand trial; although the trial court found that defendant would have memory deficits, the charge was relatively minor and did not involve any complicated concepts and further, a memory deficit alone did not render defendant incompetent. State v. Ferrell, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Aug. 24, 2007), rev'd, 277 S.W.3d 372, 2009 Tenn. LEXIS 16 (Tenn. 2009).

Judgment of the trial court declaring defendant competent was supported by a doctor's testimony that defendant was competent and did not require medication to maintain his competence and evidence concerning defendant's behavior and demeanor, and defendant offered no evidence to the contrary to show that he was unable to understand the nature and object to the proceedings against him. State v. Ghormley, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1010 (Tenn. Crim. App. Nov. 5, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 138 (Tenn. Feb. 19, 2015).

Trial court did not err in refusing to order a second evaluation of defendant's competency after he refused to attend his trial, as he had been lucid at a hearing two weeks prior and defense counsel stated he had met with defendant the previous day and defendant was able to consult with him regarding his defense. State v. Hamby, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. Apr. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 641 (Tenn. Aug. 13, 2015).

Evidence did not preponderate against the finding that defendant one was competent to stand trial, and there was no error in the denial of defendant two's motion for severance; the doctor conceded that defendant one understood the roles of those in the courtroom, nothing indicated that she was unable to understand the nature of the proceedings, and while her behavior at trial was colorful, it was not indicative of incompetence. State v. Sims, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 775 (Tenn. Crim. App. Sept. 25, 2015).

Trial court determined that defendant's inability to recall the accident did not amount to incompetence because the degree of his amnesia did not hinder his ability to establish a defense; it was difficult to determine the issue without a transcript, plus counsel conceded that defendant's inability to assist ultimately made no difference in the outcome of the trial, and defendant was not entitled to relief. State v. Naifeh, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 391 (Tenn. Crim. App. May 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 714 (Tenn. Sept. 30, 2016).

Evidence supported the trial court's finding of defendant's competency to stand trial because the trial court credited the testimony of a forensic psychiatrist and a forensic psychologist, who interviewed defendant and testified that defendant was competent to stand trial. The trial court also observed defendant's demeanor and speaking ability during defendant's testimony on direct and cross-examination. State v. Davis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1020 (Tenn. Crim. App. Dec. 11, 2017).

47. — —Delay in Bringing to Trial.

An unreasonable delay between the commission of an offense and the commencement of the prosecution may violate the defendant's constitutional right to due process. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

Defendant's due process rights were not violated by a 13 year delay between the commission of the murder and the return of the indictment because the trial court found that actual prejudice had not been proven; the missing tapes and witness statements might have supported an alternative theory as to the perpetrator, but that was not proven. The trial court further found that the state had not caused the delay for tactical advantage but instead had lacked sufficient evidence until the discovery of the projectiles. State v. D'Antonio, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1152 (Tenn. Crim. App. Oct. 26, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 389 (Tenn. 2006), dismissed, D'Antonio v. Carpenter, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 90998 (M.D. Tenn. July 3, 2014).

Defendant's conviction for premeditated first-degree murder was appropriate because he failed to show that his due process rights were violated; almost 20-year delay between offense and prosecution was due to ongoing investigation as information was sought and suspects were eliminated, and although the investigation continued, there was no evidence that the state intentionally delayed the indictment in order to gain a tactical advantage over defendant. State v. Gilley, 297 S.W.3d 739, 2008 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Aug. 13, 2008).

Defendant did not show a pre-indictment delay required an indictment's dismissal because defendant did not show (1) defendant sustained actual prejudice as a direct and proximate result of the delay, or (2) the State caused the delay to gain a tactical advantage or to harass defendant. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Defendant did not establish that the pre-indictment delay of 17 months violated defendant's right to a fair trial because the delay was not presumptively prejudicial. Furthermore, defendant did not show that defendant suffered any actual prejudice as a result of the delay, or that the State of Tennessee caused the delay to obtain a tactical advantage over defendant. State v. Gleason, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Feb. 10, 2020).

Defendant's due process rights were not violated due to a three and one-half year delay in prosecuting the case where the delay was due in large part to some level of incompetence or inaction of the initial investigator and not to gain a tactical advantage or harass defendant, and defendant did not suffer any prejudice. State v. Golden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Oct. 23, 2020).

48. — —Indictment.

Defendant's due process right to a fair trial was not violated due to the fact that the 25-year pre-indictment delay resulted in the death of his alibi witness because the witness' death occurred after the indictment was obtained by the State and after the initial trial date. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 369 (Tenn. June 7, 2017).

Defendant's due process right to a fair trial was not violated by the pre-indictment delay of over 25 years because the record supported the trial court's finding that the cause of the delay was insufficient evidence to charge defendant for the victim's killing. Defendant was the sole suspect at the time of the offense and remained so until he was indicted, and it was not until an investigation beginning in 2011 that the State obtained statements from defendant's former wives implicating him in the victim's death. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 369 (Tenn. June 7, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper, as the delay in charging defendant with burglary was attributable to the State because it had evidence of defendant's ban from the store in question prior to her first trial and failed to investigate it, and the State's deficiencies did not provide a sound basis for burdening defendant with the addition of a felony offense after a mistrial. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary count in defendant's case was upheld on independent due process grounds; given the legislative history, T.C.A. § 39-14-402(a)(3) was never intended to cover buildings open to the public, and by charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting under T.C.A. §§ 39-14-105, 39-14-146, prosecutors are abusing their charging discretion by unreasonably expanding the reach of the burglary statute, and charging of burglary in these instances is unreasonable, unjust, and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper as the State failed to rebut the presumption of prosecutorial vindictiveness, regardless of whether the trial court explicitly relied on such; the State admitted it charged defendant with burglary following defendant's first mistrial because it intended use its discretionary charging authority to prosecute all banned, repeat shoplifters like defendant with burglary, which was retaliatory and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Because the blood alcohol concentration (BAC) evidence was suppressed, the trial court did not err by dismissing the count alleging DUI per se; however, the trial court erred by dismissing the indictment in its entirety because the grand jury could consider the suppressed evidence showing defendant's BAC level as the grand jury could consider evidence obtained in violation of an accused's constitutional rights; the State did not knowingly present false testimony; the officer's and the magistrate's testimony was not unfairly prejudicial to defendant in relation to the remaining indictment counts; and, even without the blood analysis results, the evidence was sufficient to permit the State to continue its prosecution of the remaining charges. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

49. — —Evidence.

If a witness' in-court identification, is tainted by an unconstitutional pretrial identification, then the in-court identification is not admissible in evidence. Holt v. State, 591 S.W.2d 785, 1979 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1979).

State's knowing use of false testimony to convict an accused is violative of the right to a fair and impartial trial as embodied in the due process clause of the U.S. Const. amend. 14 and Tenn. Const. art. I, §§ 8 and 9. State v. Spurlock, 874 S.W.2d 602, 1993 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1993).

As the preservation of a defendant's fundamental right to a fair trial is of paramount importance, the Tennessee supreme court has adopted a balancing approach, rather than a bad faith analysis, in determining whether the loss or destruction of evidence is so critical to the defendant as to make a criminal trial fundamentally unfair. State v. Ferguson, 2 S.W.3d 912, 1999 Tenn. LEXIS 426 (Tenn. 1999).

If proof demonstrates the failure of the state to preserve evidence where such a duty exists, the analysis then moves to a consideration of factors which should guide the decision regarding the consequences of the breach, including: (1) The degree of negligence involved; (2) The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and (3) The sufficiency of the other evidence used at trial to support the conviction. State v. Ferguson, 2 S.W.3d 912, 1999 Tenn. LEXIS 426 (Tenn. 1999).

Prosecutors' knowing use of defendant's confession, which contained many facts known to be false, did not violate defendant's due process rights because due process merely required the trial court to find that defendant confessed voluntarily and that the confession was minimally corroborated; once the two conditions were satisfied, the truth or falsity of the confession was a determination for the jury. The trial court found that defendant's confession was voluntary, and defendant did not challenge that finding on appeal; the confession was sufficiently corroborated by numerous witnesses. State v. Housler, 193 S.W.3d 476, 2006 Tenn. LEXIS 431 (Tenn. 2006), cert. denied, Housler v. Tennessee, 549 U.S. 994, 127 S. Ct. 499, 166 L. Ed. 2d 368, 2006 U.S. LEXIS 8048 (2006).

Trial court erred in denying defendant's motion to vacate, as violative of due process principles, his conviction for especially aggravated kidnapping under T.C.A. § 39-13-305(a)(1) because defendant successfully demonstrated that his movement of the victim was not beyond that necessary to complete his aggravated robbery. State v. White, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. May 12, 2010), rev'd, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012).

Trial court did not abuse its discretion in dismissing the charges of driving under the influence, reckless endangerment, and reckless driving on the basis that the state's loss of the video recording of the police officer's stop of defendant deprived defendant of a fair trial. The video recording became more significant in light of the relative strength of the state's case. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

Loss of the video recording of a police officer's stop of defendant deprived defendant of her right to a fair trial given that the lost evidence recorded defendant's conduct, which provided the factual basis for her charges. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

Trial court's determination of the appropriate remedy for the state's failure to preserve evidence is reviewed under an abuse of discretion standard. State v. Merriman, 410 S.W.3d 779, 2013 Tenn. LEXIS 641 (Tenn. Aug. 16, 2013).

Trial court did not err in denying defendants' motion to dismiss the case against them or strike an eyewitness's testimony because the degree of negligence in the State's failing to preserve the recording of the eyewitness's statement was simple negligence; the eyewitness consistently maintained before trial and during trial that both defendants were the shooters, and defense counsel had the eyewitness's transcribed statement; and the evidence was sufficient to support their convictions. State v. Swift, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 829 (Tenn. Oct. 24, 2016).

Evidence was sufficient to support defendant's conviction of especially aggravated kidnapping where the jury received the full White instruction, defendant and two others entered the victim's home, held the three victims at gunpoint for eight to 10 hours, and took property from all three, defendant sexually assaulted two of the victims, and the confinement lasted much longer than the time necessary to commit the other acts of robbery and sexual assault. State v. Cornelius Banks, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. Jan. 29, 2016).

State did not have a duty to preserve alarm clocks located next to the victim's bed, particularly where it was unclear whether they could have been collected without destroying the information they contained, which an investigator did collect by writing down that information. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Even though the trial court erred by failing to conduct an in camera review of an investigator's notes for exculpatory information, defendant was not entitled to relief because the notes did not contain any information that would have changed the outcome of the trial. State v. Hernandez, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Sept. 27, 2016).

Even though the lost or destroyed evidence implicated defendant's right to a fundamentally fair trial, the trial court did not abuse its discretion by denying defendant's motion to dismiss the indictment because the relevant evidence was not used to implicate defendant in the victim's killing, the remaining evidence was sufficient to support defendant's second-degree murder conviction, and defendant possessed sufficient information to impeach the credibility of the State's primary witnesses. State v. Hill, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 369 (Tenn. June 7, 2017).

There was no recording of defendant's admissions during a phone call, and nothing suggested that a recording of defendant's side of the conversation, if it existed, would have been exculpatory, and therefore defendant's claim that the State had a duty to preserve the evidence failed. State v. Smartt, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 193 (Tenn. Mar. 16, 2018).

Defendant was not entitled to relief on appeal when a portion of the recording of codefendant's interview was lost due to technical failure because the trial court did not err in its determination that defendant could have a fundamentally fair trial protected by adequate curative measures and that a dismissal was not warranted. Furthermore, the trial court's jury instructions were an appropriate and adequate remedy for the absence of a recording of a portion of codefendant's interview. State v. Sherrill, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Nov. 8, 2018).

50. — —Discovery.

In defendant's capital murder case, defendant's due process rights were not violated because the state withheld information regarding a witness where the information about which defendant complained could not reasonably be taken to put the case in such a different light as to undermine confidence either in defendant's convictions or his death sentence for the homicide. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

In a murder case, a court did not err when it failed to grant defendant's motion for a new trial based upon the state's failure to disclose exculpatory evidence to him where, the young age of the witness making the statements, and the fact that the statements did not exonerate defendant but simply implicated an additional shooter, the failure to establish the “materiality” of the favorable evidence defeated defendant's due process claim. State v. Hatcher, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept 15, 2004), cert. denied, Hatcher v. Tennessee, 126 S. Ct. 154, 163 L. Ed. 2d 154, 546 U.S. 867, 2005 U.S. LEXIS 5691 (U.S. 2005), review or rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 63 (Tenn. Jan. 24, 2005).

Defendant's conviction for first-degree murder was appropriate because he was not prejudiced by any improper conduct on the part of the state in part because, in regard to the photographic and descriptive information regarding the other individual who also had the same nickname, the record showed that this individual did not match the description provided by the eyewitnesses to the offense. Additionally, the trial court properly directed the state to allow defense counsel to review the statement of an alibi witness upon his request under Tenn. R. Evid. 613 because, although the witness was a prospective state witness, the defense ultimately called her as an alibi witness and the impeachment evidence which developed as a result did not exist until after the witness provided her direct testimony. State v. Anderson, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 9, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 846 (Tenn. Sept. 1, 2010), cert. denied, Anderson v. Tennessee, 562 U.S. 1154, 131 S. Ct. 947, 178 L. Ed. 2d 782, 2011 U.S. LEXIS 191 (U.S. 2011).

Prosecution violated defendant's constitutional right to due process by failing to provide to the defense the third statement of a witness to the police until after the trial, and the State of Tennessee did not prove that the error was harmless as the third statement differed from the accounts the witness had given in the first and second statements of the witness and could have been used to impeach the testimony of the witness at trial. State v. Jackson, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

Defendant failed to show that the State suppressed the police file he sought or that the State knew the victim worked as a confidential informant, which she did after the incident in this case and that it was unrelated to defendant; nothing about the victim's working for the police reflected a reasonable probability that the result of the trial would have been different had the file been disclosed to the defense. State v. Henry, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. Jan. 16, 2015).

There was no any obvious exculpatory, favorable, or material value of the information that a detective's initial search of the database returned results that failed to narrow the field of possible suspects in any meaningful manner; no Brady disclosure was required. State v. Sails, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Aug. 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1021 (Tenn. Dec. 10, 2015).

Record did not reflect that defendant requested Brady material other than one recorded statement, and the evidence in question was not viewed as having any obvious exculpatory value and was not subject to Brady disclosure; the information that the witness initially minimized his own involvement had no bearing on defendant's culpability, and although the evidence was relevant to impeach the witness, the information was developed at the trial, and defense counsel thoroughly cross-examined him about the inconsistencies. State v. Sails, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Aug. 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1021 (Tenn. Dec. 10, 2015).

The trial court reviewed the victim's DCS file as the appellant had requested and determined that it did not contain Brady material. Nothing indicates that the file contained exculpatory information. Therefore, we conclude that the trial court did not err by refusing to review the file again or by denying counsel's request to review it. State v. Whitehair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 741 (Tenn. Oct. 20, 2016).

Defendant's right to a fair trial was not violated by the State's failure to preserve evidence of the victim's cellphone and the cellphone records regarding texts between defendant and the victim and to turn over exculpatory evidence to defendant because there was nothing in the record affirmatively establishing that the victim's cellphone records were unobtainable from her provider at the time requested by the defense; there was no documentation of any attempt to obtain the relevant records from defendant's cellphone provider; and defendant acknowledged that the desired information would have been available to him had he been able to locate his own cell phone. State v. Freeman, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 179 (Tenn. Crim. App. Mar. 10, 2016).

Police detective's actions in destroying compact discs that contained witness statements did not deprive defendant of a fair trial because defendant obtained access to the statements before the trial, the detective testified at defendant's trial regarding the matter, and defendant had the opportunity to cross-examine the detective at trial. Furthermore, despite defendant's concern that the detective may have engaged in undiscovered misconduct, defendant did not present proof of any misconduct. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Defendant was not deprived of the constitutional right to a fair trial because the evidence did not preponderate against the post-conviction court's finding that defense counsel knew before the trial all the impeachment evidence contained in a report of codefendant's criminal history that was not disclosed by the prosecution before the trial. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Post-conviction court properly denied petitioner relief because there was no Brady violation; there was no evidence that trial counsel made a specific request for a police report, which would have triggered the State's duty to disclose the report, and petitioner failed to show that a witness's subsequent testimony was material since it did not discredit a codefendant's trial testimony, which was the key to the State's case. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Because a police report containing a witness's statement was not included in the pre-trial discovery provided to trial counsel, despite the State's open-file discovery policy, and was not disclosed after the victim's testimony rendered the impeaching nature of the evidence apparent, the State did suppress evidence. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Although defendant argued in a DUI case that the State committed a Brady violation by failing to disclose an exculpatory statement made by passenger to a deputy, the passenger's statement was not favorable to the defense, nor was it material. Because defendant did not establish all four prerequisites to establish a Brady violation, he was not entitled to relief on this issue. State v. Pratt, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 634 (Tenn. Crim. App. Aug. 20, 2018).

Despite the trial court's failure to analyze defendant's Brady claims properly, the trial court did not err in denying defendant's Brady claim as to a mistake regarding release eligibility pursuant to the original plea agreement of a State of Tennessee witness in exchange for the witness testifying against defendant and as to the charge and subsequent plea agreement of the witness in a neighboring county to an offense involving sexual conduct with the victim's brother. State v. Sherrill, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Nov. 8, 2018).

Defendant, who complained that the State committed a Brady violation by failing to disclose to the defense prior to trial that his blood sample was contaminated with naphthalene, did not establish all four prerequisites to establish a Brady violation. Consequently, defendant was not entitled to relief on this issue. State v. Brewer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 221 (Tenn. Crim. App. Apr. 6, 2020).

Even though the court held that defendant was entitled to Brady material at the juvenile transfer hearing, the information concerning other potential suspects was neither favorable nor material to the hearing because the individuals did not appear to be legitimate suspects but rather stray leads that were dismissed early in the case. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

Trial court did not err by denying defendant's motion to dismiss based upon lost or destroyed evidence of recordings from a deputy's dash and body cameras utilized at time of a traffic stop and by providing a jury instruction relative to the State of Tennessee's duty to preserve evidence because the nonexistence of the recordings occurred through inadvertence and was due to an equipment malfunction and other evidence, including defendant's incriminating statements during a police interview at the jail, was sufficient to support the convictions. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. Aug. 7, 2020).

When the existence of photographs were not disclosed until a sheriff's sergeant testified at trial to having taken photographs with the sergeant's cell phone of the heroin and cocaine found at the scene of a traffic stop but to forgetting about the photographs until the sergeant's trial testimony, defendant was not entitled to relief because the photographs were inculpatory and would have corroborated the testimony of witnesses about the events during the traffic stop and the result of the proceeding would not have been different. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. Aug. 7, 2020).

51. — —Prosecutorial Comments.

State's argument to the jury that the homicide was a “terrible, heinous, atrocious, brutal, senseless killing of one of ours,” while perhaps imprudently spoken, did not rise to the level of reversible error. State v. Gregory, 862 S.W.2d 574, 1993 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1993).

In trial for first degree premeditated homicide, prosecutor did not improperly divert the jury's attention away from defendant by invoking the memory of victim, and therefore did not violate Tenn. Const. art. I, §§ 8 and 16. State v. Brimmer, 876 S.W.2d 75, 1994 Tenn. LEXIS 15 (Tenn. 1994), rehearing denied, 876 S.W.2d 75, 1994 Tenn. LEXIS 136 (1994), cert. denied, Brimmer v. Tennessee, 513 U.S. 1020, 115 S. Ct. 585, 130 L. Ed. 2d 499, 1994 U.S. LEXIS 8413 (1994).

The state's characterization of defendant's mitigating evidence as an “excuse” and argument that the sentencing hearing was about “responsibility” did not distort the evidence or mislead the jury as to the issue before it. State v. Smith, 893 S.W.2d 908, 1994 Tenn. LEXIS 278 (Tenn. 1994), rehearing denied, 893 S.W.2d 908, 1995 Tenn. LEXIS 48 (Tenn. 1995), cert. denied, Smith v. Tennessee, 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53, 1995 U.S. LEXIS 5601 (1995).

Dismissal of an otherwise valid indictment returned by a grand jury may be appropriate where prosecutorial misconduct denies a defendant the constitutional right to due process. State v. Culbreath, 30 S.W.3d 309, 2000 Tenn. LEXIS 588 (Tenn. 2000).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the prosecutor's objections at defendant's resentencing hearing did not deprive defendant a fair trial nor violate any of his constitutional rights under the U.S. Constitution or Tenn. Const. art. I, § 8 and Tenn. Const. art. I, § 16; while some series of objections were incessant, there was no indication in the record that the objections were without legal basis or were made merely as an attempt to comment upon the credibility of the testimony. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

Although the prosecutor lacked a good faith basis for asking defendant about her termination from a job, defendant was not entitled to relief, because it was unlikely that the improper questions affected the outcome. State v. Taylor, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Sept. 30, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 70 (Tenn. Jan. 16, 2015), cert. denied, Taylor v. Tennessee, 192 L. Ed. 2d 158, 135 S. Ct. 2368, — U.S. —, 2015 U.S. LEXIS 3523 (U.S. 2015).

52. Fair Trial.

Destruction of a blood sample prior to defendant's being indicted did not deprive defendant of the ability to have the sample independently tested because the State had no duty to preserve the evidence, and it destroyed the evidence in accordance with established Tennessee Bureau of Investigation (TBI) policy; the TBI's policy was to keep samples for a minimum of sixty days, and the TBI did not destroy defendant's blood sample until well-beyond that sixty-day requirement. State v. Riddle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1044 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 322 (Tenn. May 5, 2016).

While the State had a duty to preserve the stolen items, the destruction was not attributable to the State's negligence and, even if counsel was deficient regarding the Ferguson issue, the inmate failed to prove prejudice given the evidence supporting the inmate's conviction. Mayers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 604 (Tenn. Aug. 18, 2016).

It was not an abuse of discretion to dismiss an indictment charging defendant with vehicular assault because the loss of the video taken from a trooper's patrol car would deprive him of a fair trial; the lost video was significant because it recorded defendant's alleged admission, if defendant did not say on the video he was the driver, the trooper would not testify at trial that he made the admission, and the State never indicated it would use an occupant's testimony as to who was driving. State v. Smithson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 18, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 580 (Tenn. Aug. 18, 2016).

Defendant was not deprived of the constitutional right to a fair trial because codefendant testified that codefendant had no agreement with the State of Connecticut regarding leniency in return for codefendant's testimony at trial, which was consistent with post-conviction testimony of the prosecutors and codefendant's defense counsel, and the post-conviction court found that no agreement existed. Furthermore, defendant testified at the post-conviction hearing that defendant had no proof codefendant lied at the trial. Lister v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. Apr. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 693 (Tenn. Sept. 23, 2016).

Destruction of defendant's blood sample did not violate defendant's due process rights because the State did not have a duty to preserve the blood past the date it was destroyed, as blood could not be preserved indefinitely, it had been preserved for over one year, and defendant failed in her obligation to secure the sample. The presence of the prescription drug in defendant's blood was not apparently exculpatory because it would not have been relevant to negating any mental state as DUI was a strict liability offense and defendant, who voluntarily ingested alcohol and the prescription drug, could not claim that her subsequent actions were involuntary. State v. Blair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 863 (Tenn. Crim. App. Nov. 16, 2016).

Defendant's right to a fair trial was not violated when the prosecutor used the term “rape” in closing arguments, it was not so inflammatory that it likely affected the the outcome of the trial given the daughter's testimony that she did not consent to defendant's sexual abuse and defendant's failure to object at trial. State v. Hawkins, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017).

Defendant could not show plain error when the State of Tennessee did not preserve a toaster oven which a retail store sold at a discount after defendant allegedly removed the item from its box and placed items which defendant removed from the store in the box because the State had no duty to preserve the toaster oven, which defendant claimed would have potentially provided exculpatory evidence, as the State never had possession of the toaster oven. State v. Craig, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. Apr. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 530 (Tenn. Aug. 13, 2018).

Trial court did not err by denying defendant's motion to exclude testimony regarding the missing portion of a surveillance video; the State did not have a duty to collect a complete copy of the video, the video was privately owned and never in the State's control, the State did not lose or destroy the video and instead preserved the portion it obtained and introduced at trial, and a detective testified that he did not request a complete copy because he was merely verifying the accuracy of the information a witness provided. State v. Crowell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. Aug. 16, 2018).

Because the trial court afforded defendant the opportunity for a mental evaluation, and his own conduct was the reason no evaluation was performed, he could not be heard to complain on appeal that he did not receive the evaluation. He failed to carry his burden of demonstrating incompetency because he refused to cooperate with a mental evaluation geared toward determining whether incompetency existed and the evidence of record did not establish that he was incompetent. State v. Myers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 30, 2019).

Law enforcement's failure to preserve a videotape made by an evidence technician and provide it to the defense did not plainly violate Brady because the evidence does not show that the recording was material, as a recording of one of the investigating detectives using a racial slur would not have cast doubt on defendant's identity as the perpetrator as defendant had admitted that there was no African-American suspect. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 21, 2019).

Trial court did not err by declining to give a limiting instruction regarding the State's duty to preserve the identity of a witness who spoke to police after a robbery because the State had no duty to collect an unnamed woman's identifying information; the woman's description of the man she saw fleeing was not more detailed than that of the victims, extensive identity testimony was presented at trial, and the sufficiency of the evidence regarding identity was not at issue. State v. Atha, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 588 (Tenn. Crim. App. Sept. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 41 (Tenn. Jan. 15, 2020).

53. — Jury Instructions.

In felony-murder trial, trial court's instruction to jury that it must find proof “beyond a reasonable doubt” and be convinced to a “moral certainty” of the existence of the aggravating circumstances and of the fact that they outweighed the mitigating circumstances was not a lower burden of proof than evidentiary certainty, and was not violative of the due process clauses of the state and federal constitutions. State v. Nichols, 877 S.W.2d 722, 1994 Tenn. LEXIS 135 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 202 (1994), cert. denied, Nichols v. Tennessee, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791, 1995 U.S. LEXIS 589 (1995).

Former § 40-35-201(b)(2)'s provision for jury instructions including an explanation of early release and parole eligibility did not violate defendant's right to due process since the instructions given complied with the statute and were not inaccurate, the provision was not impermissably vague, sentencing and parole information is not entirely irrelevant to the jury's determination, and the jurors were instructed that the information was not to be considered in the determination of guilt or innocence. State v. King, 973 S.W.2d 586, 1998 Tenn. LEXIS 424 (Tenn. 1998).

Post-conviction relief petition was properly summarily dismissed, because petitioner failed to show that he was deprived of due process by jury instructions for second degree murder which failed, like those in State v. Page , 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002), to specify that a second degree murder was a result-of-conduct offense; because petitioner was convicted of first degree, premeditated murder, any failure of the trial court to adequately instruct the jury under Page was harmless beyond a reasonable doubt. O'Baner v. State, 159 S.W.3d 605, 2004 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1023 (Tenn. Nov. 15, 2004), cert. denied, O'Baner v. Tennessee, 544 U.S. 999, 125 S. Ct. 1933, 161 L. Ed. 2d 773, 2005 U.S. LEXIS 3553 (2005).

State's failure to make a proper election of offenses deprived defendant of the right to a unanimous jury verdict because the state repeatedly told the jury that it was not necessary for them to determine unanimously which sworn testimony amounted to perjury, and therefore, the jury was invited to reach a “patchwork verdict.” State v. Buford, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Aug. 18, 2005), rev'd, 216 S.W.3d 323, 2007 Tenn. LEXIS 315 (Tenn. 2007).

It was doubtful that anything discovered on the victim's cellphone would have shed light on whether defendant reasonably feared he was in danger of imminent death, and while the contents of the victim's phone might have shown that he was sending angry messages to third parties, no evidence supported this claim, and it was undisputed that the victim had repeatedly yelled at and threatened to kill defendant; the phone data was in the control of a third party, defendant could have obtained comparable evidence by other reasonably available means but chose not to do so, and the denial of defendant's request for a jury instruction in this regard was not error. State v. Ferrell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Nov. 18, 2016).

Jury instruction on possessing a firearm with intent to go armed during commission of a dangerous felony was plain error because (1) the record showed what occurred at trial, (2) the instruction breached an unequivocal rule of law by stating defendant could be guilty for acting knowingly or recklessly, when the mens rea was intentionally, (3) defendant's substantial right was adversely affected by lessening the State's burden of proof, violating defendant's rights to a fair trial and a jury trial, (4) defendant did not tactically waive the issue, and (5) it was necessary to consider the error to do substantial justice, as the error likely changed the trial's outcome. State v. Watkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 5, 2017).

54. — Sentencing.

The admission of evidence of the defendant's prior criminal behavior as an enhancement factor in sentencing does not violate the defendant's right to due process. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

Inmate's contention that he was sentenced to death in violation of due process, contending that to satisfy Apprendi the indictment had to include language of the statutory aggravating circumstances to elevate the offense to capital murder, was rejected because the argument had previously been rejected by the Tennessee supreme court. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Statute violates substantive due process principles; without a requirement that the offense be related to a defendant's criminal gang membership, the court fails to comprehend how the second subsection is reasonably related to the goal of deterring criminal gang activity, and the statute unconstitutionally abridges substantive due process. State v. Stripling, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 16, 2016).

Statute subjects the defendant to conviction for a higher degree crime than originally charged, resulting in an increased penalty range, based only upon a defendant's simple association with others, who may or may not be criminals, and the statute runs afoul of due process. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

While defendant was a gang member and he committed the crimes at issue, there was no evidence tying his assault to any sort of gang activity, and his sentences were enhanced based solely on his membership in the gang; the statute offends the principle of due process because it fails to tie membership in a gang to the offense at issue, and because the version of the gang enhancement statute in effect at the time of defendant's convictions was unconstitutional, these enhancements were vacated. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

55. — Extradition.

Mere irregularities in extradition would not vitiate the extradition; the conduct must be of a most shocking and outrageous character. Sneed v. State, 872 S.W.2d 930, 1993 Tenn. Crim. App. LEXIS 117 (Tenn. Crim. App. 1993).

56. — Jury Deliberations.

In first degree murder trial, defendant was not deprived of due process or denied a fair trial due to jury deliberations where after five (5) full days of trial the jury deliberated late at night at its hotel and delivered its verdict early Sunday morning. State v. Hurley, 876 S.W.2d 57, 1993 Tenn. LEXIS 150 (Tenn. 1993), cert. denied, Hurley v. Tennessee, 513 U.S. 933, 115 S. Ct. 328, 130 L. Ed. 2d 287, 1994 U.S. LEXIS 7172 (1994), superseded by statute as stated in, State v. Price, 46 S.W.3d 785, 2000 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. 2000), superseded by statute as stated in, State v. Powers, — S.W.3d —, 2002 Tenn. LEXIS 768 (Tenn. Jan. 6, 2002), superseded by statute as stated in, State v. Powers, 101 S.W.3d 383, 2003 Tenn. LEXIS 2 (Tenn. 2003).

57. — Directed Verdict.

Even though proof of guilt is conclusive, the issue of guilt should be submitted to the jury on a plea of not guilty; there is no provision in this state or any other jurisdiction for the trial judge to order a verdict of conviction. State v. Davis, 637 S.W.2d 471, 1982 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 1982).

58. — Death Penalty.

Statutes pertaining to sentencing for first degree murder and appeal and review of a death sentence are not violative of the U.S. Const. amends. 5, 6, 8, and 14, nor of Tenn. Const. art. I, §§ 8, 9, 16, and 17, and Tenn. Const. art. II, § 2. State v. Shepherd, 902 S.W.2d 895, 1995 Tenn. LEXIS 269 (Tenn. 1995).

Inmate failed to show that Tennessee's lethal injection protocol violated due process under U.S. Const. amend. 14, or Tenn. Const. art. I, § 1 because the inmate failed to cite authority that the adoption of the lethal injection protocol violated procedural due process and the method of lethal injection was created by the legislature and that the implementation of lethal injection was left to the department of correction pursuant to T.C.A. § 40-23-114(c); further, the department was not subject to the notice and approval provisions of the Uniform Administrative Procedures Act (UAPA) because department procedures were not “rules” as defined by the UAPA because they fit squarely into the exceptions under T.C.A. § 4-5-102. Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 2005 Tenn. LEXIS 828 (Tenn. 2005), cert. denied, 547 U.S. 1147, 126 S. Ct. 2288, 164 L. Ed. 2d 813, 2006 U.S. LEXIS 3970 (2006).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the waiver of his right to testify at his sentencing hearing was knowing, intelligent, and voluntary as required by the U.S. Constitution and Tenn. Const. art. I, §§ 8, 9, and 16; the appellate court rejected defendant's argument that he was not sufficiently advised of the salient consequences of exercising his fundamental constitutional right to testify. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

59. — — Competency to be Executed.

The only relevant constitutional concern at a competency-to-be-executed hearing is the right to have the substantive eighth amendment claim determined in a manner that comports with procedural due process. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

A prisoner is not competent to be executed if the prisoner lacks the mental capacity to understand the fact of the impending execution and the reason for it. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

60. Post-Conviction Relief.

The state is not required to provide expert assistance to indigent non-capital post-conviction petitioners. Davis v. State, 912 S.W.2d 689, 1995 Tenn. LEXIS 691 (Tenn. 1995), superseded by statute as stated in, Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016).

Juveniles adjudged delinquent on the basis of an offense which would be a felony if committed by an adult are not entitled by the Tennessee constitution to a jury trial upon their de novo appeal to circuit court. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

Prisoner's case did not warrant due process tolling of the post-conviction statute of limitations because he did not diligently pursue his rights when did not file his petition in the intervening years after his discovery of the undisclosed sentence. Bush v. State, 428 S.W.3d 1, 2014 Tenn. LEXIS 16 (Tenn. Jan. 28, 2014).

Inmate was not entitled to post-conviction relief for the State's failure to preserve evidence because the inmate waived such a freestanding claim by not raising the claim on direct appeal. Carroll v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 5, 2018).

Inmate was not entitled to post-conviction relief for ineffective assistance of counsel because, (1) as to counsel's failure to move to dismiss for the State's failure to preserve evidence, it was not apparent the evidence had to be preserved, and reliable substitute evidence existed, and, (2) as to counsel's alleged advice to waive a direct appeal, sufficient evidence supported the inmate's conviction such that the inmate was not prejudiced, the inmate admitted counsel actually told the inmate an appeal would not succeed, and the inmate admitted the inmate waived a direct appeal because the inmate thought an appeal would be a waste of time. Carroll v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 5, 2018).

61. Early Release.

Exclusion of defendant from consideration for early release in accordance with a declaration of the governor directing the department of correction and parole board not to consider inmates convicted of homicide for release under the early release program did not violate due process since defendant did not have a vested right to early release or to be considered for early release. Kaylor v. Bradley, 912 S.W.2d 728, 1995 Tenn. App. LEXIS 523 (Tenn. Ct. App. 1995).

62. Invasion of Privacy.

A state law cause of action for invasion of privacy could not be maintained on the assertion that the mayor, chief of police, and various police officers engaged in surveillance of union meetings held at a public place, recorded the license tag numbers of persons attending the meetings, and then upon checking on the registrations of such license tag numbers, furnished such information to the employer of a number of persons attending the union meeting. International Union v. Garner, 601 F. Supp. 187, 1985 U.S. Dist. LEXIS 23113 (M.D. Tenn. 1985).

63. Police Power.

When the local police regulation has real relation to the suitable protection of the people of the state, and it is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce. State v. McKay, 137 Tenn. 280, 193 S.W. 99, 1916 Tenn. LEXIS 77 (1916).

The legislature may impose any limitation upon the use of property which it deems necessary or expedient to promote and protect the safety, health, morals, comfort, and welfare of the people, provided only that the power is not used arbitrarily, without reasonable relation between the limitations imposed and the public safety, health or welfare. Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, 1926 Tenn. LEXIS 22 (1927).

Statute requiring operators of coal mines, employing more than 50 persons, to provide suitable building, equipped with shower baths and lockers, for the use and benefit of employees, does not violate constitutional provisions, the statute being a valid exercise of police power and the classification not being unreasonable. Sun Coal Co. v. State, 157 Tenn. 522, 11 S.W.2d 893, 1928 Tenn. LEXIS 214 (1928).

The reasonableness of the exercise of the police power of the state must be considered in the light of the economic conditions existing at the time of the enactment. Mascari v. International Brotherhood of Teamsters, etc., 187 Tenn. 345, 215 S.W.2d 779, 1948 Tenn. LEXIS 434 (1948), cert. dismissed, International Brotherhood, T. C. W. & H. v. Mascari, 335 U.S. 907, 69 S. Ct. 410, 93 L. Ed. 440, 1949 U.S. LEXIS 3035 (1949).

The classification in a zoning regulation between mobile homes and regular residences was not constitutionally impermissible and, since it bore a reasonable relationship to the public health, safety or morals, it must be sustained as a valid exercise of police power. Mobile Home City v. Hamilton County, 552 S.W.2d 86, 1976 Tenn. App. LEXIS 207 (Tenn. Ct. App. 1976), cert. denied, Mobile Home City, Inc. v. Hamilton County, 431 U.S. 956, 97 S. Ct. 2678, 53 L. Ed. 2d 273, 1977 U.S. LEXIS 2271 (1977).

Whether the police power of the city is exercised directly by the governing body or through one of its local agencies is usually deemed to be immaterial, so long as the exercise lies within authority expressly or impliedly granted to the municipal corporation by general state law or by its charter provisions. Draper v. Haynes, 567 S.W.2d 462, 1978 Tenn. LEXIS 604 (Tenn. 1978).

64. —Alcohol.

While it is lawful to sell, in this state, intoxicating liquors (such as whisky, brandy, wine, beer, and ale), for medical and other nonbeverage purposes, still it is within the police power of the state to forbid the manufacture of such liquors for sale. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The whole body of the criminal law is but a branch of the police power, under which men and women may be deprived of their liberty and their lives, and there is nothing in the manufacture of whisky greater than these. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The state has the power to enact legislation totally prohibiting the manufacture and sale of intoxicating liquors. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Although it is lawful to sell intoxicating liquors in this state for medical, mechanical, and scientific purposes, the manufacture of such articles in this state, though in and of itself not immoral, may be prohibited, because of the great opportunity, afforded by the presence of breweries and distilleries, for aiding those whose purpose and desire to violate the laws prohibiting the sale of intoxicating liquors as a beverage, and because of the temptation on the part of the brewers and distillers themselves to encourage such violations in order to make profits. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The state legislature has the constitutional power to enact laws prohibiting the manufacture of intoxicating liquors for sale and exportation to other states and countries; and a statute allowing the manufacture of intoxicating liquors “for purposes of sale,” but not “for purposes of sale as a beverage within the state of Tennessee,” can only mean that the manufacture is for the purpose of sale abroad, and also for the purpose of sale in Tennessee for medical, mechanical, and scientific purposes. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

The business of selling beer is subject to unlimited restrictions; such restrictions even to the extent of a prohibition are not “unreasonably oppressive,” discriminatory, nor violate any civil right of beer licensees, and a city ordinance prohibiting the sale of beer does not violate Tenn. Const. art. I, § 8. Grubb v. Morristown, 185 Tenn. 114, 203 S.W.2d 593, 1947 Tenn. LEXIS 310 (1947).

Where the alcoholic beverage commission promulgated a regulation requiring its permission to transfer liquor distributorships, there was no denial of due process since the commission acted pursuant to powers delegated by the legislature which has unlimited powers of regulation and restrictions on the liquor traffic within the state. Seagram Distillers Co. v. Jones, 548 S.W.2d 667, 1976 Tenn. App. LEXIS 226 (Tenn. Ct. App. 1976), appeal dismissed, Joseph E. Seagram & Sons, Inc. v. Jones, 432 U.S. 901, 97 S. Ct. 2943, 53 L. Ed. 2d 1074, 1977 U.S. LEXIS 2457 (1977).

The .08 percent presumption of intoxication in former T.C.A. § 55-10-408(b), which is lower than the .10 percent presumption applied in first-offense DUI cases, is rationally related to the state's legitimate interest in deterring repeat DUI offenders and does not violate the equal protection provisions of Tenn. Const. art. I, § 8, U. S. Const. amend. 14, or Tenn. Const. art. XI, § 8. State v. Robinson, 29 S.W.3d 476, 2000 Tenn. LEXIS 583 (Tenn. 2000).

Inasmuch as the pre-existing subsections of Chattanooga, Tenn., City Code § 5-47, established the hours during which the City prohibited beer sales, no rational basis related to the public health, morals, and safety of the City's people existed to require that all beer permit holders, regardless of their type of business, close completely during those hours, and thus Chattanooga, Tenn., City Code § 5-47(c), violated Tenn. Const. art. I, § 8. G & N Rest. Group, Inc. v. City of Chattanooga, — S.W.3d —, 2014 Tenn. App. LEXIS 634 (Tenn. Ct. App. Oct. 8, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 201 (Tenn. Mar. 11, 2015).

Trial court did not err in finding that Chattanooga, Tenn., City Code § 5-47, did not violate the bar owners' equal protection rights where it applied to all permittees equally. G & N Rest. Group, Inc. v. City of Chattanooga, — S.W.3d —, 2014 Tenn. App. LEXIS 634 (Tenn. Ct. App. Oct. 8, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 201 (Tenn. Mar. 11, 2015).

65. —Animals.

Tenn. Const. art. I, § 8 is not violated by an act requiring registration and license fee to keep a female dog, the act being designed to regulate dogs and the tax being only an incident of such object. State v. Erwin, 139 Tenn. 341, 200 S.W. 973, 1917 Tenn. LEXIS 110 (1917).

Private statute regulating the keeping of dogs is not violative of constitution, being within the police power of the state, though it applies only to certain named counties and though it provides for the summary destruction of dogs kept in violation of law. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

A dog law passed as a revenue measure may be unconstitutional. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

66. —Business and Occupations.

Where the classification of corporations or of employers is natural and reasonable, and based upon some distinctive difference in the business of the several classes, a difference peculiar to and inhering in its very nature, it is valid; but legislation that affects certain acts of corporations, and does not affect similar acts by individuals and firms, as where the application of the statute is made to depend solely upon the fact whether the employer is a natural or artificial person, between which, within the constitutional provisions invoked, Tenn. Const. art. I, § 8, and Tenn. Const. art. XI, § 8, and U. S. Const. amend. 14, there is no distinction, is class legislation, and denies to corporations the equal protection of the laws. State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

Constitutional provisions not violated by act authorizing issuance of long term bonds and notes in large amounts, and limiting interest rates thereon, the classification being reasonable. Caldwell & Co. v. Lea, 152 Tenn. 48, 272 S.W. 715, 1924 Tenn. LEXIS 101 (1925).

Constitutional provisions are not violated by act regulating cemeteries in and near cities, which is valid exercise of police power. Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132, 1929 Tenn. LEXIS 123 (1929), appeal dismissed, 283 U.S. 791, 51 S. Ct. 363, 75 L. Ed. 1417, 1931 U.S. LEXIS 194 (1931).

Tenn. Const. art. I, § 8 is not violated by an act, regulating the small loan business, which applies to all similarly situated within the class affected, those engaged in such business constituting a distinctive class. Koen v. State, 162 Tenn. 573, 39 S.W.2d 283, 1930 Tenn. LEXIS 126 (Tenn. Dec. 1930).

The granting and enforcement of an exclusive franchise to an electric company by the public utilities commission did not violate the rights of a competitor under Tenn. Const. art. I, § 8, but was a valid exercise of police power. Holston River Electric Co. v. Hydro Electric Corp., 17 Tenn. App. 122, 66 S.W.2d 217, 1933 Tenn. App. LEXIS 50 (Tenn. Ct. App. 1933).

Statute providing for licensing of motor transportation agents and motor freight brokers and requiring bonds of applicants for license to cover losses under contracts and negligent operation of vehicles does not violate Tenn. Const. art. I, § 8, since legislature in its discretion and in exercise of the police power can regulate any occupation or business, if the occupation or business has inherent within it the germs of fraud or danger to public safety. Bowen v. Hannah, 167 Tenn. 451, 71 S.W.2d 672, 1933 Tenn. LEXIS 61 (1934).

Legislation classifying occupations for purpose of taxation will be held constitutional if there is any reason justifying classification. Sterchi Bros. Stores v. Wallace, 168 Tenn. 299, 77 S.W.2d 807, 1934 Tenn. LEXIS 57 (1934).

City ordinance requiring the examination and licensing of electricians was not invalid because it exempted public service corporation employees and employees of manufacturing concerns doing work in the plant of such manufacturer such exemptions not being an unreasonable classification. Hughes v. Board of Comm'rs, 204 Tenn. 298, 319 S.W.2d 481, 1958 Tenn. LEXIS 271 (1958).

The practice of public accounting is a highly skilled and technical business or profession and may be regulated by the legislature within proper limits but statute regulating same may not be extended to preclude the right of an individual to engage in ordinary bookkeeping services in matters of purely private concern. State ex rel. State Board of Accountancy v. Bookkeepers Business Service Co., 53 Tenn. App. 350, 382 S.W.2d 559, 1964 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1964).

Insurance companies may constitutionally be subjected to regulations not applicable to other business enterprises. Massachusetts Mut. Life Ins. Co. v. Vogue, Inc., 54 Tenn. App. 624, 393 S.W.2d 164, 1965 Tenn. App. LEXIS 282 (Tenn. Ct. App. 1965).

It was not arbitrary or unreasonable to place the business of termite extermination in a single class separate and apart from other pest control businesses for the purpose of regulation. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

Judicial review of an administrative decision upholding a request for patient records in a medical license proceeding provides the same sort of judicial review that T.C.A. § 8-6-404 provides for civil investigative demands issued by the attorney general and reporter; accordingly, State ex rel. Shriver v. Leech , 612 S.W.2d 454, 1981 Tenn. LEXIS 412, provides no support for the trial court's conclusion that former T.C.A. § 63-1-117(a)(3) is unconstitutional. McNiel v. Cooper, 241 S.W.3d 886, 2007 Tenn. App. LEXIS 241 (Tenn. Ct. App. Mar. 30, 2007).

The limiting of the application of the Health Club Bond Act to for-profit corporations is not arbitrary or discriminatory and is not violative of the equal protection guaranteed by the federal or state constitutions. State v. Southern Fitness & Health, Inc., 743 S.W.2d 160, 1987 Tenn. LEXIS 1083 (Tenn. 1987).

The limiting of the Health Club Bond Act to agreements of three months or longer has a rational basis and is related to the legitimate legislative objective of limiting consumer loss due to a health club's inability to fulfill its obligations under its membership agreements. State v. Southern Fitness & Health, Inc., 743 S.W.2d 160, 1987 Tenn. LEXIS 1083 (Tenn. 1987).

The 1986 amendment creating an exemption from the bonding requirement for health clubs that have been operated for at least five years under the same ownership is directly and reasonably related to the legitimate legislative objective which is to limit consumer loss due to a health club's inability to satisfy its obligations under its membership agreements. State v. Southern Fitness & Health, Inc., 743 S.W.2d 160, 1987 Tenn. LEXIS 1083 (Tenn. 1987).

Insofar as it prohibits telephone solicitations by professional solicitors, § 48-3-513(i) (repealed) is unconstitutional and in violation of U.S. Const. amends. 1 and 14, and Tenn. Const. art. I, §§ 8 and 19. WRG Enterprises, Inc. v. Crowell, 758 S.W.2d 214, 1988 Tenn. LEXIS 176 (Tenn. 1988).

A percentage-based regulation upon the fees to be collected by professional solicitors is an unconstitutional invasion upon the rights of charities and fund raisers alike. Section 48-3-513(k) (repealed) falls within the ambit of that prohibition, and violates U.S. Const. amends. 1 and 14, and Tenn. Const. art. I, §§ 8 and 19. WRG Enterprises, Inc. v. Crowell, 758 S.W.2d 214, 1988 Tenn. LEXIS 176 (Tenn. 1988).

A metropolitan government need only have a rational basis for its decision to prohibit certain acts in establishments selling beer when the same prohibition does not extend to all public places. PP & C, Inc. v. Metropolitan Beer Permit Bd., 833 S.W.2d 90, 1992 Tenn. App. LEXIS 91 (Tenn. Ct. App. 1992).

67. —Prevention of Fraud.

The prevention of fraud in general is within the police power of the state; and statutes enacted for the prevention of fraud, and which have a fair, just, and reasonable relation to the preservation of the lives, health, morals, and the general welfare of the public, do not contravene the constitutional provisions against the abridgement of the rights of persons to contract and against the deprivation of their liberty and property, without due process of law, under Tenn. Const. art. I, § 8 or the U.S. Const. amend. 14, although such statutes may interfere to some extent with individual liberty and the free use and enjoyment of private property. State v. Cooperative Store Co., 123 Tenn. 399, 131 S.W. 867, 1910 Tenn. LEXIS 13 (1910); Cantrell v. Ring, 125 Tenn. 472, 145 S.W. 166, 1911 Tenn. LEXIS 41 (Tenn. Dec. 1911), criticized, Teague Bros., Inc. v. Martin & Bayley, Inc., 750 S.W.2d 152, 1987 Tenn. App. LEXIS 3040 (Tenn. Ct. App. 1987), criticized, McCallum v. Stem, 23 F.2d 491, 1928 U.S. App. LEXIS 3197 (6th Cir. Tenn. Jan. 6, 1928); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911); Bird v. State, 131 Tenn. 518, 175 S.W. 554, 1914 Tenn. LEXIS 124 (1915).

City ordinance regulating sale of personal property by auction within city limits for the purpose of preventing frauds was valid under the police power though certain provisions of ordinance were held invalid where deleted provisions left an ordinance capable of being enforced. Jones v. Jackson, 195 Tenn. 329, 259 S.W.2d 649, 1953 Tenn. LEXIS 345 (1953).

In order to prevent fraud and to make the violation of law more difficult, acts which in themselves are harmless may be prohibited; and as an aid to the enforcement of our laws against the sale of liquor, statutes regulating the shipment and delivery of liquor constitute a valid exercise of the police power of the state. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911); State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914); Bird v. State, 131 Tenn. 518, 175 S.W. 554, 1914 Tenn. LEXIS 124 (1915).

68. Classification.

Citizens may be classified under Tenn. Const. art. I, § 8, when the object of the legislature is to subject them to the burden of certain disabilities, duties, or obligations not imposed upon the community at large. Dibrell v. Morris' Heirs, 89 Tenn. 497, 15 S.W. 87 (1891); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898). The only limitation is that the statutory classification must be natural, and not arbitrary. Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898).

If the classification in a statute is made under Tenn. Const. art. I, § 8, every one who is in, or who may come into, the situation or circumstances which constitute the reasons for and the basis of the classification must be subjected to the disabilities, duties, obligations, and burdens imposed by the statute, or it will be partial and void. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909).

There must be reasonable and substantial differences in the situation and circumstances of the persons placed in different classes which disclose the propriety and necessity of the classification. State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

The constitutional provisions, among others, Tenn. Const. art. I, § 8, Tenn. Const. art. XI, § 8, and U.S. Const. amend. 14, authorizing the courts to control the legislative exercise of the police power, forbid that any mere individual shall be singled out for legislative action, but do not deny the right to the legislature to make proper classifications for purposes of legislation; but such classification must rest upon some natural or reasonable basis, having some substantial relation to the public welfare, and the same provisions must approximately apply in the same way to all the members of the class. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

Tenn. Const. art. I, § 8 forbids any mere individual to be singled out for legislative action but does not deny the right of the legislature to make proper classification for the purpose of legislation. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

The constitution does not forbid classifications but simply keeps governmental decision makers from treating differently persons who are in all relevant aspects alike. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

The statue denying standing to an alleged biological father seeking to establish paternity of a child born to a woman while she was married to another man does not violate the alleged father's equal protection rights in that it does not affect a fundamental right or suspect class and is rationally based on the state's interest in preserving the integrity of the family. Evans v. Steelman, 970 S.W.2d 431, 1998 Tenn. LEXIS 179 (Tenn. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 371 (Tenn. June 22, 1998).

69. —Gender-based.

Sections 36-5-101 — 36-5-103, which, as written prior to the 1979 amendment, provided for alimony and support awards only to wives, created a gender-based classification with no rational relation to legitimate government interests and was violative of the equal protection guarantees of both state and federal constitutions. Mitchell v. Mitchell, 594 S.W.2d 699, 1980 Tenn. LEXIS 421 (Tenn. 1980).

With no evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages, T.C.A. § 29-39-102 does not violate the Tennessee Constitution by discriminating disproportionately against women; without evidence of discriminatory purpose, disparate impact alone does not violate the equal protection provisions of the Tennessee Constitution. McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 2020 Tenn. LEXIS 84 (Tenn. Feb. 26, 2020).

70. —Extent of Legislative Discretion.

It is essential to the validity of every legislative classification, whether it be made under Tenn. Const. art. I, § 8 or under Tenn. Const. art. XI, § 8, that it shall not violate any other provision of the constitution, whether such provision be express or implied. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897)1104 (in the dissenting opinion)State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910).

The general assembly may enact laws containing reasonable and proper classification of the objects of the legislation, but the classification must not be a mere arbitrary selection. It must have some basis which bears a natural and reasonable relation to the object sought to be accomplished, and there must be some good and valid reason why the particular individual or class upon whom the benefit is conferred, or who are subject to the burden imposed, not given to or imposed upon others, should be so preferred or discriminated against. State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912). See Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

The legislature has a wide range of discretion in distinguishing, selecting, and classifying objects of legislation, and the classification made, if practical, is not reviewable unless palpably arbitrary. Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 1921 Tenn. LEXIS 89, 22 A.L.R. 755 (1922); Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

A wide discretion must be conceded to the legislative power of the state in making classifications for the purpose of taxation, in view of Tenn. Const. art. XI, § 8 and U.S. Const. amend. 14. Sterchi Bros. Stores v. Wallace, 168 Tenn. 299, 77 S.W.2d 807, 1934 Tenn. LEXIS 57 (1934).

Legislatures have wide discretion to classify for taxation which classification will be upheld if any reason may be conceived to justify it. Marion County, Tenn., River Transp. Co. v. Stokes, 173 Tenn. 347, 117 S.W.2d 740, 1937 Tenn. LEXIS 32 (1937).

71. —Legislative Classification.

A statute, as an act regulating public utilities, such as street railroads, is void under both the federal and state constitutions, if it makes arbitrary and illegal classifications. Memphis v. Enloe, 141 Tenn. 618, 214 S.W. 71, 1919 Tenn. LEXIS 15 (1919).

Legislative classification may rest on other grounds than differences in population. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

It is unnecessary that the reasons for classification shall appear on the face of the legislation. Knoxtenn Theatres, Inc. v. McCanless, 177 Tenn. 497, 151 S.W.2d 164, 1940 Tenn. LEXIS 48 (1940).

The classifications of statutes must not be arbitrary or capricious nor partial in their operation nor intended to affect particular individuals alone, but if the law bears equally on all who may come into like situations and circumstances it is the law of the land. Knoxtenn Theatres, Inc. v. McCanless, 177 Tenn. 497, 151 S.W.2d 164, 1940 Tenn. LEXIS 48 (1940).

Where reasonableness of classification is “fairly debatable” the court will uphold the classification. Phillips v. State, 202 Tenn. 402, 304 S.W.2d 614, 1957 Tenn. LEXIS 405 (1957).

Classification in legislation has to rest upon some natural or reasonable basis having some substantial relation to the public welfare and the same provisions must approximately apply in the same way to all members of the class. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

If provision of obscenity law describing persons subject to penalties of law as “a person, corporation or any other taxable entity” be construed to exempt those religious, charitable, scientific or educational general welfare corporations that pay no taxes and include those that pay taxes, such provision would be void under the equal protection clause. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

Strip mining regulation contained in former § 1544(a)(6)(B) (now § 59-8-205(a)(1)(F)) and in § 66-5-102 does not deny equal protection, as the legislative classification is reasonably related to legitimate public interests. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

The 1985 amendment of § 8-21-1001, which increased the fees to be collected by county registers for their services in all counties except the five most populous counties of the state, did not violate Tenn. Const. art. I, § 8, Tenn. Const. art. XI, § 8, or the equal protection clause of U.S. Const. amend. 14. Bates v. Alexander, 749 S.W.2d 742, 1988 Tenn. LEXIS 98 (Tenn. 1988).

The classification of municipalities in populous counties in § 6-54-114 was reasonable, not arbitrary, and not violative of the provisions of Tenn. Const. art. I, § 8. Civil Service Merit Bd. v. Burson, 816 S.W.2d 725, 1991 Tenn. LEXIS 386 (Tenn. 1991).

Disparities in educational opportunities available to public school students throughout the state caused principally by a statutory funding scheme violated the constitutional guarantee of equal protection. Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 1993 Tenn. LEXIS 114 (Tenn. 1993).

Provisions of the Workers' Compensation Law (chapter 6 of title 50) on permanent partial disability impairment awards do not violate equal protection. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 1995 Tenn. LEXIS 781 (Tenn. 1995), cert. denied, 517 U.S. 1222, 116 S. Ct. 1852, 134 L. Ed. 2d 952, 1996 U.S. LEXIS 3465 (1996).

The exemption of employees and volunteers of charitable organizations from the definition of a professional solicitor does not create a classification violative of the freedom of speech or equal protection provisions of the federal or state constitutions. State v. Smoky Mt. Secrets, 937 S.W.2d 905, 1996 Tenn. LEXIS 695 (Tenn. 1996).

Where no fundamental right is at stake, Tenn. Const. art. I, § 8 requires only that the classification rationally further a legitimate governmental interest. Vandergriff v. City of Chattanooga, 44 F. Supp. 2d 927, 1998 U.S. Dist. LEXIS 22102 (E.D. Tenn. 1998), aff'd, Rush v. City of Chattanooga, 182 F.3d 918, 1999 U.S. App. LEXIS 24525 (6th Cir. Tenn. 1999).

Legislative history of the Money Laundering Act indicated that the gambling laws, T.C.A. § 39-17-501 et seq., were exempted from the definition of “specified unlawful activity” in T.C.A. §§ 39-14-902 and 39-14-903(b)(1) and because a majority of the members of the Tennessee house of representatives did not feel that the money laundering statute should be applied to gambling acts which might be considered minor offenses, and because, by implication, the act was designed to enable law enforcement to combat money laundering in other offenses considered to be more serious by the legislative body; thus, the legislative history supported the constitutionality of the money laundering statutes, T.C.A. §§ 39-14-901 and 39-14-903, by establishing that the reasonableness of the classification was at least fairly debatable and, therefore, the money laundering statutes did not violate the equal protection divisions of the Tenn. Const. art. XI, § 8 and Tenn. Const. art., I, § 8.State v. Price, 124 S.W.3d 135, 2003 Tenn. Crim. App. LEXIS 403 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1066 (Tenn. 2003).

72. —Natural and Reasonable Basis.

The doctrine of reasonableness in classification in legislation embraces, as a part thereof, the subject of proper classification, and the two subjects cannot be clearly separated in the authorities; but the cases cited hereunder may be regarded as being especially interesting upon this particular phase of the inquiry. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, 1886 U.S. LEXIS 1938 (1886); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, 1897 Tenn. LEXIS 76 (1897); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Gulf, Colo. & S.F. Ry. v. Ellis, 165 U.S. 150, 17 S. Ct. 255, 41 L. Ed. 666, 1897 U.S. LEXIS 1957 (1897); Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 18 S. Ct. 594, 42 L. Ed. 1037, 1898 U.S. LEXIS 1545 (1898); Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780, 1898 U.S. LEXIS 1501 (1898); Missouri, Kan. & Tex. Ry. v. May, 194 U.S. 267, 24 S. Ct. 638, 48 L. Ed. 971, 1904 U.S. LEXIS 853 (1904); Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 1907 Tenn. LEXIS 57, 121 Am. St. Rep. 1002 (1907); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911); Chicago, B. & Q.R.R. v. McGuire, 219 U.S. 549, 31 S. Ct. 259, 55 L. Ed. 328, 1911 U.S. LEXIS 1653 (1911), questioned, Slone v. Kentucky Dep't of Transp., 379 F. Supp. 652, 1974 U.S. Dist. LEXIS 7493 (E.D. Ky. 1974); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

If a statute attempts to create distinctions and classifications under Tenn. Const. art. I, § 8 of the constitution for the purpose of subjecting a class to the burden of some special disability, duty, or obligation, there must be some good and valid reason why that particular class should alone be subject to the burden. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); Weaver v. Davidson County, 104 Tenn. 315, 59 S.W. 1105, 1899 Tenn. LEXIS 38 (1899); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Southern R. Co. v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A. (n.s.) 828, 1912 Tenn. LEXIS 54 (1912); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

Whether a statute be public or private, general or special in form, if it attempts to create distinctions and classifications between the citizens of this state, the basis of such classification must be natural, and not arbitrary or capricious. The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S.W. 5, 1895 Tenn. LEXIS 81 (1895); Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 1896 Tenn. LEXIS 24, 33 L.R.A. 589 (1896); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, 1897 Tenn. LEXIS 76 (1897); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); Breyer v. State, 102 Tenn. 103, 50 S.W. 769, 1898 Tenn. LEXIS 11 (1898); Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 76 Am. St. Rep. 682, 1899 Tenn. LEXIS 124, 76 Am. St. Rep. 682, 56 L.R.A. 316 (1899), aff'd, 183 U.S. 13, 22 S. Ct. 1, 46 L. Ed. 55, 1901 U.S. LEXIS 1249 (1901); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1909 Tenn. LEXIS 33 (1909); State v. Nashville, C. & St. L. Ry., 124 Tenn. 1, 135 S.W. 773, 1910 Tenn. LEXIS 37 (1910); Hall v. State, 124 Tenn. 235, 137 S.W. 500, 1910 Tenn. LEXIS 54 (1910); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911); Fleming v. City of Memphis, 126 Tenn. 331, 148 S.W. 1057, 1912 Tenn. LEXIS 58, 42 L.R.A. (n.s.) 493 (1912).

The constitutional provisions against class legislation apply only where the statutory classification bears no reasonable or natural relation to the subject sought to be accomplished. Massachusetts Mut. Life Ins. Co. v. Vogue, Inc., 54 Tenn. App. 624, 393 S.W.2d 164, 1965 Tenn. App. LEXIS 282 (Tenn. Ct. App. 1965).

Class legislation that is natural and reasonable is constitutional and valid but class legislation that is arbitrary and capricious is unconstitutional and invalid. City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602, 1969 Tenn. LEXIS 389 (1969).

If allegedly discriminatory classifications by the state legislature do not interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of suspect classes, there need be only some rational basis for the legislation. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

Legislation imposing bona fide residential requirements for governmental personnel will not be held to be unconstitutionally discriminatory if there is a rational basis for the legislation. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

If the exclusion of “natural persons acting as agents of a non-taxable entity” were construed to exempt agents of all general welfare corporations who pay no taxes and include those who pay any taxes the classification would violate due process having no rational basis in the context of the criminal offense involved. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

73. — —Population.

A special legislative act affecting a certain specified county or city, in its political or governmental capacity or agency, is not for that reason unconstitutional; but such legislation affecting the citizens composing of certain specified county, and not the other citizens of the state, is for that reason unconstitutional. Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Red River Furnace Co. v. Tennessee C. R. Co., 113 Tenn. 697, 87 S.W. 1016, 1904 Tenn. LEXIS 60 (1903)and citationsMaxey v. Powers, 117 Tenn. 381, 101 S.W. 181, 1906 Tenn. LEXIS 53 (1907); Prescott v. Duncan, 126 Tenn. 106, 148 S.W. 229, 1912 Tenn. LEXIS 50 (1912).

Constitutional provision did not forbid reasonable classification of counties according to population standard for the application of laws that may affect all alike that fall naturally into the class. Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71, 1925 Tenn. LEXIS 70 (1925), superseded by statute as stated in, Ledbetter v. Duncan, 676 S.W.2d 91, 1984 Tenn. App. LEXIS 2776 (Tenn. Ct. App. 1984).

Acts applying to classification made to depend upon the population standard are authorized by authority and sustained on principle. Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132, 1929 Tenn. LEXIS 123 (1929), appeal dismissed, 283 U.S. 791, 51 S. Ct. 363, 75 L. Ed. 1417, 1931 U.S. LEXIS 194 (1931).

The legislature, in enacting statutes, may make a classification based on population, if the classification is reasonable, natural, and not arbitrary or capricious. State ex rel. Hamby v. Cummings, 166 Tenn. 460, 63 S.W.2d 515, 1933 Tenn. LEXIS 100 (1933).

An act contrary to the general law of the state will not be upheld because it relates to a particular county on basis of population unless such act relates to a matter in respect to which a difference in population would furnish a rational basis for diversity of laws. State ex rel. Bales v. Hamilton County, 170 Tenn. 371, 95 S.W.2d 618, 1935 Tenn. LEXIS 144 (1936); Harwell v. Leech, 672 S.W.2d 761, 1984 Tenn. LEXIS 813 (Tenn. 1984).

In order to render a statute affecting only one county invalid on the ground that it operates to suspend the general law of the state, in violation of Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, the statute must primarily affect the citizens of the county in their individual relations. Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33, 1937 Tenn. LEXIS 4 (1937).

Special legislation affecting different counties or cities in their governmental or political capacities does not offend Tenn. Const. art. I, § 8 or Tenn. Const. art. XI, § 8, even though contrary to a general statute, provided there is a reasonable basis for the classification. Jones v. Haynes, 221 Tenn. 50, 424 S.W.2d 197, 1968 Tenn. LEXIS 446 (1968).

The work release statute is unconstitutional because the provision limiting to three counties the applicability of the statute was an unconstitutional classification under the equal protection guarantees of both the federal and state constitutions and, because it was not clear that the legislature would have enacted the statute with the unconstitutional provision omitted, the doctrine of elision did not apply. State v. Tester, 879 S.W.2d 823, 1994 Tenn. LEXIS 172 (Tenn. 1994).

The five population exclusion brackets of former § 67-7-221, the rebate and refund statute of the mineral severance tax law, violated the due process provisions of the state constitution, but, because the brackets could be elided, the remainder of the law was constitutional. Nolichuckey Sand Co. v. Huddleston, 896 S.W.2d 782, 1994 Tenn. App. LEXIS 676 (Tenn. Ct. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 157 (Tenn. Apr. 3, 1995).

74. — —Police Power.

Tenn. Const. art. I, § 8, embracing “the law of the land” clause, when read in connection with the first clause of Tenn. Const. art. XI, § 8, is substantially the same as that contained in U.S. Const. amend. 14, § 1, cl. 2, which does not take from the state the power of classification in the enactment of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and, therefore, purely arbitrary; for a classification having some reasonable basis does not offend against that provision merely because it is not made with mathematical nicety, or because in practice it results in some inequality. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); Nance v. O. K. Houck Piano Co., 128 Tenn. 1, 155 S.W. 1172, 1914D Am. Ann. Cas. 834, 1913 Tenn. LEXIS 18 (1913).

When the classification in a police law is called in question, or asserted to be in conflict with certain constitutional provisions, Tenn. Const. art. I, § 8, Tenn. Const. art. XI, § 8 and U.S. Const. amend. 14, § 1, any state of facts that can be reasonably conceived that would sustain it will be assumed to have existed when the law was enacted; and one assailing the classification in such law must bear the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

With the legislature rests the determination of the reasonableness of regulations under the police power, and a court will not examine the question de novo and overrule such judgment by substituting its own, unless it clearly appears that those regulations are so “beyond all reasonable relation to the subject to which they are applied as to amount to mere arbitrary usurpation of power,” or is unmistakably and palpably in excess of the legislative power, or is arbitrary “beyond possible justice,” bringing the case within “the rare class” in which such legislation is declared void. State v. McKay, 137 Tenn. 280, 193 S.W. 99, 1916 Tenn. LEXIS 77 (1916).

If any possible reason can be conceived to justify the classification made in an act involving the police power of the state, it will be upheld and deemed reasonable. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

A classification in a statute which is not arbitrary but designed as an exercise of the police power is constitutional. Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132, 1929 Tenn. LEXIS 123 (1929), appeal dismissed, 283 U.S. 791, 51 S. Ct. 363, 75 L. Ed. 1417, 1931 U.S. LEXIS 194 (1931).

If a classification for police power or for taxation is arbitrary under Tenn. Const. art. I, § 8, it also violates U.S. Const. amend. 14. Marion County, Tenn., River Transp. Co. v. Stokes, 173 Tenn. 347, 117 S.W.2d 740, 1937 Tenn. LEXIS 32 (1937).

While a city had the general right under its police power to enact ordinances to prevent fires and explosions, it could not under such power pass an ordinance having the effect of excluding certain persons from engaging in the filling station business while allowing others to do so. Consumers Gasoline Stations v. City of Pulaski, 200 Tenn. 480, 292 S.W.2d 735, 1956 Tenn. LEXIS 432 (1956).

75. —Degree of Certainty.

Mathematical or logical exactness, in every aspect, in a division for classification, is not always possible, and it is not required in order to have validity. Memphis v. State, 133 Tenn. 83, 179 S.W. 631, 1915 Tenn. LEXIS 76, 1916B L.R.A. (n.s.) 1151, 1917C Am. Ann. Cas. 1056 (1915); Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

If the classification of an act enacted under the police power has some reasonable basis, it is not unconstitutional merely because it is not made with mathematical nicety or because in practice it results in some inequality. Cosmopolitan Life Ins. Co. v. Northington, 201 Tenn. 541, 300 S.W.2d 911, 1957 Tenn. LEXIS 332 (1957).

A classification is not unreasonable merely because in practice it results in some inequality where the classification has a reasonable basis. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

Provision of obscenity law describing persons subject to penalties of act as “a person, corporation or any other taxable entity” but excluding “natural persons acting as agents of a nontaxable entity” was void under due process clause as too vague to determine who is included since many entities that are basically nontaxable have taxable operations. Leech v. American Booksellers Asso., 582 S.W.2d 738, 1979 Tenn. LEXIS 446 (Tenn. 1979).

76. —Burden of Proof.

One assailing classification in a police act must carry the burden of showing that it rests upon no reasonable basis but that it is essentially arbitrary. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

The burden of showing that the classification does not rest upon a reasonable basis is upon the complainant and if any reasonable basis can be conceived to justify the classification or if the reasonableness is fairly debatable the legislation will be upheld. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

77. —Review.

The legislature has a wide range of discretion in distinguishing, selecting, and classifying objects of legislation, because of the function of legislation and the purposes to which it is addressed. Classification for such purposes is not invalid because not depending on scientific or marked differences in things or persons, or in their relations. It suffices if it is practical, and is not reviewable unless palpably arbitrary. State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 18 S. Ct. 594, 42 L. Ed. 1037, 1898 U.S. LEXIS 1545 (1898); Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S. Ct. 281, 43 L. Ed. 552, 1899 U.S. LEXIS 2386 (1899); State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900); State v. Cook, 107 Tenn. 499, 64 S.W. 720, 1901 Tenn. LEXIS 97, 62 L.R.A. 174 (1901), dismissed, Cook v. Tennessee, 187 U.S. 639, 23 S. Ct. 847, 47 L. Ed. 344, 1903 U.S. LEXIS 1404 (1903); State ex rel. Condon v. Maloney, 108 Tenn. 82, 65 S.W. 871, 1901 Tenn. LEXIS 12 (1901), dismissed, Tennessee v. Condon, 189 U.S. 64, 23 S. Ct. 579, 47 L. Ed. 709, 1903 U.S. LEXIS 1325 (1903); Edmondson v. Board of Educ., 108 Tenn. 557, 69 S.W. 274, 1902 Tenn. LEXIS 1, 58 L.R.A. 170 (1902).

Under the constitutional provisions against class legislation, it is not sufficient to invalidate a statute, merely to show points of similarity in the thing classified, and the thing excluded from the classification, for if the classification is reasonable and practicable, it is sufficient. Memphis v. State, 133 Tenn. 83, 179 S.W. 631, 1915 Tenn. LEXIS 76, 1916B L.R.A. (n.s.) 1151, 1917C Am. Ann. Cas. 1056 (1915).

Under U.S. Const. amend. 14, Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8, inhibiting arbitrary class legislation, the same rules are applied as to the validity of classification made in legislative enactments, so that the basis for classification must be natural, and not arbitrary or capricious, and must rest upon some substantial difference between the situation of the class created and others to whom it does not apply; but the classification is not invalid, because not depending on scientific or marked differences in things and persons, or in their relations. The classification suffices if it is practical and it is not reviewable unless palpably arbitrary. Memphis v. State, 133 Tenn. 83, 179 S.W. 631, 1915 Tenn. LEXIS 76, 1916B L.R.A. (n.s.) 1151, 1917C Am. Ann. Cas. 1056 (1915); Sullivan v. State, 136 Tenn. 194, 188 S.W. 1153, 1916 Tenn. LEXIS 116 (1916); State v. McKay, 137 Tenn. 280, 193 S.W. 99, 1916 Tenn. LEXIS 77 (1916); Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645, 1918 Tenn. LEXIS 101 (1918) (a very wide range of discretion in the matter of classification in police statutes and revenue statutes; and if any possible reason can be conceived to justify the classification, it will be upheld).

The sole test of the constitutionality of any particular classification is that it must be made upon a reasonable basis with such reasonableness depending upon the facts of the particular case. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345, 1968 Tenn. LEXIS 493 (1968).

Classifications made by the legislature are reviewable by the court only where there is a showing that the classification is palpably arbitrary and if the reasonableness of the classification is fairly debatable it must be upheld. City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602, 1969 Tenn. LEXIS 389 (1969).

78. —Examples.

The classifications of citizens which have been sustained as not arbitrary were made for one or the other of the following purposes: (1) For the purpose of taxation. State v. Schlier, 50 Tenn. 281, 1871 Tenn. LEXIS 99 (1871); Kelly & McCaden v. Dwyer, 75 Tenn. 180, 1881 Tenn. LEXIS 93 (1881); Fulgum v. Mayor of Nashville, 76 Tenn. 635, 1881 Tenn. LEXIS 54 (1881); Vosse v. City of Memphis, 77 Tenn. 294, 1882 Tenn. LEXIS 52 (1882); Eastman v. Jackson, 78 Tenn. 162, 1882 Tenn. LEXIS 157 (1882); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Nashville, M. & S. Turnpike Co., 92 Tenn. 369, 22 S.W. 75, 1892 Tenn. LEXIS 83 (1893); State v. Alston, 94 Tenn. 674, 30 S.W. 750, 1895 Tenn. LEXIS 52, 28 L.R.A. 178 (1895); Railroad v. Harris, 99 Tenn. 684, 43 S.W. 115, 1897 Tenn. LEXIS 81, 53 L.R.A. 921 (1897); English's Estate v. Crenshaw, 120 Tenn. 531, 110 S.W. 210, 1908 Tenn. LEXIS 41, 127 Am. St. Rep. 1025, 17 L.R.A. (n.s.) 753 (1908); Knox v. Emerson, 123 Tenn. 409, 131 S.W. 972, 1910 Tenn. LEXIS 14 (1910); (2) For police purposes. State v. Rauscher, 69 Tenn. 96, 1878 Tenn. LEXIS 51 (1878); Hatcher v. State, 80 Tenn. 368, 1883 Tenn. LEXIS 181 (1883); Theilan v. Porter, 82 Tenn. 622, 1885 Tenn. LEXIS 3, 52 Am. Rep. 173 (1885); The Stratton v. The Morris, 89 Tenn. 497, 15 S.W. 87, 1890 Tenn. LEXIS 76, 12 L.R.A. 70 (1890); Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618, 1892 Tenn. LEXIS 20 (1892); Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S.W. 970, 1899 Tenn. LEXIS 140 (1899), aff'd, 183 U.S. 23, 22 S. Ct. 5, 46 L. Ed. 61, 1901 U.S. LEXIS 1250 (1901); Standard Oil Co. v. State, 117 Tenn. 618, 100 S.W. 705, 1906 Tenn. LEXIS 71, 10 L.R.A. (n.s.) 1015 (1907); Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915); and (3) For the necessary protection of the particular class. Gilbert Parks & Co. v. Thomas Parks & Co., 59 Tenn. 633, 1874 Tenn. LEXIS 20 (1874).

On an appeal from a finding that petitioner, an inmate, was competent to withdraw his petition for postconviction relief, his equal protection claim failed as a matter of law because his putative class was too small to use for any sort of meaningful equal protection analysis. He defined one class for purposes of his argument as Tennessee capital petitioners who sought to dismiss pending postconviction petitions, a class apparently comprised of only two members; the other class included only himself and those “classes” were comprised of so few members as to have defied even meaningful statistical analysis, much less equal protection analysis. Hugueley v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. June 8, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1207 (Tenn. Dec. 13, 2011), rehearing denied, — S.W.3d —, 2012 Tenn. LEXIS 47 (Tenn. Jan. 11, 2012), cert. denied, Hugueley v. Tennessee, 184 L. Ed. 2d 504, 133 S. Ct. 763, 568 U.S. 1051, 2012 U.S. LEXIS 9286 (U.S. 2012).

79. Cities and Counties.

A municipal corporation, in the exercise of its charter and police powers, may by ordinance limit, restrict, or confine the sale of intoxicating liquors, the running of stock at large, marketing produce and meats, operation of slaughterhouses, and similar things, to specified portions or limits of the city, and prohibit the same in other specified portions or limits; for such ordinances are not unconstitutional as vicious class legislation, nor as taking of property without due process of law, nor as creating monopolies. Mayor, etc., of Chattanooga v. Norman, 92 Tenn. 73, 20 S.W. 417, 1892 Tenn. LEXIS 52 (1892); Gorrell v. Mayor of Newport, 1 Tenn. Ch. App. 120 (1901).

A special statute affecting a particular and specified municipal corporation in its political aspects or sovereignty is not, for that reason, unconstitutional; but such a statute affecting such municipal corporation in its capacity as an individual is invalid and unconstitutional as class legislation. Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904).

In cases involving municipal ordinances, the doctrine of reasonableness in classification has a wider scope than in cases of classification in state legislation under the police power, because such ordinances must be tested, not only by the constitution, but also by the statutes of the state, and by the common law. Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 1911 Tenn. LEXIS 45 (1912), dismissed, Motlow v. Tennessee, 36 S. Ct. 161, 239 U.S. 653, 60 L. Ed. 487, 1915 U.S. LEXIS 1559 (1915).

Statute authorizing municipalities with population of over 160,000 to regulate the use or uses of land, which includes the use to which buildings located on the land may be put, is valid exercise of police power, and is not arbitrary classification though, at certain time, it applied to one city only, nor does it unlawfully destroy or deprive of property. Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608, 1926 Tenn. LEXIS 22 (1927).

Statutory provisions prohibiting the prosecution of a business by private individuals, not harmful in and of itself, and not made unlawful by the general laws of the state, in counties having certain population, violates the constitution. Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565, 1927 Tenn. LEXIS 114 (1927).

Charter statute creating civil service and pension board for city, requiring city's employees to work subject to orders of such board, and making board's orders final, in matters of termination of employment, is not unconstitutional. City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164, 1927 Tenn. LEXIS 138 (1927).

The justification of stock laws rests on local conditions and necessities, and courts will be very slow to set aside legislative classification of counties and to declare that no reason can be conceived for omitting or embracing particular counties from the operation of such an act. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661, 1927 Tenn. LEXIS 151 (1928).

Where a statute, public or private, general or special, applies to a county (or municipality) not in its governmental capacity as an arm of the state, but as affecting the individual citizens of the county in their private relations, the constitutional provisions prohibiting partial or special legislation apply; but the contrary is true where the statute applies to a county in its governmental capacity. Nashville, C. & St. L. Ry. v. Marshall County, 161 Tenn. 236, 30 S.W.2d 268, 1929 Tenn. LEXIS 54 (1929).

Tenn. Const. art. I, § 8 is not violated by a front foot abutting property act, applying to all cities of over certain population and affecting all citizens alike, and not providing arbitrary classification. Reasonover v. City of Memphis, 162 Tenn. 633, 39 S.W.2d 1029, 1931 Tenn. LEXIS 78 (Tenn. Apr. 1931).

Special laws may be passed affecting counties, municipalities, school districts, and the like, as arms or agencies of the state. Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33, 1937 Tenn. LEXIS 4 (1937).

Private act creating commission form of government did not violate constitutional prohibition against a private act suspending the general law, as only the instrumentality administering the county was changed, which did not affect the status of the individual citizens of the county. Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33, 1937 Tenn. LEXIS 4 (1937); Crewse v. Beeler, 186 Tenn. 475, 212 S.W.2d 39, 1948 Tenn. LEXIS 568 (1948).

Ordinance forbidding erection of fences across front yards of residences was based solely on aesthetic considerations and was invalid as being an improper exercise of police power. Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543, 1958 Tenn. LEXIS 272 (1958).

The issuance of a permanent injunction against the owner of premises which had been used for purposes of prostitution prohibiting such use of his property, in absence of any proof that he had knowledge of such use, was not violative of his constitutional rights, since it did not deprive him of property or punish him in any way. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

A city charter provision which required residence within the surrounding county for city employees was constitutional since it insured proximity to the employees' worksite in case of emergency, since the city reaped benefits for local expenditure of county residents' salaries, and since pride in one's place of employment by the county residents would further the city's progress; in other words, the provision had a rational basis. City of Memphis v. International Bhd. of Elec. Workers Union, Local 1288, 545 S.W.2d 98, 1976 Tenn. LEXIS 617 (Tenn. 1976).

Defendant storeowner's right to equal protection of the law was not violated by enforcement against him of municipal law prohibiting the sale of beer even though the prohibition was not enforced against certain other businesses where the other businesses or their predecessors in interest had operated beer-selling establishments under county permits prior to the city's annexation of the territory containing their businesses whereas the defendant's establishment did not antedate annexation. Goldston v. City of Harriman, 565 S.W.2d 858, 1978 Tenn. LEXIS 549 (Tenn. 1978).

City ordinance prohibiting the sale of beer on Sunday did not violate the constitutional prohibition against religious preferences or due process. Martin v. Beer Bd., 908 S.W.2d 941, 1995 Tenn. App. LEXIS 271 (Tenn. Ct. App. 1995).

Pursuant to Knoxville, Tenn., City Code 17-210, vehicle owner was the party responsible for the violation; therefore, when a red light violation occurred, the “guilty party” was the vehicle owner who may or may not be driving the vehicle at the time of the violation, and the mailing of a citation to the vehicle's registered owner did not violate equal protection. City of Knoxville v. Brown, 284 S.W.3d 330, 2008 Tenn. App. LEXIS 436 (Tenn. Ct. App. July 30, 2008), rehearing denied, — S.W.3d —, 2008 Tenn. App. LEXIS 813 (Tenn. Ct. App. Aug. 22, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 193 (Tenn. Feb. 17, 2009).

City's limitations on digital billboards did not violate an advertiser's rights to due process and equal protection because (1) the regulations were an appropriate exercise of the city's power to protect the health, safety, and welfare of citizens, (2) exceptions to the regulations had reasonable bases, and (3) the parties granted such exceptions were not similarly situated to the advertiser. Lamar Tenn., LLC v. City of Knoxville, — S.W.3d —, 2016 Tenn. App. LEXIS 142 (Tenn. Ct. App. Feb. 25, 2016), appeal denied, Lamar Tenn. LLC v. City of Knoxville, — S.W.3d —, 2016 Tenn. LEXIS 465 (Tenn. June 23, 2016).

80. Schools.

Policy requiring dismissal of person enrolled in a nursing program who receives two “D” grades or below in any school of nursing in Tennessee, and making that person ineligible for re-admission into any of the public schools of nursing in the state, did not violate substantive due process or equal protection. Lilly v. Smith, 790 S.W.2d 539, 1990 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1990).

Under Tenn. Const. art. I, § 8, where a student is suspended for 10 days or less, the student must be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

Claim by a student who was suspended for 10 days that he was deprived of his due process rights failed, as there was no evidence that school officials had decided that discipline at the school was tainted by racial bias or that they tried to correct the problem by singling out Caucasian students for unwarranted discipline. Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

Where a student was suspended for 10 days, the fact that a disciplinary coordinator had performed both prosecutorial and decision-making functions, without more, did not deprive the student of his due process rights, as it was impossible and undesirable for administrators involved in incidents of misbehavior always to be precluded from acting as decision-makers. Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 2012 Tenn. LEXIS 646 (Tenn. Sept. 27, 2012).

81. Taxation.

Statutes authorizing the ascertainment of the amount of taxes due from each citizen, and the issuance of a distress warrant to enforce the same against such as fail or refuse to pay the taxes assessed, are constitutional and valid as “the law of the land,” and as authorizing “due process of law.” Den ex dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 15 L. Ed. 372, 1855 U.S. LEXIS 698 (1855); Myers v. Park, 55 Tenn. 550, 1875 Tenn. LEXIS 2 (1875); McMillen v. Anderson, 95 U.S. 37, 24 L. Ed. 335, 1877 U.S. LEXIS 2130 (1877); Davidson v. New Orleans, 96 U.S. 97, 24 L. Ed. 616, 1877 U.S. LEXIS 1632 (1877); Springer v. United States, 102 U.S. 586, 26 L. Ed. 253, 1880 U.S. LEXIS 2066 (Tenn. 1881); Kelly v. Pittsburgh, 104 U.S. 78, 26 L. Ed. 658, 1881 U.S. LEXIS 1970 (Tenn. Nov. 7, 1881); Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S. Ct. 663, 28 L. Ed. 569, 1884 U.S. LEXIS 1826 (1884); Cincinnati, N.O. & Tex. Pac. R.R. v. Kentucky, 115 U.S. 321, 6 S. Ct. 57, 29 L. Ed. 414, 1885 U.S. LEXIS 1843 (1885); East Tenn. Brewing Co. v. Currier, 126 Tenn. 535, 150 S.W. 541, 1912 Tenn. LEXIS 76 (1912).

The legislature has the power to impose a penalty for the nonpayment of taxes, and to authorize the penalty to be enforced with the taxes, and such imposition is not in violation of Tenn. Const. art. I, § 8, or Tenn. Const. art. II, § 28. Myers v. Park, 55 Tenn. 550, 1875 Tenn. LEXIS 2 (1875); Nance v. Hopkins, 78 Tenn. 508, 1882 Tenn. LEXIS 215 (1882).

Statute authorizing a county to make special levies for enumerated items of county expense is not unconstitutional as an unlimited and unrestrained delegation of the power of taxation, merely because it failed to fix a maximum rate of taxation for the authorized special levies. Nashville, C. & St. L. Ry. v. Benton County, 161 Tenn. 588, 33 S.W.2d 68, 1930 Tenn. LEXIS 44 (1930), appeal dismissed, Nashville C. & St. L. R. Co. v. Benton County, 283 U.S. 786, 51 S. Ct. 349, 75 L. Ed. 1414, 1931 U.S. LEXIS 185 (1931), dismissed, Randall v. United States, 51 S. Ct. 349, 283 U.S. 826, 75 L. Ed. 1440, 1931 U.S. LEXIS 285 (1931).

The provision of the statute, allowing only ten days in which to appeal from the county trustee's back tax assessment to the board of equalizers, is sufficiently long to constitute due process of law. Tennessee Fertilizer Co. v. McFall, 128 Tenn. 645, 163 S.W. 806, 1913 Tenn. LEXIS 78 (1913).

Prosecution for failure to collect sales tax on sales of gold and silver coins and bullion was not a violation of due process since the statutes imposing the tax are not so vague and ambiguous as to lead one to believe that such sales were not subject to the tax. State v. Sanders, 923 S.W.2d 540, 1996 Tenn. LEXIS 358 (Tenn. May 28, 1996).

Exclusion of several counties in T.C.A. § 67-4-1425(c) and (d) is constitutional under equal protection, because the growth of the counties provided a rational basis for excluding them from the prohibition against double taxation by an occupancy tax. Admiralty Suites & Inns, LLC v. Shelby County, 138 S.W.3d 233, 2003 Tenn. App. LEXIS 835 (Tenn. Ct. App. Nov. 24, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 406 (Tenn. May 10, 2004).

Franchise tax credit under T.C.A. § 56-4-217(b) did not apply to the taxpayer as a workers' compensation self-insurer, because T.C.A. § 56-4-217(b) was added at the same time and in conjunction with T.C.A. § 56-4-217(c), which restricted its application to “insurance companies” as defined in T.C.A. § 56-1-102(2); therefore T.C.A. § 56-4-217(b) was also restricted to insurance companies. The classification of insurance companies versus self-insurers did not violate the equal protection guarantees of U.S. Const. amend. 14, Tenn. Const. art. I, § 8, or Tenn. Const. art. XI, § 8, because the classification rested upon a reasonable basis where it was held that alleviating the effects of retaliatory taxation by other states to the disadvantage of Tennessee's domestic insurance companies standing alone was a sufficient basis to withstand equal protection scrutiny. Saturn Corp. v. Johnson, 197 S.W.3d 273, 2006 Tenn. App. LEXIS 252 (Tenn. Ct. App. 2006).

Flexibility of the bottler's tax, T.C.A. § 67-4-402, with regard to out-of-state and in-state manufacturers has some relevance to its objective of avoiding double taxation. Accordingly, to the extent the bottler's tax imposes differential treatment of out-of-state and in-state manufacturers, it does not violate the Equal Protection Clauses of U.S Const. amend. XIV or Tenn. Const. arts. I, § 8 and XI, § 8. Dr. Pepper Pepsi-Cola Bottling Co. v. Farr, 393 S.W.3d 201, 2011 Tenn. App. LEXIS 615 (Tenn. Ct. App. Nov. 16, 2011), appeal denied, Dr. Pepper Pepsi-Cola Bottling Co., of Dyersburg LLC v. Farr, — S.W.3d —, 2012 Tenn. LEXIS 231 (Tenn. Apr. 12, 2012).

82. —Allocation and Assessment.

Exemptions from taxation offered in legislative charters of incorporation and not previously accepted, were withdrawn by the adoption of the Constitution of 1870, with the provisions in Tenn. Const. art. I, § 8 and Tenn. Const. art. II, § 28. State v. Planters' Fire & Marine Ins. Co., 95 Tenn. 203, 31 S.W. 992, 1895 Tenn. LEXIS 78 (1895), aff'd, Planters' Ins. Co. v. Tennessee, 161 U.S. 193, 16 S. Ct. 466, 40 L. Ed. 667, 1896 U.S. LEXIS 2152 (1896), dismissed, Mechanics Sav. Bank v. Tennessee, 16 S. Ct. 1203, 163 U.S. 695, 41 L. Ed. 314, 1896 U.S. LEXIS 3495 (1896), dismissed, Mechanics Sav. Bank v. Tennessee, 16 S. Ct. 1203, 163 U.S. 695, 41 L. Ed. 314, 1896 U.S. LEXIS 3496 (1896), aff'd, Memphis City Bank v. Tennessee, 161 U.S. 186, 16 S. Ct. 468, 40 L. Ed. 664, 1896 U.S. LEXIS 2151 (1896); State v. Mercantile Bank, 95 Tenn. 212, 31 S.W. 989, 1895 Tenn. LEXIS 79 (1895), aff'd, Mercantile Bank v. Tennessee ex rel. Memphis, 161 U.S. 161, 16 S. Ct. 461, 40 L. Ed. 656, 1896 U.S. LEXIS 2149 (1896), aff'd, Home Ins. & Trust Co. v. Tennessee, 161 U.S. 198, 16 S. Ct. 476, 40 L. Ed. 669, 1896 U.S. LEXIS 2153 (1896), aff'd, Planters' Ins. Co. v. Tennessee & Shelby County, 16 S. Ct. 468, 161 U.S. 198 (1896), dismissed, German Bank v. Tennessee, 16 S. Ct. 1201, 163 U.S. 688, 41 L. Ed. 313, 1896 U.S. LEXIS 3493 (1896), dismissed, German Bank v. Tennessee, 16 S. Ct. 1201, 163 U.S. 688, 41 L. Ed. 313, 1896 U.S. LEXIS 3494 (1896), aff'd, HOME INS. & TRUST CO. v. TENNESSEE & SHELBY CTY., 16 S. Ct. 476, 161 U.S. 200, 40 L. Ed. 670, 1896 U.S. LEXIS 2154 (1896). See Nelson v. Haywood County, 87 Tenn. 781, 11 S.W. 885, 1889 Tenn. LEXIS 27, 4 L.R.A. 648 (1889).

A statute imposing a privilege tax upon shoe shining parlors, but providing that the tax shall not apply to barber shops, is not unconstitutional as violative of this constitutional provision. Barlin v. Knox County, 136 Tenn. 238, 188 S.W. 795, 1916 Tenn. LEXIS 122, 2 A.L.R. 112 (1916).

Act imposing annual excise tax on foreign and domestic corporations and joint stock associations equal to a certain percent of the net earnings from business done wholly within the state excluding earnings from interstate commerce is not unconstitutional as taxing corporations to exclusion of partnerships and individuals, the classification being reasonable and not arbitrary. Bank of Commerce & Trust Co. v. Senter, 149 Tenn. 569, 260 S.W. 144, 1923 Tenn. LEXIS 115 (1923).

Statute requiring payment of annual fee by corporations, fees being graduated according to amount of capital stock, held not arbitrary class legislation. Camden Fire Ins. Ass'n v. Haston, 153 Tenn. 675, 284 S.W. 905, 1925 Tenn. LEXIS 53 (1925).

Constitutional provisions not violated by act creating privilege tax on gasoline storage, in that the act excludes petroleum products other than gasoline, the tax operating uniformly throughout the state. Foster & Creighton Co. v. Graham, 154 Tenn. 412, 285 S.W. 570, 1925 Tenn. LEXIS 118, 47 A.L.R. 971 (1925).

A reasonable classification of the income from stocks and bonds to be taxed is permissible. Shields v. Williams, 159 Tenn. 349, 19 S.W.2d 261, 1928 Tenn. LEXIS 92 (1929).

An attempt by special act to exempt any particular county from its share of taxes for state highway purposes is unconstitutional as arbitrary class legislation for which no possible justification can be conceived. Berry v. Hayes, 160 Tenn. 577, 28 S.W.2d 50, 1929 Tenn. LEXIS 135 (1929).

This clause is not violated by a law exempting from a second inheritance tax property on which one has been paid within five years. Bank of Commerce & Trust Co. v. McLemore, 162 Tenn. 137, 35 S.W.2d 31, 1930 Tenn. LEXIS 71 (1930).

If any reason can be seen to justify a classification in revenue statutes they will not be held unconstitutional because discriminatory. Sterchi Bros. Stores v. Wallace, 168 Tenn. 299, 77 S.W.2d 807, 1934 Tenn. LEXIS 57 (1934).

Where apportionment of distributable property of railroad for tax purposes was made on basis of the average value per mile of such property multiplied by the number of miles of main track in Tennessee and there was no showing of special circumstances indicating the portions of the railroad outside Tennessee were largely of greater value than the portion within the state, such apportionment did not violate Tenn. Const. art. I, § 8. Nashville, C. & S. L. Ry. v. Browning, 176 Tenn. 245, 140 S.W.2d 781, 1939 Tenn. LEXIS 121, aff'd, Nashville, C. & S. L. Railway v. Browning, 310 U.S. 362, 60 S. Ct. 968, 84 L. Ed. 1254, 1940 U.S. LEXIS 593 (May 20, 1940).

The inheritance tax does not violate Tenn. Const. art. I, § 8. Bergeda v. State, 179 Tenn. 460, 167 S.W.2d 338, 1942 Tenn. LEXIS 43, 144 A.L.R. 696 (1942).

If method of allocation used by commissioner in fixing excise tax on manufacturing corporation located in Tennessee is fairly calculated to assign to Tennessee that portion of the net income of the manufacturer reasonably attributable to business done in the state, the due process clause is not violated. General Shoe Corp. v. Stokes, 181 Tenn. 286, 181 S.W.2d 146, 1944 Tenn. LEXIS 372 (1944).

The legislature, as long as what it does is not arbitrary and capricious, but is natural and reasonable, may classify for taxation things in any reasonable manner which it sees fit, and such classification will not be interfered with by the courts if such a tax can be considered reasonable as between various classes. Lawrence v. MacFarland, 209 Tenn. 376, 354 S.W.2d 78, 1962 Tenn. LEXIS 368 (1962).

County privilege tax on residential development, including multi-unit parcels, did not violate the equal protection provisions of the state or federal constitutions. Throneberry Properties v. Allen, 987 S.W.2d 37, 1998 Tenn. App. LEXIS 683 (Tenn. Ct. App. 1998).

83. —Method of Collection.

Laws providing summary remedies for the collection of delinquent taxes are not unconstitutional, because they dispense with some of the formalities of ordinary judicial procedure, or cut off technical defenses, or authorize the seizure of the property before a hearing, provided the taxpayer is given an opportunity at some stage to contest the validity of the tax. East Tenn. Brewing Co. v. Currier, 126 Tenn. 535, 150 S.W. 541, 1912 Tenn. LEXIS 76 (1912); Tennessee Fertilizer Co. v. McFall, 128 Tenn. 645, 163 S.W. 806, 1913 Tenn. LEXIS 78 (1913).

Summary proceedings for the assessment and collection of taxes are not violative of “the law of the land.” M'Carroll's Lessee v. Weeks, 2 Tenn. 215, 1814 Tenn. LEXIS 1 (1814); M'Carrol's Lessee v. Weeks, 6 Tenn. 246, 1814 Tenn. LEXIS 47 (1814).

A special act authorizing a particular county to levy certain taxes is not invalid as being class legislation. The only requirement as to uniformity is that the tax shall be equal and uniform throughout the county. Nashville, C. & S. L. Ry. v. Carroll County, 161 Tenn. 581, 33 S.W.2d 69, 1930 Tenn. LEXIS 43 (1930), appeal dismissed, Nashville C. & St. L. R. Co. v. Carroll County, 283 U.S. 785, 51 S. Ct. 349, 75 L. Ed. 1414, 1931 U.S. LEXIS 184 (1931), dismissed, Randall v. United States, 51 S. Ct. 349, 283 U.S. 826, 75 L. Ed. 1440, 1931 U.S. LEXIS 285 (1931).

84. —Actions for Recovery of Taxes.

Trial of a claim for recovery of insurance taxes by the Tennessee claims commission and a review of the decision in the courts satisfies the claimant's right to due process. Stewart Title Guar. Co. v. McReynolds, 886 S.W.2d 233, 1994 Tenn. App. LEXIS 296 (Tenn. Ct. App. 1994).

85. Confidentiality Privileges.

Abrogation of the counselor privilege in child sexual abuse cases does not contravene due process under either the federal or state constitutions. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

86. Religion.

Excluding prospective jurors who oppose the death penalty on religious grounds from capital case juries does not violate the prospective jurors' equal protection rights. Wolf v. Sundquist, 955 S.W.2d 626, 1997 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1997).

Where a teacher alleged that the teacher's union's violations were “under color of state law,” the trial court erred when it dismissed the teacher's suit against the teacher's union for failure to state a claim; although the complaint that part of his union dues were being used in violation of, inter alia, his rights to free speech, free assembly and petition, and freedom of religion, was premised on state constitutional violations, when viewed under the Education Professional Negotiations Act (EPNA), T.C.A. § 49-5-601 — T.C.A. § 49-5-613, the complaint could also have been construed to have alleged other wrongs upon which relief could have been granted. The EPNA could have been interpreted to mean that a voluntary donation of a portion of the dues collected from the teachers exceeded the authority granted to the collective bargaining agent. Esquinance v. Polk County Educ. Ass'n, 195 S.W.3d 35, 2005 Tenn. App. LEXIS 446 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 31 (Tenn. 2006) .

87. Adoption.

The adoption statutes contained in T.C.A. § 36-1-101 et seq., provide a reasonable basis for the legislature's disparate treatment of children involved in adoption proceedings and those who are the subject of guardianship or foster care proceedings. In re M.J.S., 44 S.W.3d 41, 2000 Tenn. App. LEXIS 704 (Tenn. Ct. App. 2000).

88. Double Jeopardy.

Civil forfeiture does not constitute punishment for purposes of the Double Jeopardy Clause in either the Tennessee or the United States Constitutions. State v. Sprunger, 458 S.W.3d 482, 2015 Tenn. LEXIS 177 (Tenn. Mar. 9, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. LEXIS 258 (Tenn. Mar. 16, 2015).

89. Pretrial Release.

Because a trial court had no rational basis for making it more difficult for a father, a defendant in a civil child support enforcement action, to obtain pretrial release than a criminal defendant, requiring a cash-only bond violated the father's right to equal protection of the law under both the state and federal constitutions; a trial court's discretion to require a cash-only appearance bond is constrained by the equal protection guarantees of the United States and Tennessee Constitutions. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

In order to comport with the Equal Protection guarantees of both the United States and Tennessee Constitutions in a child support enforcement action, the court must follow the applicable bail statutes set forth in the Release from Custody and Bail Reform Act of 1978 unless the bail statute or statutes conflict with T.C.A. § 36-5-101(f)(2), in which case § 36-5-101(f)(2) controls; this mandate includes T.C.A. §§ 40-11-122 and 40-11-118. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Defendants in child support enforcement actions, by virtue of their alleged wrong, pose no risk of danger to the public, and a civil defendant not facing the possibility of a prison sentence upon conviction has less incentive to flee than a criminal defendant; considering the civil contemnor's risk to the community and incentive to flee, it is illogical to make it more difficult for a defendant in a child support enforcement action to secure pretrial release than it for a criminal defendant. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

NOTES TO DECISIONS

1. In General.

Although the language of § 39-2-203(i)(12) (repealed) could be read to permit the state to present evidence of murders other than the defendant's record of convictions to show this aggravating circumstance beyond a reasonable doubt, such a construction would violate a number of state constitutional guarantees, including the rights to a trial by an impartial jury, to an indictment or presentation, to confront witnesses against him, and against self-incrimination, all guaranteed by Tenn. Const. art. I, § 9. State v. Bobo, 727 S.W.2d 945, 1987 Tenn. LEXIS 1057 (Tenn. 1987), cert. denied, Bobo v. Tennessee, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155, 1987 U.S. LEXIS 3866 (1987).

Plain error existed in the trial court's conducting trial into the late night and early morning hours of the next day. State v. Parton, 817 S.W.2d 28, 1991 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. 1991).

Although the provisions in U.S. Const. amend. 5, and Tenn. Const. art. I, § 9 are not identical, the supreme court of Tennessee has previously declined to hold that protection under the state constitution is broader than that of the federal constitution merely because the language of the two provisions is not the same; however, this observation does not foreclose the possibility that the state constitutional provision might be applied more broadly than its federal counterpart, based upon considerations other than, and in addition to, the difference in terminology. State v. Smith, 834 S.W.2d 915, 1992 Tenn. LEXIS 360 (Tenn. 1992).

2. Due Process.

Defendant's conviction for first-degree murder was appropriate, because he failed to show that his due process rights were violated since the record contained little evidence to support his contention that the jurors actually saw him wearing handcuffs; also, what evidence did exist revealed that the jury was not unduly prejudiced by the sight of defendant in handcuffs. State v. Ordway, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 604 (Tenn. Crim. App. July 27, 2007), cert. denied, Ordway v. Tennessee, 170 L. Ed. 2d 764, 128 S. Ct. 1894, 552 U.S. 1321, 2008 U.S. LEXIS 3131 (2008).

Defendant's first degree premeditated murder was reversed because the trial court erred in allowing defendant's expert witness to testify for the State where an ordinary person knowledgeable of all the relevant facts in this case would conclude that allowing the expert to switch sides and testify for the State posed a substantial risk of disservice to the public interest and to defendant's fundamental right to a fair trial and the State failed to rebut the presumption in favor of disqualification. State v. Larkin, 443 S.W.3d 751, 2013 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Mar. 28, 2013).

Defendant was not entitled to relief on his claim that his rights to due process were violated when the trial court dismissed, without defendant being present, the violation of probation warrants because there was no case law or statute that supported his interpretation of the constitution. State v. Cauley, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. May 12, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 783 (Tenn. Sept. 17, 2015).

Defendant's right to confront a witness against defendant was violated because the trial court allowed the admission of a videotape of defendant performing field sobriety tasks when the officer conducting those tasks was not present at trial. State v. Carey, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 984 (Tenn. Crim. App. Dec. 10, 2015).

Trial court did not violate defendant's right against self-incrimination, by requiring defendant to show the jury the tattoos on defendant's arm, because the State of Tennessee used the tattoos solely for the purpose of identification. Furthermore, defendant by removing defendant's shirt and exposing defendant's arms was not exhibiting defendant in a way not commonly seen in public. State v. Pillow, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 617 (Tenn. Aug. 18, 2016).

Defendant's constitutional rights were not violated by the trial court's decision to allow an incarcerated witness for the State of Tennessee to wear street clothes while giving testimony at defendant's trial. Furthermore, while the trial court erred by prohibiting defendant from naming the pending offense for which the witness was charged, considering the evidence and the information that the trial court did allow defendant to mention, the error was harmless beyond a reasonable doubt. State v. Moses, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 369 (Tenn. Crim. App. May 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 660 (Tenn. Sept. 22, 2016).

Defendant did not prove that the jury at defendant's trial was not fair and impartial because defendant did not provide the appellate court of a transcript of the voir dire, so that the appellate court had to assume that the trial court's findings at the motion for new trial were correct. Moreover, there was no evidence that a member of the jury venire did anything improper and there was no evidence that an apparent member of the jury who was a school principal did anything improper or knew the prosecutor through the church that they attended. State v. Dickerson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. June 13, 2016).

Trial court erred in dismissing defendant's re-indictment for rape of a child and aggravated sexual battery based on a violation of defendant's due process right, because the prosecution commenced within the applicable statutory periods, the length of the delay, between 7 and 12 years, was not excessive, the bulk of the delay was attributable to the victim's reluctance to come forward and changing memory, factors not within the control of either the State or defendant, and defendant's inability to call certain witnesses due to death or failure to locate did not demonstrate actual prejudice. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. Aug. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 937 (Tenn. Dec. 15, 2016).

Trial court did not err in denying defendant's motion to suppress statements, because the evidence preponderated against a finding that defendant was in custody when he went to the sheriff's office of his own accord and agreed to talk to the authorities, and was allowed to go to the restroom unaccompanied, was made aware that he was free to leave at any time, and was not subject to coercive or overbearing interrogation techniques. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Defendant was not denied a fair trial by the State's failure to disclose investigators' notes or a statement defendant made to a detective, as one agent's notes were not material and one agent's notes were provided in compliance with Tenn. R. Crim. P. 26.2. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Count of the indictment charging defendant with employment of a firearm during the attempt to commit a dangerous felony was not void for failing to name the underlying predicate felony where the record made it clear that the attempted second degree murder offense, which was the only dangerous felony with which defendant was charged, served as the predicate felony. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Defendant's right to a fair trial was not violated when the prosecutor used the term “rape” in closing arguments, it was not so inflammatory that it likely affected the the outcome of the trial given the daughter's testimony that she did not consent to defendant's sexual abuse and defendant's failure to object at trial. State v. Hawkins, 519 S.W.3d 1, 2017 Tenn. LEXIS 272 (Tenn. May 1, 2017).

While two counts of defendant's indictment for attempted introduction of contraband into a penal facility did not reference the attempt statute, the indictment satisfied the requirements of the United States Constitution, the Tennessee Constitution, and the attempt statute because the indictment charged a violation covered by the criminal attempt statute and was sufficient to place defendant on notice of the accused crime, to confer jurisdiction on the trial court, and to protect defendant against double jeopardy. State v. Matthews, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 252 (Tenn. Apr. 13, 2017).

Defendant did not show a pre-indictment delay required an indictment's dismissal because defendant did not show (1) defendant sustained actual prejudice as a direct and proximate result of the delay, or (2) the State caused the delay to gain a tactical advantage or to harass defendant. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Dismissal of the burglary count in defendant's case was upheld on independent due process grounds; given the legislative history, T.C.A. § 39-14-402(a)(3) was never intended to cover buildings open to the public, and by charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting under T.C.A. §§ 39-14-105, 39-14-146, prosecutors are abusing their charging discretion by unreasonably expanding the reach of the burglary statute, and charging of burglary in these instances is unreasonable, unjust, and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper as the State failed to rebut the presumption of prosecutorial vindictiveness, regardless of whether the trial court explicitly relied on such; the State admitted it charged defendant with burglary following defendant's first mistrial because it intended use its discretionary charging authority to prosecute all banned, repeat shoplifters like defendant with burglary, which was retaliatory and violative of due process. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Dismissal of the burglary charge under T.C.A. § 39-14-402(a)(3) was proper, as the delay in charging defendant with burglary was attributable to the State because it had evidence of defendant's ban from the store in question prior to her first trial and failed to investigate it, and the State's deficiencies did not provide a sound basis for burdening defendant with the addition of a felony offense after a mistrial. State v. Jensen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Aug. 25, 2017).

Defendant was not entitled to relief due to missing audiotape of a controlled drug buy because it did not appear that the audiotape was exculpatory evidence the State of Tennessee had a duty to preserve. An officer identified defendant as the driver of car in which a drug transaction took place, and the State voluntarily dismissed the drug sale charge for the failure to preserve and did not mention the content of the interaction between defendant and a confidential informant until defendant brought the missing evidence to the jury's attention. State v. Buford, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. Jan. 27, 2020).

Defendant was not entitled to relief on his claim that his statement should have been suppressed, where defendant voluntarily reinitiated his conversation with a detective after telling the detective that he had an attorney. Defendant did not allege that the detective coerced him into reinitiating the conversation, and the video of the interview showed that the detective did not say anything before defendant began asking questions about his case and voluntarily made the statement at issue. State v. Banks, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. Aug. 25, 2020).

3. Right to be Heard.

The right of the accused “to be heard by himself” is a privilege which is waived by not being demanded. Wilson v. State, 50 Tenn. 232, 1871 Tenn. LEXIS 87 (1871); Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882). It is never voluntarily awarded, but if it be demanded, the court must allow him the privilege of conducting and arguing his case or assisting therein. Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), overruled in part, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

In a civil case, it was stated that, under the provisions of Tenn. Const. art. I, § 9, one accused of crime has a right to be heard both by himself and by his counsel in argument upon the case or explanation of facts in evidence. Grace v. Curley, 3 Tenn. App. 1, — S.W. —, 1926 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1926).

The right of the accused to be present and to make defense applies not only in trials for felony, but also misdemeanor as well, as in State v. Sexton, 121 Tenn. 35, 114 S.W. 494, 1908 Tenn. LEXIS 4 (1908) and Lebanon & Big Spring Tpk. Co. v. State, 141 Tenn. 675, 214 S.W. 819, 1919 Tenn. LEXIS 18 (1919); Gray v. State, 158 Tenn. 370, 13 S.W.2d 793, 1928 Tenn. LEXIS 164 (1928). But see Ready v. State, 155 Tenn. 15, 290 S.W. 28, 1926 Tenn. LEXIS 13 (1927).

Allowing jurors to read notes taken during course of trial in their deliberations did not violate right of accused to be heard by himself and by counsel. Watkins v. State, 216 Tenn. 545, 393 S.W.2d 141, 1965 Tenn. LEXIS 598, 14 A.L.R.3d 818 (1965).

While no person accused of a crime may be compelled to testify he has the right to do so if he chooses. Campbell v. State, 4 Tenn. Crim. App. 100, 469 S.W.2d 506, 1971 Tenn. Crim. App. LEXIS 488 (Tenn. Crim. App. 1971).

The accused in a criminal prosecution does not have a constitutional right to make an unsworn statement. Quite aside from the fact that such a statement would be of questionable value, there is for consideration the patent unfairness to the state of permitting a defendant to make an unsworn statement, not subject to cross-examination, and without leave for the state to comment upon his failure to testify in the regular manner. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

When a defendant argues in his own behalf he is limited to fair comment on the evidence and may not use argument as a guise for an unsworn statement. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

A defendant has no absolute right to make an unsworn statement before the jury. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

A defendant has no absolute right to hybrid representation. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

While State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976) pretermits the issue of waiver in cases of hybrid representation, placing in the trial court the discretion to permit such participation of a defendant, this discretion must be exercised sparingly and only in exceptional cases. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

In exercising its discretion in hybrid representation cases, not only must the trial court make the threshold determinations: (1) That defendant is not seeking to disrupt the trial; (2) That the defendant has the intelligence, ability and general competence to participate in his own defense; but the trial court must also ensure that: (3) The circumstances are so exceptional as to justify the defendant's request, which circumstances must be made to appear on the record; (4) The defendant has the opportunity to confer with counsel out of the presence of the jury prior to his participation; (5) Out of the presence of the jury, the defendant is instructed that he may not state facts not in evidence; and (6) The defendant and the jury are instructed that the defendant is acting as his own counsel and that the defendant is not giving any evidence or testimony. State v. Franklin, 714 S.W.2d 252, 1986 Tenn. LEXIS 838 (Tenn. 1986), appeal dismissed, Franklin v. Tennessee, 479 U.S. 979, 107 S. Ct. 563, 93 L. Ed. 2d 569, 1986 U.S. LEXIS 4858 (1986).

The right to testify by a criminal defendant is fundamental and constitutionally guaranteed by Tenn. Const. art. I, § 9 and U.S. Const. amends. 5 and 14. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

The right to testify must be personally waived by the criminal defendant. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

Although a criminal defendant's right to testify is a fundamental constitutional right, violation of that right is subject to constitutional harmless error analysis, meaning that the burden is on the state to prove that the constitutional right violation is harmless beyond a reasonable doubt. Factors impacting upon the harmless error analysis include: (1) The importance of the defendant's testimony to the defense case; (2) The cumulative nature of the defendant's testimony; (3) The presence or absence of evidence corroborating or contradicting the defendant on material points; and (4) The overall strength of the prosecution's case; these four factors are merely instructive and not exclusive considerations. State v. Vaughan, 144 S.W.3d 391, 2003 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. 2003).

Where a criminal defendant asserted that he wanted to testify, and where the state put on no proof that refuted the defendant's testimony that he did not personally waive his right to testify, that right was violated; moreover, the violation of that right was not harmless where defendant's version of events was supported by other proof at trial, there was no evidence submitted that contradicted defendant's version of the events, and his version of the events contradicted the state's circumstantial proof of the case against him. The failure of the jury to hear defendant's version may have contributed to the finding that he was guilty of murder and aggravated arson and reversal of those convictions and remand for a new trial were ordered. State v. Vaughan, 144 S.W.3d 391, 2003 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. 2003).

Criminal defendants have the right to testify and that right is a fundamental right which must be personally waived; to ensure that the defendant's right has been personally waived, procedural guidelines exist that call for defense counsel to request a jury-out hearing to demonstrate that the defendant's waiver of the right to testify has been knowingly, intelligently, and voluntarily made and the trial judge has a duty to ensure that a criminal defendant personally waives the right to testify. State v. Vaughan, 144 S.W.3d 391, 2003 Tenn. Crim. App. LEXIS 1104 (Tenn. Crim. App. 2003).

4. —Joint Participation by Defendant and Counsel.

In all criminal prosecutions the accused does not have a constitutional right to participate in propria persona in his own defense and simultaneously to be represented by participating counsel. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

If the interests of justice so require, the trial judge, in exceptional circumstances, may permit the defendant to participate in the trial, including the cross-examination of witnesses and the argument of his own defense, but this discretion should be exercised sparingly and with caution and only after a judicial determination that the defendant: (1) Is not seeking to disrupt orderly trial procedure; and (2) Has the intelligence, ability and general competence to participate in his own defense. State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

It is entirely a matter of grace for a defendant to represent himself and have counsel, and such privilege should be granted by the trial court only in exceptional circumstances. State v. Melson, 638 S.W.2d 342, 1982 Tenn. LEXIS 431 (Tenn. 1982), cert. denied, Melson v. Tennessee, 459 U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983).

The reference to “elbow counsel” in State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), is merely a shorthand form of saying that a criminal defendant has the right to conduct his own defense and in the process can confer with what has also been referred to as “standby counsel.” Smith v. State, 757 S.W.2d 14, 1988 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1988).

5. —Jury Selection.

The “right to be heard by himself” requires the presence of the defendant from the beginning of the impaneling of the jury until the jury's discharge and, in the absence of evidence that the defendant waived the right to be present for jury selection, the defendant's total absence from jury selection is not subject to harmless error analysis and requires automatic reversal. State v. Muse, 967 S.W.2d 764, 1998 Tenn. LEXIS 196 (Tenn. 1998).

6. —Right to Have Witnesses.

If the informant is a material witness to the offense for which the accused is being prosecuted and is a witness to the crime that might be in a position to assist the defense in countering the accusation, if the state refuses to disclose his identity, then the defendant is effectively deprived of the important right to have his witnesses. The disclosure of the informant's identity may be presumed to be relevant and helpful to the defense or, at least, essential to a fair determination of the cause. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

When determining whether the issue of the right to present the testimony of certain witnesses and whether the constitutional right to present a defense has been violated by the exclusion of evidence, the analysis should consider whether: (1) The excluded evidence is critical to the defense; (2) The evidence bears sufficient indicia of reliability; and (3) The interest supporting exclusion of the evidence is substantially important. State v. Brown, 29 S.W.3d 427, 2000 Tenn. LEXIS 24 (Tenn. 2000), cert. denied, Tennessee v. Brown, 531 U.S. 916, 121 S. Ct. 275, 148 L. Ed. 2d 200, 2000 U.S. LEXIS 6506 (2000).

Defendant's due process rights were not violated in a murder case where the court excluded testimony of alibi witnesses where defendant failed to disclose the witnesses, and instead, sprang the witnesses on the prosecution in order to gain a tactical advantage. State v. Looper, 118 S.W.3d 386, 2003 Tenn. Crim. App. LEXIS 83 (Tenn. Crim. App. 2003), cert. denied, Looper v. Tennessee, 540 U.S. 1060, 124 S. Ct. 836, 157 L. Ed. 2d 717, 2003 U.S. LEXIS 8789 (2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 675 (Tenn. 2003).

7. — —Expert Witnesses.

Trial court properly denied defendant's motion for state funds to have fingerprint and other scientific tests performed since the defendant had admitted being with the complainant and thus the tests would have availed nothing; moreover, an indigent defendant has no constitutional right to the provision to expert witnesses at state expense. Couch v. State, 566 S.W.2d 288, 1978 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. 1978).

8. —Exculpatory Evidence.

The state deprived defendant of due process of law by failing to furnish defendant with exculpatory evidence, which was in its possession. State v. Marshall, 845 S.W.2d 228, 1992 Tenn. Crim. App. LEXIS 578 (Tenn. Crim. App. 1992).

Inmate's allegations of the newly discovered exculpatory evidence that was suppressed by the state that the accomplice told another person that he was the sole shooter could not have been litigated previously and raised serious questions regarding whether the inmate, in fact, murdered the victim. Thus, due process precluded summary dismissal of her claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence; at the hearing, the inmate would have the opportunity to establish that there was a “reasonable probability” that the newly discovered evidence might have resulted in a different judgment if the evidence had been admitted at the previous trial and, if she made that showing and she established that she “was without fault” in failing to present the newly discovered evidence at the appropriate time, she would be entitled to a new trial. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

Fact that the inmate escaped from jail and remained a fugitive for many years did not change the fact that the exculpatory evidence was withheld by the state and, even if the inmate had not escaped, there was no reason to believe the exculpatory evidence would have been disclosed voluntarily. Thus, due process precluded the summary dismissal of the inmate's claim based upon a statutory time bar and she was entitled to a hearing to evaluate the claims contained in her petition for writ of error coram nobis relating to the newly discovered evidence. Freshwater v. State, 160 S.W.3d 548, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 94 (Tenn. Jan. 31, 2005).

9. Right to Counsel.

The appearance of more than one attorney on each side of a case is a matter within the discretion of the court. The right to be heard by attorney does not entitle a party to more than one, except by permission, and a refusal is not a reversible error. Chambers v. State, 22 Tenn. 237, 1842 Tenn. LEXIS 79 (1842).

The right of the accused “to be heard by … his counsel” means more than a simple argument before the jury. It entitles the accused to the advice and assistance of counsel in the preparation of his defense and in properly shaping the same, so that his innocence may be made to appear, if the facts shall so warrant. For this purpose, counsel must be given time to prepare the defense. Especially is this true, when counsel is assigned by the court to defend the accused. State v. Poe, 76 Tenn. 647, 1881 Tenn. LEXIS 57 (1881).

The right of the accused to be heard by himself and his counsel is subject to the control of the courts in the exercise of a sound judicial discretion. In cases involving the life or liberty of the accused, this discretion intrusted to the courts should be carefully and cautiously exercised. A mere general exception to the limitation of time for argument by counsel is insufficient to cause a reversal, unless the court can see that the accused might have been injured by an improper exercise of the judicial discretion. The grounds of objection to the limitation of time for argument should be stated, and at the close of the argument under the limited time, it should be stated or shown that the argument had not been completed, and an extension of time to complete the argument should be asked for. Kizer v. State, 80 Tenn. 564, 1883 Tenn. LEXIS 208 (1883).

Under Tenn. Const. art. I, § 9, accused is guaranteed the assistance of counsel in the preparation and presentation of his defense. Poindexter v. State, 183 Tenn. 193, 191 S.W.2d 445, 1946 Tenn. LEXIS 201 (1946).

Where counsel was assigned by the court to represent the defendant, but not until he was brought out and arraigned for trial, which was at once proceeded with, and counsel only had ten minutes to consult with the defendant and to make preparations for his proper defense, defendant was deprived of a right guaranteed by Tenn. Const. art. I, § 9. Poindexter v. State, 183 Tenn. 193, 191 S.W.2d 445, 1946 Tenn. LEXIS 201 (1946).

The constitutional and statutory provisions relating to the right of accused to have the assistance of counsel for his defense require the appointment of counsel in all cases where an accused is unable to procure the services of an attorney, and where the right has not been intentionally and competently waived. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Each case must stand on its own in determining what is a reasonable time for preparation of a defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

The general rule is that a reasonable time for preparation of defendant's case must be allowed between the time of assignment of counsel and the time of trial. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Where after granting defense counsel's motion to withdrawal from case, court appointed another attorney and ordered case to trial on the same day after denying counsel's motion for continuance to prepare case, counsel was not afforded a reasonable time to confer with defendant and prepare his defense. Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192, 1963 Tenn. LEXIS 468 (1963).

Denial of access of accused to counsel at some time prior to trial does not operate to prevent accused from ever being tried but rather present the question of whether the trial of the accused became infected by the germ of the violation of the constitutional right to counsel. Scott v. State, 216 Tenn. 375, 392 S.W.2d 681, 1965 Tenn. LEXIS 661 (1965).

Petitioner in habeas corpus proceeding was not entitled to relief on ground that he was not adequately represented by counsel because attorneys were only appointed fifteen minutes before trial where it appeared that petitioner did in fact commit the crimes with which he was charged and, petitioner had no witnesses or defense and elected to plead guilty after counsel advised that they had been able to obtain agreement by attorney-general to accept minimum sentence. State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789, 1967 Tenn. LEXIS 423 (1967).

Where defendant through counsel waived right to respond to state's initial closing argument, it was prejudicial error to allow state a second closing argument in which state presented its only real attack and to which defendant was not permitted to respond. Wallis v. State, 546 S.W.2d 244, 1976 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1976).

Defendants were not denied a fair and impartial trial where district attorney general and other assistants participated in trial although one assistant who had participated in preparation for trial was barred from the trial because of a remote connection with the defendants through a legal aid clinic case. Mattress v. State, 564 S.W.2d 678, 1977 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1977).

Where one of the assistant district attorneys during his previous employment at a legal clinic had been assigned to other cases involving the defendants, and he had done some preparatory work for the robbery prosecutions at issue but he had at no time received or communicated any confidential information and did not participate in the robbery trial, he nonetheless was properly disqualified from the robbery prosecution, but disqualifying the entire district attorney general's office or dismissal of the case was not necessary to preserve the defendants' right to a fair trial or the confidentiality of the attorney-client relationship. Mattress v. State, 564 S.W.2d 678, 1977 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1977).

Lack of seating in the courtroom which forced defendant's attorneys to stand while awaiting their participation in trial did not deprive defendant of proper representation by counsel. Sesson v. State, 563 S.W.2d 799, 1978 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1978).

When an arrest is made without a warrant and a lineup is conducted there is no constitutional right to counsel; however, even then the accused is constitutionally protected against unnecessarily suggestive procedures. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

One charged with a crime who is unable to obtain representation must be furnished counsel by the state. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

Unless the right is waived, every indigent defendant is entitled to have counsel assigned to represent him in all matters necessary for his defense and at every stage of the proceedings. State v. Gardner, 626 S.W.2d 721, 1981 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1981).

A codefendant's counsel has no obligation to protect the interests of another defendant. State v. Brown, 644 S.W.2d 418, 1982 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 1982).

Where trial judge held trial a period of 14 hours and 45 minutes on the first day of trial, and 14 hours and 30 minutes on the second day of trial, the stressful hours involved in the trial, over the protest of defendant's counsel, without the express agreement of the jurors, and without unusual and compelling circumstances, violated the rule laid down in Hembree v. State , 546 S.W.2d 235, 1976 Tenn. Crim. App. LEXIS 307, 99 A.L.R.3d 586 (Tenn. Crim. App. 1976) and constituted deprivations of defendant's right to due process under U.S. Const. amend. 14 and Tenn. Const. art. I, § 9, and his right to counsel, U.S. Const. amend. 6, Tenn. Const. art. I, § 9, and required a reversal of his conviction and a remand for a new trial. State v. McMullin, 801 S.W.2d 826, 1990 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. 1990).

Defendant's counsel was properly disqualified where an actual conflict of interest existed because counsel was also a part time assistant district attorney in the same county where the case was being prosecuted, counsel's dual roles in the same county created an actual conflict of interest that the state could not be forced to waive, and the conflict of interest superseded defendant's right to the counsel of his choosing. State v. White, 114 S.W.3d 469, 2003 Tenn. LEXIS 828 (Tenn. 2003).

Under both U.S. Const. amend. 5 and Tenn. Const. art. I, § 9, an accused must articulate a desire to have counsel present sufficiently clearly that a reasonable police officer would understand the statement to be a request for an attorney; therefore, defendant failed to invoke the right to counsel by making several equivocal requests to an unidentified police officer before questioning began. State v. Saylor, 117 S.W.3d 239, 2003 Tenn. LEXIS 861 (Tenn. 2003), cert. denied, Saylor v. Tennessee, 540 U.S. 1208, 124 S. Ct. 1483, 158 L. Ed. 2d 133, 2004 U.S. LEXIS 1500 (2004).

Record did not reflect that the trial court made an inquiry on the record to ensure that defendant knowingly and intelligently waived his right to assistance of counsel at the hearing; because defendant was denied counsel throughout the prosecution's case in chief, this denial affected the entire criminal proceeding, which was a structural error requiring automatic reversal. Cottingham v. Cottingham, 193 S.W.3d 531, 2006 Tenn. LEXIS 442 (Tenn. 2006).

Defendant's right to counsel was not violated by post-presentment interrogations where he was meticulously informed of his right to counsel and of the consequences of failing to exercise that right before he confessed to murder; he not only agreed to speak with an officer, but also signed an advice and waiver of rights form. State v. Rollins, 188 S.W.3d 553, 2006 Tenn. LEXIS 191 (Tenn. 2006), cert. denied, Rollins v. Tennessee, 549 U.S. 866, 127 S. Ct. 162, 166 L. Ed. 2d 115, 2006 U.S. LEXIS 6933 (2006).

Where the police asked defendant if he had an attorney and defendant initially responded in the affirmative but then indicated that what he really had was a prepaid legal services plan and asked for his cellular phone, where the police officers refused to permit him to use his own phone but made a telephone available to defendant so that he could contact his attorney but defendant declined to use it and where defendant agreed to speak with the police after they advised him of his Miranda rights, the trial court erred in finding that defendant had invoked his right to counsel and in granting defendant's motion to suppress. Defendant's ambiguous references to an attorney did not constitute an unequivocal request; as such, the police were not required to cease their interrogation, and defendant's statement was admissible. State v. Turner, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 20, 2009), aff'd, 305 S.W.3d 508, 2010 Tenn. LEXIS 148 (Tenn. Mar. 19, 2010).

Defendant's conviction for first-degree felony murder was proper because defendant did not show that the trial court heard his motion for new trial while he was not represented by appointed counsel. The record did not contain a transcript of any of the motion for new trial proceedings; nothing in the record indicated that defendant refused the services of his appointed counsel in writing and signed the written refusal in the presence of the court; the record did not show that defendant moved the court to dismiss his counsel and appoint a substitute; the record did not show that the trial court heard defendant's motion for new trial after allowing trial counsel to withdraw and before appointing new counsel; and it was the duty of defendant to provide a record that conveyed a fair, accurate, and complete account of what transpired. State v. Hayes, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 1085 (Tenn. Crim. App. Dec. 23, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 540 (Tenn. May 25, 2011), dismissed, Hayes v. Westbrooks, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 120263 (M.D. Tenn. Aug. 28, 2014).

By failing to provide an adequate record for review, petitioner has waived consideration of his ineffective assistance claim. Graham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 425 (Tenn. June 24, 2016).

Defendant's socks and photographs of his hands were not the products of a coerced statement from defendant where the detectives testified that the observed the blood on the bottom of defendant's sock and on his thumb shortly after entering his jail cell and well before his invocation of his Miranda rights and in the audio recording of defendant's interview a detective mentioned the blood on defendant's sock within the first two minutes of the interview, after he had been advised of his Miranda rights but well before he requested an attorney. State v. Peden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 699 (Tenn. Crim. App. Sept. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 976 (Tenn. Dec. 14, 2016).

Defendant's petition for post-conviction relief was properly denied because defendant's right to counsel was not violated as no conflict of interest existed because, although trial counsel had previously represented a witness, counsel was unaware of the witness's connection to defendant's case during counsel's representation of the witness; counsel did not obtain confidential information relevant to defendant's case during counsel's representation of the witness; counsel and the witness did not discuss any conduct that could have been used to impeach the witness at defendant's trial; and nothing about counsel's representation of the witness would have impaired counsel's ability to represent defendant. Woodard v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Nov. 8, 2016).

Because there was no right to effective assistance of counsel on defendant's motion for correction of an illegal sentence, defendant's claim for post-conviction relief could not be premised on the supposed deficiency of counsel in the proceeding. Northener v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. Apr. 25, 2017).

Postconviction court's dismissal of petitioner's claim regarding the effectiveness of Tenn. R. App. 11 counsel was affirmed because it was not a cognizable claim for postconviction relief, as defendants had no constitutional right to counsel in postconviction proceedings. Long v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. Dec. 3, 2018).

10. —When Attaches.

Right to counsel attaches when adversary judicial proceedings are initiated. Initiation is marked by formal charge, which is construed to be an arrest warrant, or at the time of the preliminary hearing in those rare cases where a preliminary hearing is not preceded by an arrest warrant, or by indictment or presentment when the charge is initiated by the grand jury. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

As a defendant had no right to withhold certain clothing from the authorities, the lack of counsel at the time of surrender of the clothing was of no significance. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

The right to have counsel present at a corporeal lineup does not attach until a formal charge or arrest has been made on the charges. It does not attach during the investigation stage of the proceedings. This is the rule even though the accused is in custody on other charges and has counsel in those cases. State v. Strange, 772 S.W.2d 440, 1989 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. 1989).

A person who has been stopped by the police for driving under the influence does not have the right to speak with an attorney prior to making the decision as to whether to submit to or refuse a blood or breath test. State v. Frasier, 914 S.W.2d 467, 1996 Tenn. LEXIS 61 (Tenn. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. LEXIS 203 (Tenn. Mar. 18, 1996).

An unambiguous request for counsel is necessary to foreclose further police questioning; a defendant is entitled to suppression of his statement if he unequivocally requested counsel and that request was not honored. State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1169 (Tenn. Dec. 1, 2003).

In a murder case, defendant's inculpatory statement made to law enforcement officers pertaining to the homicide following his arrest for an unrelated matter was not subject to suppression, because defendant's statements regarding counsel were equivocal and the officers had no duty to clarify defendant's statements before continuing with substantive questioning about the crime under investigation. State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1169 (Tenn. Dec. 1, 2003).

Both U.S. Const. amend. 6 and Tenn. Const. art. I, § 9 guarantee the right to assistance of counsel at critical stages of the prosecution where counsel's absence might derogate from the accused's right to a fair trial. State v. Blye, 130 S.W.3d 776, 2004 Tenn. LEXIS 131 (Tenn. 2004), cert. denied, Blye v. Tennessee, 125 S. Ct. 289, 160 L. Ed. 2d 74, 543 U.S. 845, 2004 U.S. LEXIS 6027 (U.S. 2004).

To determine whether a particular stage is critical, the court must scrutinize the pre-trial event with a view to ascertaining whether presence of counsel is necessary to assure fairness and the effective assistance of counsel at trial; a pretrial stage is not critical when confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. State v. Blye, 130 S.W.3d 776, 2004 Tenn. LEXIS 131 (Tenn. 2004), cert. denied, Blye v. Tennessee, 125 S. Ct. 289, 160 L. Ed. 2d 74, 543 U.S. 845, 2004 U.S. LEXIS 6027 (U.S. 2004).

Because defendant did not unequivocally invoke his right to counsel under the fifth amendment to the United States Constitution and Tenn. Const. art. I, § 9 until he said “get me a lawyer” nearly an hour-and-a-half into the police questioning, the trial court should not have granted the motion to suppress any of the statements made prior to that point. State v. Turner, 305 S.W.3d 508, 2010 Tenn. LEXIS 148 (Tenn. Mar. 19, 2010), cert. denied, Turner v. Tennessee, 560 U.S. 953, 130 S. Ct. 3396, 177 L. Ed. 2d 305, 2010 U.S. LEXIS 4666 (U.S. 2010).

Defendant's right to counsel was not violated where, at the time he made his statements to his ex-wife on October 15 and 16, 2002 he had not been charged with the murders and therefore the right to counsel had not attached as to those charges. State v. Willis, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016), cert. denied, Willis v. Tennessee, 197 L. Ed. 2d 466, 137 S. Ct. 1224, — U.S. —, 2017 U.S. LEXIS 1710 (U.S. Mar. 6, 2017).

Trial court did not err in denying defendant's motion to suppress statements that defendant made to the police during an interrogation at a police station because defendant's multiple references to an attorney did not rise to the level of an unequivocal invocation of defendant's right to counsel. Instead defendant's statements indicated that defendant was still in the decision making process, but the statements did not clearly request counsel. State v. Freeman, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 24, 2019).

11. — —Psychiatric Evaluation.

A criminal defendant has no right under either U.S. Const. amend. 6 or Tenn. Const. art. I, § 9 to have counsel present at a psychiatric examination prior to his or her criminal trial; therefore, a prisoner asserting incompetence to be executed has no such right. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

12. —Civil Trials.

There is no absolute right to counsel in a civil trial. Barish v. Metropolitan Government of Nashville & Davidson County, 627 S.W.2d 953, 1981 Tenn. App. LEXIS 572 (Tenn. Ct. App. 1981).

Inmate did not have the right to counsel in a civil case alleging wrongful death that arose from a murder. Bell v. Todd, 206 S.W.3d 86, 2005 Tenn. App. LEXIS 583 (Tenn. Ct. App. 2005), appeal denied, Cit Bell v. Todd, — S.W.3d —, 2006 Tenn. LEXIS 214 (Tenn. 2006).

Inmate's right to counsel was not violated when a trial court refused to release funds sequestered for a victim's family in a wrongful death case because the losses of the family were worth far more than the value of an inmate's assets and property. Bell v. Todd, 206 S.W.3d 86, 2005 Tenn. App. LEXIS 583 (Tenn. Ct. App. 2005), appeal denied, Cit Bell v. Todd, — S.W.3d —, 2006 Tenn. LEXIS 214 (Tenn. 2006).

13. —Competency of Counsel.

Where there is a conflict in interest between two or more defendants this should be borne in mind by the trial judge and separate counsel appointed, but in order to take advantage of the conflict in interest rule the fact should be brought to the attention of the trial judge. State ex rel. Melton v. Bomar, 201 Tenn. 453, 300 S.W.2d 875, 1957 Tenn. LEXIS 323 (1957), cert. denied, Tennessee ex rel. Melton v. Bomar, 355 U.S. 851, 78 S. Ct. 65, 2 L. Ed. 2d 52, 1957 U.S. LEXIS 564 (1957).

Where the defendant selected his own counsel, consisting of more than one attorney, the fact that one of such counsel was ill or incompetent did not deprive the defendant of the right to be heard by counsel. Davis v. Bomar, 344 F.2d 84, 1965 U.S. App. LEXIS 5844 (6th Cir.), cert. denied, 382 U.S. 883, 86 S. Ct. 177, 15 L. Ed. 2d 124, 1965 U.S. LEXIS 504 (1965).

Where same appointed counsel represented both defendant and codefendant and codefendant pleaded guilty and gave damaging testimony against defendant who offered defense of alibi after repudiating earlier confession, appointed counsel was placed in position of representing parties with conflicting interests and defendant was deprived of effective assistance of counsel. Moran v. State, 4 Tenn. Crim. App. 399, 472 S.W.2d 238, 1971 Tenn. Crim. App. LEXIS 507 (Tenn. Crim. App. 1971).

The previously announced standard for gauging competency of counsel which was laid down in State ex rel. Richmond v. Henderson, 222 Tenn. 597, 439 S.W.2d 263, 1969 Tenn. LEXIS 496 (1969) to the effect that incompetency of counsel such as to be a denial of due process and effective representation must be such as to make a farce, sham or mockery of justice is expressly overruled and the standard adopted is whether the advice given or services rendered are within the range of competency demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975); McGee v. State, 739 S.W.2d 789, 1987 Tenn. Crim. App. LEXIS 2686 (Tenn. Crim. App. 1987).

The provisions of U.S. Const. amend. 6 and Tenn. Const. art. I, § 9 are identical in import with the result that a denial of the sixth amendment right to effective assistance of counsel is simultaneously a denial of the right to be heard by counsel as provided under the constitution of Tennessee. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975).

Constitutional standards as to effective representation of counsel by an accused to the effect that the advice given or services rendered must be within the range of competency demanded of attorneys in criminal cases apply with equal force to privately retained counsel and counsel appointed to represent the indigent and cases to the contra are overruled. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975).

In determining whether advice given or services rendered by an attorney are within the range of competence demanded of attorneys in criminal cases so as to afford an accused his constitutional right of representation by counsel, trial courts and defense counsel should look to and be guided by the American Bar Association's Standard relating to the administration of criminal justice in general and specifically those portions of the standards which relate to the defense function. Baxter v. Rose, 523 S.W.2d 930, 1975 Tenn. LEXIS 605 (Tenn. 1975).

Where one of the assistant district attorneys during his previous employment at a legal clinic had been assigned to other cases involving the defendants, and he had done some preparatory work for the robbery prosecutions at issue but he had at no time received or communicated any confidential information and did not participate in the robbery trial, he nonetheless was properly disqualified from the robbery prosecution, but disqualifying the entire district attorney general's office or dismissal of the case was not necessary to preserve the defendants' right to a fair trial or the confidentiality of the attorney-client relationship. Mattress v. State, 564 S.W.2d 678, 1977 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1977).

The burden of proof of a criminal defendant making an assertion of ineffectiveness is twofold: (1) The defendant must show that the representation was deficient; and (2) The defendant must prove that the deficiencies prejudiced the defense, depriving the defendant of a fair trial. State v. Bishop, 731 S.W.2d 552, 1986 Tenn. Crim. App. LEXIS 2867 (Tenn. Crim. App. 1986).

Protection of an accused's right to effective assistance of counsel does not require that his attorney's every act or omission claimed to be deficient be examined in isolation. The issue is whether, considering the case as a whole, including performance by the accused, counsel provided reasonable professional assistance. State v. Mitchell, 753 S.W.2d 148, 1988 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. 1988).

When the petitioner seeks to vitiate a conviction on the ground that counsel's representation was ineffective, the petitioner must prove by a preponderance of the evidence that: (a) the services rendered or advice given by counsel fell below “the range of competence demanded of attorneys in criminal cases,” and (b) the unprofessional conduct or errors of counsel actually had an adverse effect on the defense. Teague v. State, 772 S.W.2d 915, 1988 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. 1988), rehearing denied, — S.W.2d —, 1989 Tenn. Crim. App. LEXIS 45 (1989), appeal denied, — S.W.2d —, 1989 Tenn. LEXIS 292 (Tenn. June 5, 1989), overruled, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

The two-part standard to claims of ineffective assistance of counsel applies to the entry of a plea of nolo contendere. Teague v. State, 772 S.W.2d 932, 1988 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1988), cert. denied, Teague v. Tennessee, 493 U.S. 874, 110 S. Ct. 210, 107 L. Ed. 2d 163, 1989 U.S. LEXIS 4239 (1989), overruled in part, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled in part, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Where the petitioner established by a preponderance of the evidence that his attorney committed an egregious error in advising the petitioner that his conviction following the plea of nolo contendere could not be used for any purpose in the murder case; the error was so serious that the petitioner was denied the effective assistance of counsel contemplated by the constitution. Teague v. State, 772 S.W.2d 932, 1988 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. 1988), cert. denied, Teague v. Tennessee, 493 U.S. 874, 110 S. Ct. 210, 107 L. Ed. 2d 163, 1989 U.S. LEXIS 4239 (1989), overruled in part, Owens v. State, 908 S.W.2d 923, 1995 Tenn. LEXIS 614 (Tenn. 1995), overruled in part, State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

To establish prejudice as the result of ineffective assistance of counsel, the evidence stemming from the failure to prepare a sound defense or present witnesses must be significant, but it does not necessarily follow that the trial would have otherwise resulted in an acquittal. A reasonable probability of being found guilty of a lesser charge, or a shorter sentence, satisfies the requirement that the result of the proceeding would have been different. State v. Zimmerman, 823 S.W.2d 220, 1991 Tenn. Crim. App. LEXIS 786 (Tenn. Crim. App. 1991).

The efforts of trial counsel were deficient, with respect to the peremptory and arbitrary abandonment of the pre-established and reasonably sound defense strategy set out in the opening statement. State v. Zimmerman, 823 S.W.2d 220, 1991 Tenn. Crim. App. LEXIS 786 (Tenn. Crim. App. 1991).

The cumulative effect of the misleading opening statement and the failure to present favorable witnesses and other evidence was exacerbated by the trial counsel's recommendation to the defendant not to testify. State v. Zimmerman, 823 S.W.2d 220, 1991 Tenn. Crim. App. LEXIS 786 (Tenn. Crim. App. 1991).

Where the public defender was partly to blame for not being prepared for trial, denial of defendant's motion for a continuance denied defendant his constitutional right to effective assistance of counsel. State v. Covington, 845 S.W.2d 784, 1992 Tenn. Crim. App. LEXIS 573 (Tenn. Crim. App. 1992).

Where petitioner did not present testimony of any uncalled witnesses or present any evidence that would have made a difference if presented differently, he completely failed to show any prejudice resulting from any claimed deficiency in counsel. Scott v. State, 936 S.W.2d 271, 1996 Tenn. Crim. App. LEXIS 487 (Tenn. Crim. App. 1996).

When assessing performance of trial counsel, courts must eliminate effects of hindsight and evaluate challenged conduct from counsel's perspective at the time. Henley v. State, 960 S.W.2d 572, 1997 Tenn. LEXIS 615 (Tenn. 1997), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 31 (1998), cert. denied, Henley v. Tennessee, 525 U.S. 830, 119 S. Ct. 82, 142 L. Ed. 2d 64, 1998 U.S. LEXIS 5030 (1998).

Denial of right to effective counsel, which is established through proof that counsel's performance was deficient and that deficiency prejudiced defense, was not found where witness refused to testify outside hearing of jury, where no explanation of that failure was provided to jury, and where jury was instructed to determine its verdict based only on evidence presented. Henley v. State, 960 S.W.2d 572, 1997 Tenn. LEXIS 615 (Tenn. 1997), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 31 (1998), cert. denied, Henley v. Tennessee, 525 U.S. 830, 119 S. Ct. 82, 142 L. Ed. 2d 64, 1998 U.S. LEXIS 5030 (1998).

When assessing existence of prejudice in claim of counsel's failure to present mitigating evidence in penalty phase of trial, courts must consider quality of proposed testimony rather than quantity of witnesses, and whether there was such strong evidence of aggravating factors that mitigating evidence would not have affected jury's verdict. Henley v. State, 960 S.W.2d 572, 1997 Tenn. LEXIS 615 (Tenn. 1997), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 31 (1998), cert. denied, Henley v. Tennessee, 525 U.S. 830, 119 S. Ct. 82, 142 L. Ed. 2d 64, 1998 U.S. LEXIS 5030 (1998).

When a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show that: (1) Counsel's performance was deficient; and (2) The deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial was unreliable or the proceedings fundamentally unfair. Bacon v. State, 967 S.W.2d 345, 1998 Tenn. Crim. App. LEXIS 484 (Tenn. Crim. App. 1998).

In cases where counsel did not convey a plea bargain offer to a defendant, and a petitioner seeks to reinstate (rather than withdraw) a plea offer, the petitioner must show that there is a reasonable probability that the petitioner would have accepted the plea had it been properly communicated to the petitioner; such a “reasonable probability” is defined as a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Garrison, 40 S.W.3d 426, 2000 Tenn. LEXIS 652 (Tenn. 2000).

Where defendant learned during jury deliberations that the defendant's counsel had failed to convey a plea bargain offer to the defendant, but defendant indicated that the defendant would not have accepted the offer had the defendant been aware of it, there was no reasonable probability that counsel's failure to convey the state's offer affected the outcome of the plea process. State v. Garrison, 40 S.W.3d 426, 2000 Tenn. LEXIS 652 (Tenn. 2000).

Where pre-trial counsel failed to accompany defendant while he gave statements to the police and trial counsel failed to offer the testimony of an expert pathologist, pre-trial counsel's representation fell below reasonable standards, however, defendant failed to prove he was prejudiced by the deficient pre-trial representation, and defendant failed to sufficiently articulate that claim in his post-conviction petition. Sepulveda v. State, 90 S.W.3d 633, 2002 Tenn. LEXIS 476 (Tenn. 2002).

Denial of inmate's petition for post-conviction relief was improper because post-conviction court erred in striking as hearsay the testimony of witnesses presented at the hearing and in failing to assess their credibility and the potential effect of their testimony on the outcome of inmate's trial; without credibility findings, supreme court was foreclosed from determining whether inmate received ineffective assistance of counsel at trial. Pylant v. State, 263 S.W.3d 854, 2008 Tenn. LEXIS 626 (Tenn. Sept. 25, 2008).

Defendant's convictions for possession with intent to sell or deliver over 0.5 grams of cocaine and simple possession of dihydrocodeinone were proper because, in regard to his argument on appeal that he received the ineffective assistance of counsel trial counsel, the trial court did not have an opportunity to make findings of fact since defendant did not include the claim in his motion for new trial. The appellate court therefore declined to consider the claim on direct appeal. State v. Johnson, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 18, 2010), dismissed, Johnson v. Lester, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 11627 (M.D. Tenn. Jan. 30, 2014), writ denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Nov. 4, 2014).

Defense counsel should not be very careful in accepting new cases that allow for little preparation before a scheduled trial date. The attorney is in the best position to know what must be done to adequately prepare for a trial and should be realistic about his or her ability to adequately investigate given a time constraint. Guartos v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 8, 2011), appeal dismissed, — S.W.3d —, 2011 Tenn. LEXIS 912 (Tenn. Sept. 23, 2011), dismissed, Guartos v. Colson, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 9049 (M.D. Tenn. Jan. 23, 2013).

Post-conviction court properly denied defendant's petition for relief because he failed to show deficient performance by trial counsel or that any alleged deficient performance prejudiced the outcome of his trial where both trial counsel and defendant testified that counsel advised defendant against testifying and that defendant made the decision not to testify based on that advice and defendant did not present any evidence that he was actually coerced into waiving his right to testify, rather he stated what his testimony at trial would have been and that testimony was solely about being stopped in a school zone, not about the presence of a block of cocaine in his truck. Araguz v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. Feb. 24, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 389 (Tenn. May 14, 2015).

Brief contained no argument or citation to authorities explaining why certain statements constituted ineffective assistance of counsel, and thus this issue was waived and defendant was not entitled to relief. State v. Newton, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Apr. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 576 (Tenn. July 17, 2015).

As to petitioner's claim that trial counsel failed to conduct adequate trial strategy, petitioner has failed to present sufficient argument in his appellate brief, and he did not state what legal strategies trial counsel should have pursued, and thus the issue was waived. Scales v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 224 (Tenn. Mar. 22, 2016).

Because the evidence did not preponderate otherwise, the appellate court accepted the findings that trial counsel met with petitioner numerous times and discussed discovery, the law, the facts, and potential trial strategies and went over the plea agreement with petitioner line by line. Because there was no evidence that trial counsel acted deficiently in this regard, there was no basis for petitioner's claim that his guilty plea was entered involuntarily due to the ineffective assistance of counsel. Flores v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. Dec. 2, 2015).

Although petitioner, who sought post-conviction relief, argued that her uncle was too inexperienced with criminal law and procedure to effectively represent her, petitioner did not point to any specific deficient performance by her uncle that prejudiced the outcome of her trial. Pursell v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 478 (Tenn. Crim. App. July 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 799 (Tenn. Oct. 19, 2016).

Defendant's petition for post-conviction relief was properly denied because counsel made a reasonable, strategic choice to avoid testing evidence that he rationally expected would produce results that were inculpatory to defendant, even though the testing of the victim's fingernail scrapings ultimately proved favorable to defendant; and defendant did not establish a violation of the principles of fundamental fairness under the Due Process Clause as, while genetic material from a male other than defendant found under the victim's fingernails had exculpatory value, it was not exonerating, and the evidence was not so exculpatory that it undermined the confidence in the verdict or raised a reasonable probability of a different result at trial. Waterford v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 772 (Tenn. Crim. App. Oct. 16, 2018).

Although petitioner took issue with trial counsel's failure to call alibi witnesses, petitioner failed to present any alibi witnesses at the post-conviction hearing. Petitioner failed to prove any deficiency or prejudice by clear and convincing evidence. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Court of criminal appeals could not find ineffective assistance of counsel based on the failure to file a written motion for a continuance when trial counsel's oral motion was heard and denied. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Although trial counsel admitted at the postconviction hearing that he did not fully understand the cell phone technology used at trial, he explained that the trial strategy was to explain petitioner was not in possession of his cell phone at the time of the victim's death and, therefore, any additional knowledge of cell phone GPS technology was irrelevant. Petitioner failed to show how this trial strategy resulted in prejudice. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

Post-conviction court did not find petitioner's testimony that he asked trial counsel to withdraw but that trial counsel never filed a motion to do so credible, and the court of criminal appeals declined to substitute its own inferences for those drawn by the post-conviction court. Moreover, petitioner did not provide any additional proof that he asked trial counsel to withdraw or that trial counsel's failure to do so resulted in prejudice. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 30, 2018).

In a case in which defendant was convicted of two counts of aggravated assault, defendant failed to establish what additional information deposing the victims would have revealed. Accordingly, defendant failed to establish his factual allegations regarding his ineffective assistance claim by clear and convincing evidence. State v. Ailey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. Aug. 19, 2019).

Because the court of criminal appeals found no single instance wherein trial counsel was deemed ineffective, there was no basis to conclude that any cumulative error resulted in an unfair trial. State v. Ailey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. Aug. 19, 2019).

Court of Criminal appeals agreed with the trial court's findings and conclusions regarding trial counsel's performance during the plea bargaining process. The record reflected that defendant made an informed decision to proceed to trial. State v. Ailey, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. Aug. 19, 2019).

Record did not preponderate against the post-conviction court findings that the advice given petitioner by his trial counsel regarding a plea agreement was well within the range of competence of competent attorneys and that trial counsel's performance was not deficient. Therefore, the court of criminal appeals agreed with the post-conviction court's conclusion, and petitioner was not entitled to post-conviction relief. Cooper v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 3, 2020).

14. — —Post-conviction Review.

Because the post-conviction court made specific factual findings that counsel and an inmate discussed and decided against a third appeal, and that that understanding was confirmed in a letter to the inmate, counsel's failure to file a waiver of appeal was not ineffective assistance of counsel to allow post-conviction relief with a delayed appeal. Arroyo v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 586 (Tenn. Crim. App. July 10, 2013), aff'd, 434 S.W.3d 555, 2014 Tenn. LEXIS 370 (Tenn. May 21, 2014).

In a case where defendant was convicted of 79 counts of various sex crimes involving his minor stepdaughter, defendant's petition for post-conviction relief alleging that counsel was ineffective was properly denied because the trial court properly considered and applied the catchall mitigating factor as the pre-sentence report and counsel's argument at the sentencing hearing provided that defendant was employed, had prior military service, and had no prior convictions; and because the information presented by defendant at the post-conviction hearing would not have affected his sentence as the victim testified to the torture she suffered due to the repeated rapes and years of abuse at the hands of defendant. Quevedo v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 947 (Tenn. Crim. App. Oct. 10, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 31 (Tenn. Jan. 15, 2015).

Inmate failed to prove by clear and convincing evidence that he was entitled to post-conviction relief (PCR) on a claim that trial counsel was ineffective by failing to call witnesses on the inmate's behalf at trial because counsel either spoke to the witnesses and they had nothing to add to the inmate's case or counsel was unable to locate them; the testimony of the tree witnesses who testified at the PCR hearing offered little, if any, weight to the inmate's defense. Woods v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Oct. 28, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 255 (Tenn. Mar. 16, 2015).

Inmate failed to prove by clear and convincing evidence that he was entitled to post-conviction relief on a claim that trial counsel failed to consult with him and investigate the case because trial counsel met with the inmate on at least seven occasions in court and at least two occasions in prison, and trial counsel completed full discovery, filed numerous pre-trial motions, and investigated the inmate's case, including searching for and interviewing witnesses. Woods v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Oct. 28, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 255 (Tenn. Mar. 16, 2015).

Inmate failed to prove by clear and convincing evidence that he was entitled to post-conviction relief on a claim that trial counsel's motion for a continuance filed one week before trial constituted deficient performance because the inmate changed his version of the facts one week before trial, and, as a result, trial counsel filed a motion for a continuance to investigate the case and change his trial strategy in light of the inmate's new version of the facts. Woods v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Oct. 28, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 255 (Tenn. Mar. 16, 2015).

Post-conviction counsel failed to ask trial counsel about the sentencing hearing and what relevant information counsel and petitioner discussed, and petitioner had the burden of proving his allegation by clear and convincing evidence; a mere allegation of deficient performance will not suffice, and petitioner failed to present any witness whom he would have presented at the sentencing hearing, and he was not entitled to relief. Green v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 991 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 166 (Tenn. Feb. 13, 2015).

Regarding trial counsel's failure to meet adequately with petitioner and failure to explain the State's discovery materials, the record showed that counsel's performance was not deficient and there was no prejudice to the outcome of the proceedings; petitioner reviewed the materials before trial and he met with counsel at court appearances. Green v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 991 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 166 (Tenn. Feb. 13, 2015).

Regarding trial counsel's failure to interview and present a first witness, failure to cross-examine a second witness, and failure to cross-examine a third witness about her previous statement, counsel's performance was not deficient and there was no prejudice, as petitioner never called the first witness, counsel made an informed decision not to cross-examine the second witness, and there was no evidence of a previous statement from the third witness or any potential deficiency; petitioner had the burden to prove his allegations, which he failed to do. Green v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 991 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 166 (Tenn. Feb. 13, 2015).

Informant's testimony did not create a manifest necessity for a mistrial, and although the question in the direct appeal was not an ineffective assistance of counsel claim, the conclusion in the direct appeal opinion regarding the mistrial issue was relevant to the question of whether petitioner was prejudiced by counsel's eliciting the testimony; the evidence did not preponderate against the post-conviction court's determination that petitioner failed to prove his claim by clear and convincing evidence. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Post-conviction court found that petitioner failed to offer any proof that he did not receive his presentence report, and in light of petitioner's failure to testify or offer other proof that he did not receive a copy of the report and that trial counsel did not review it with him, the record supported the post-conviction court's determination that ineffective assistance was not shown. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Post-conviction court found that counsel's post-trial investigation was adequate, and the evidence presented did not preponderate against that determination; petitioner did not present proof that counsel failed to discover, after the trial, the existence of anything that prevented an individual from serving as a fair juror or that her testimony would have resulted in his obtaining a new trial. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Post-conviction court found that the trial judge could not have been involved in prosecuting the current offenses, which occurred later, and petitioner failed to offer any evidence that the trial court was prejudiced against petitioner and that trial counsel could not be faulted for making a motion that would not have been granted; the evidence did not preponderate against the conclusion that petitioner failed to prove his claim by clear and convincing evidence. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Trial counsel could have assumed, given the trial court's ruling about the inadmissibility of evidence of petitioner's being on community corrections, that an issue would not arise, and the post-conviction court also found that a prospective juror's relation to the community corrections director was not something that reasonably could have been anticipated; the post-conviction court found that counsel did not provide ineffective assistance, and the evidence did not preponderate against this determination. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

By failing to offer any proof that trial counsel's pretrial communication with petitioner constituted deficient performance, petitioner failed to prove his ineffective assistance claim, and the evidence did not preponderate against this determination. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Post-conviction court found that petitioner failed to show prejudice from counsel's failure to raise an issue in writing and that he did not prove his ineffective assistance of counsel claim; the trial court considered the issue on its merits when it was raised orally and it denied relief, and the evidence did not preponderate against the post-conviction court's determination. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Only specific item petitioner identified was counsel's failure to require the State to prove that the substance petitioner allegedly sold was cocaine, but petitioner failed to offer proof that the substance was not cocaine, and the defense theory was that no sale took place; the post-conviction court found that petitioner failed to prove by clear and convincing evidence that counsel's investigation was inadequate, and the evidence did not preponderate against the court's determination. Sanders v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 153 (Tenn. Feb. 12, 2015).

Petitioner failed to show that a witness's testimony would have materially aided petitioner's defense or that counsel's decision not to call him was unreasonable, as the witness was not in the presence of petitioner at the time of the shootings, and the witness contradicted petitioner's testimony, and thus ineffective assistance was not shown, and the denial of post-conviction relief was affirmed. Carson v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1026 (Tenn. Crim. App. Nov. 14, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 167 (Tenn. Feb. 12, 2015).

Although petitioner failed to support his argument with citation to authority as required, the argument that counsel was ineffective for failing to request a bill of particulars was considered and rejected, as petitioner was apprised of the information he needed to make an informed decision about whether to accept or reject a plea agreement, and thus he was not prejudiced by counsel's failure to request a bill of particulars; the denial of post-conviction relief was affirmed. Carson v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1026 (Tenn. Crim. App. Nov. 14, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 167 (Tenn. Feb. 12, 2015).

Prisoner was not entitled to post-conviction relief on an ineffective assistance of counsel claim because trial counsel made an informed and deliberate tactical decision to exclude the victim's medical records to limit the jury's exposure to the medical diagnosis about the extent of the victim's injuries; the medical records contained information that was harmful to the prisoner's case and bolstered the victim's testimony. Baxter v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1078 (Tenn. Crim. App. Nov. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 229 (Tenn. Mar. 13, 2015).

Counsel reviewed the plea with petitioner privately, the trial court questioned petitioner and reviewed with him the rights he was waiving by entering a guilty plea, and he acknowledged that the trial court explained his rights and the plea agreement to him and that counsel explained the plea agreement to him; thus, the evidence supported the finding that petitioner entered his guilty plea knowingly and voluntarily, and he was not entitled to post-conviction relief. Clark v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1136 (Tenn. Crim. App. Dec. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 332 (Tenn. Apr. 13, 2015).

Parties agreed to a sentence as part of the plea agreement, so the mental evaluation was not done, and under these circumstances, petitioner had not shown that counsel's decision in this regard fell below a reasonable standard, nor was prejudice shown, and he was not entitled to post-conviction relief. Clark v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1136 (Tenn. Crim. App. Dec. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 332 (Tenn. Apr. 13, 2015).

Counsel timely filed a notice of appeal and litigated the issue of whether the record was sufficient for meaningful review of petitioner's sentence, and thus counsel's omission of the guilty plea transcript did not amount to a complete failure to subject the State's case to appellate scrutiny; petitioner failed to show prejudice, as no proof was presented that inclusion of the transcript would have resulted in a different sentence, and the denial of post-conviction relief was affirmed. Smith v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1145 (Tenn. Crim. App. Dec. 15, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 235 (Tenn. Mar. 12, 2015).

Defendant failed to prove by clear and convincing evidence that trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser-included offense of sale and delivery of a Schedule I controlled substance within 1,000 feet of a school; there was no evidence from which a reasonable jury could conclude that defendant merely facilitated the drug sales because he set the price for the drugs, acquired the drugs, accepted payment for the drugs, and delivered the drugs. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

There was no actual conflict of interest, given that the pleas of petitioner and co-defendant were negotiated separately, petitioner was aware that counsel represented co-defendant and signed a waiver, and counsel negotiated the guilty plea in one case because it was part and parcel to the guilty pleas in petitioner's other cases, which did not involve co-defendant; as petitioner could not show an actual conflict, he had to show both deficient performance and prejudice in order to prevail in his petition for post-conviction relief. Cunningham v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. Feb. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 409 (Tenn. May 15, 2015).

Court of criminal appeals erred in holding that a trial counsel's failure to request a jury instruction on a lesser-included offense is never prejudicial to a defendant found guilty of a greater offense; under certain facts and circumstances, a trial counsel's failure to request a jury instruction on a lesser-included offense could be prejudicial to a defendant and entitle him or her to post-conviction relief based on ineffective assistance of counsel. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Defendant failed to prove that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and therefore he was not entitled to post-conviction relief, where counsel testified he determined that it would not be in defendant's best interest to present defendant's potential witnesses, he reviewed the discovery materials with defendant, and he never received a plea offer from the State for 13 and a half years and defendant did not want to accept the State's offer of 15 years. Dancy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 170 (Tenn. Crim. App. Mar. 16, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 613 (Tenn. July 21, 2015).

Trial court found that counsel provided petitioner with a copy of an agreed order well before the plea acceptance hearing, and this finding effectively precluded a finding of deficient performance on counsel's part; furthermore, petitioner failed to allege how an informed decision would have affected the outcome of his case, and thus prejudice was not shown and he was not entitled to post-conviction relief. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. May 1, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 667 (Tenn. Aug. 14, 2015).

Defendant was not entitled to post-conviction relief on a claim that trial counsel failed to present a mental illness defense because counsel: (1) investigated such defense; (2) spoke with defendant and his family about his medical history and any possible child abuse; and (3) obtained two psychological evaluations that concluded defendant was competent to stand trial, able to appreciate the nature and wrongfulness of his actions, and able to form the requisite mens rea. Colbert v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 13, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 570 (Tenn. July 20, 2015).

Defendant was not entitled to post-conviction relief on a claim that trial counsel gave him deficient advice regarding plea negotiations and his guilty pleas were, as a result, not knowing and voluntary because in agreeing to be sentenced to life in prison and a consecutive four years, defendant avoided the possibility of the death sentence, which the State was pursuing armed with defendant's confession and physical evidence including the discovery of the victim's body in defendant's car. Colbert v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 13, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 570 (Tenn. July 20, 2015).

Petition for post-conviction relief alleging that defendant received ineffective assistance of counsel was properly dismissed because, although counsel's agreeing to the use of the stun belt without a hearing or any evidence that use of the stun belt served a legitimate necessity constituted deficient performance, defendant did not show by clear and convincing evidence that the use of the stun belt forced him to testify against his will as he voluntarily chose to testify in his own defense, that his demeanor while testifying was affected by the stun belt, that the stun belt impeded his ability to communicate with trial counsel, and that the stun belt impaired his ability to take an active interest in the presentation of his case. Mobley v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. May 21, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 842 (Tenn. Oct. 15, 2015).

Trial court properly dismissed petitioner's application for post-conviction relief because petitioner failed to prove by clear and convincing evidence that his counsel was ineffective for failing to file a motion to suppress his statement to the police; counsel testified that petitioner did not deny the confessions and provided no alibi, and therefore, counsel was required to pursue other avenues of defense. Rogers v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. May 27, 2015).

Inmate, convicted of first degree premeditated murder, was not entitled to post-conviction relief, claiming trial counsel was ineffective for advising him to testify at trial because, inter alia, the inmate stated at trial and at the post-conviction hearing that he made the decision to testify and the attorneys did not coerce him, and, given the overwhelming evidence of premeditation and the inmate's confessions, the inmate did not show he was prejudiced by his decision to testify at trial. Mann v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. June 12, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 663 (Tenn. Aug. 14, 2015).

Inmate did not show trial counsel was ineffective for not calling alibi witnesses because (1) one witness could provide no alibi, (2) counsel strategically decided another witness, who testified at a first trial, was not persuasive, and (3) a third witness's memory declined substantially after the first trial. Miller v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 490 (Tenn. Crim. App. June 24, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 892 (Tenn. Oct. 16, 2015).

Criminal court properly denied defendant's petition for post-conviction relief because he failed to establish pretrial counsel's alleged constitutional deficiency where, even after repeated questioning by post-conviction counsel and the State, he could not testify that he would have accepted a plea agreement if counsel had informed him of the potential 25-year sentence. Takashi v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 616 (Tenn. Crim. App. July 29, 2015), appeal denied, TAKASHI v. STATE, — S.W.3d —, 2015 Tenn. LEXIS 999 (Tenn. Nov. 24, 2015).

Post-conviction court did not err when it denied petitioner post-conviction relief because petitioner did not prove that counsel's representation of him was deficient since counsel discussed with petitioner on multiple occasions the consequences of his pleading guilty; counsel presented the State's two offers to him, and she discussed with him the consequences of his choosing each offer. Holder v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 784 (Tenn. Crim. App. Sept. 28, 2015).

Post-conviction relief was not warranted because there was no showing of ineffective assistance of counsel under the United States and Tennessee Constitutions since first counsel's representation was well within the range of competence for criminal attorneys, even though petitioner was dissatisfied with first counsel's tone and overall responsiveness relating to a plea offer. Thompson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 892 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 162 (Tenn. Feb. 18, 2016).

Post-conviction relief was not warranted because there was no showing of ineffective assistance of counsel under the United States and Tennessee Constitutions based on fourth counsel's failure to admit an audio recording of a police interview; this was a tactical decision because petitioner discussed his drug use and prior convictions during the recorded interview. Thompson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 892 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 162 (Tenn. Feb. 18, 2016).

Post-conviction relief was not warranted because there was no showing of ineffective assistance of counsel under the United States and Tennessee Constitutions; second counsel was not ineffective in relation to a motion to sever because this was an informed part of the defense strategy. Second counsel explained to petitioner that the trial court might or might not grant the motion; if the trial court denied the motion, then second counsel opined that the failure to sever would be grounds for a new trial in petitioner's direct appeal. Thompson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 892 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 162 (Tenn. Feb. 18, 2016).

Post-conviction relief was not warranted because there was no showing of ineffective assistance of counsel under the United States and Tennessee Constitutions; petitioner failed to show that he was prejudiced by third counsel's failure to file a motion to suppress a photographic lineup because there was no basis for the motion. Although the victim who selected petitioner from the photographic lineup said she was eighty percent certain that petitioner was the perpetrator of the offense, the victim later positively identified petitioner at the preliminary hearing and at trial; in addition, two of the aggravated robberies were recorded on video and depicted petitioner committing the crimes. Thompson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 892 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 162 (Tenn. Feb. 18, 2016).

Post-conviction relief was not warranted because there was no showing of ineffective assistance of counsel under the United States and Tennessee Constitutions; third counsel was not ineffective for failing to raise the issue of vindictiveness based on the State's decision to increase a plea offer. Petitioner rejected an initial 18-year offer, the State did not attempt to punish petitioner for exercising his constitutional rights, petitioner ultimately entered a guilty plea, and the State increased its offer after reviewing the video evidence capturing petitioner in the commission of the crimes. Thompson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 892 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 162 (Tenn. Feb. 18, 2016).

Defendant was not entitled to post-conviction relief because defendant failed to prove by clear and convincing evidence that defense counsel provided deficient performance at defendant's plea hearing. The record showed that (1) defendant was sufficiently informed of the nature of the charges against defendant and the consequences of making a guilty plea in open court; (2) the plea was free from improper promises or threats; and (3) defendant was not denied an opportunity to ask questions at the plea hearing. Mechado v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. Nov. 23, 2015).

Defendant's petition for post-conviction relief, claiming he received ineffective assistance of counsel, was properly denied because, inter alia, trial counsel met with defendant several times and discussed with him trial strategy and the theory of the case; and trial counsel was aware that defendant was somewhat “slow” and had a diagnosis that entitled him to disability benefits, but trial counsel was not aware that defendant had any serious mental diseases or defects that would have rendered him incompetent to stand trial, and defendant did not present evidence at the post-conviction hearing of what a mental health evaluation would have revealed and how it would have affected the outcome of his case. Parks v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1000 (Tenn. Crim. App. Dec. 15, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 338 (Tenn. May 5, 2016).

Defendant was not entitled to relief on defendant's claim of ineffective assistance of counsel, based upon trial counsel's failure to seek indigent funds and secure a DNA expert for the defense to analyze the evidence against defendant, because defendant failed to demonstrate what expert testimony could have been presented at trial or how defendant was prejudiced by the absence of that testimony. Black v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1041 (Tenn. Crim. App. Dec. 29, 2015).

Post-conviction relief was not warranted in a vehicular homicide case because there was no ineffective assistance of counsel under the United States and Tennessee Constitutions; objection at trial as to the admissibility of evidence relating to petitioner's statement and his blood test would have been meritless after a suppression motion was denied. Holden v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1045 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 290 (Tenn. Apr. 7, 2016).

Inmate did not show counsel's failure to introduce evidence of a victim's alleged consent to sex was ineffective because (1) the inmate did not present the evidence to a post-conviction court, and (2) consent was no defense to the inmate's statutory rape charge. Madison v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1046 (Tenn. Crim. App. Dec. 29, 2015).

Inmate did not show counsel's ineffective assistance for not conveying a plea offer because (1) counsel said the offer was conveyed, and (2) a post-conviction court's finding of counsel's credibility was not reviewed. Madison v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1046 (Tenn. Crim. App. Dec. 29, 2015).

Criminal defense counsel's failure to prepare an adequate appellate record was not ineffective assistance because no prejudice was shown, as likely appellate success had the omitted documents been included was not shown, as (1) the documents were not presented to a post-conviction court, and (2) the inmate's sentencing issues were argued on appeal. Madison v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1046 (Tenn. Crim. App. Dec. 29, 2015).

Inmate did not show counsel's mention of pending similar charges was ineffective assistance because (1) the charges were fairly raised, and (2) no prejudice was shown, as the jury knew of the underlying conduct and never knew if charges were filed. Madison v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1046 (Tenn. Crim. App. Dec. 29, 2015).

Inmate was not entitled to post-conviction relief for trial counsel's alleged ineffective assistance because, inter alia, counsel's decision to forego an offer of proof of a prosecution witness's criminal conviction was reasonable trial strategy that was not prejudicial, since the jury knew the witness had been convicted of a crime. Prendergast v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 29, 2015).

Inmate was not entitled to post-conviction relief for trial counsel's alleged ineffective assistance because, inter alia, (1) counsel's failure to object to a victim's testimony on the value of the victim's stolen property was not deficient, since the testimony was admissible, and (2) the admission of such testimony made the admission of documents reflecting expert valuations of the property non-prejudicial, since the documents were non-testimonial. Prendergast v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 29, 2015).

Petitioner did not receive ineffective assistance of counsel due to trial court's failure to adequately prepare for trial because trial counsel had been working on the case prior to his filing the agreed order substituting counsel; trial counsel was familiar with the facts of the case and had spoken with petitioner and heard many of the same allegations that petitioner expressed during the post-conviction hearing. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that trial counsel was deficient for failing to cross-examine witnesses about prior inconsistent statements or that he was prejudiced by that deficiency because the witnesses' prior statements were not included in the record for the direct appeal or for the appeal of the denial of post-conviction relief; thus, it could not be determined what the witnesses said in their prior statements or whether they were inconsistent with the witnesses' trial testimony. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove by clear and convincing evidence that trial counsel was deficient in failing to ask a witness a question because he presented no proof as to the issue at the post-conviction hearing; consequently, there was no way to determine what the line of inquiry would have yielded. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that trial counsel was ineffective for failing to have petitioner undergo psychological examination because there was no explanation as to how a psychological evaluation would have benefited trial counsel's strategy, which was to assert that another person was the killer; no psychological evaluation was presented at the post-conviction hearing. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to show that trial counsel was deficient for failing to ask a witness what date he helped the victim deliver furniture to petitioner because the testimony would not undermine the State's theory of the case since both the witness and the victim testified at trial that the furniture was meant to be partial payment of a drug debt and some of the debt was still outstanding. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that trial counsel was deficient for failing to object to photographs of a fetus because trial counsel did challenge introduction of the photographs. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner did not establish that the cumulative effect of trial counsel's “trial errors” resulted in prejudice because petitioner confessed to the crime, and his confession was introduced at trial. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient for failing to object to a Tennessee Bureau of Investigations Special Agent's comment or move for a mistrial because at the time the comment was made, trial counsel believed that petitioner would testify. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient for failing to object to the State's comment that the victim had her arm raised in self-defense because the evidence showed that the victim was on her knees with her arm in front of her face at the time of the shooting; an expert witness stated that the bullets' trajectory was consistent with the shooter standing above the victim when he fired his weapon. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient for failing to object to the prosecutor's comment that the victim was kneeling and begging for her life because that conclusion was a permissible inference from the proof presented at trial. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient for failing to object to the prosecutor's comments about petitioner's status as a drug dealer because no proof was presented about the comments during the post-conviction hearing, and petitioner did not ask trial counsel why he failed to object to them. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that he was prejudiced by trial counsel's failure to call a defense expert witness to testify about the viability of the fetus because expert witness's agreed that the victim's fetus was on the margin of viability and that there was no way to definitely determine whether it was viable. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to show that appellate counsel was deficient or that he was prejudiced by appellate counsel's omission because petitioner did not explain what appellate counsel should have argued on appeal. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Appellate counsel was not ineffective for failing to raise all the points on the issue of the sufficiency of the evidence because petitioner did not identify which “points” appellate counsel should have raised and argued on appeal. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient or that he was prejudiced by any alleged deficiency due to trial counsel's representation of a potential witness in another matter because there was no proof that trial counsel prevented the public defender's office from interviewing the witness; petitioner testified at the suppression hearing that he had no objection to trial counsel representing both himself and the witness. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to provide that he was prejudiced by counsel's failure to investigate and present mitigating evidence at the sentencing hearing because he did not present any evidence about the mitigating factors at the post-conviction hearing. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner waived for review in post-conviction proceedings his claim that his right to counsel was violated because he did not raise the issue on direct appeal; petitioner has not presented any evidence that his failure to present his claim was the result of state action. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that trial counsel was ill-prepared for the suppression hearing since he failed to contact or call a witness to testify because the record did not preponderate against the post-conviction court's finding that the witness's testimony would not have made a difference in the trial court's ruling that petitioner had voluntarily waived his Miranda rights and confessed to the crime. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient for failing to object to testimony that petitioner was a drug dealer because trial counsel's failure to object to the uncharged conduct appeared to have been a tactical decision, which the court of criminal appeals would not second-guess; there is no indication that the trial court's failure to give an instruction about the uncharged was the result of trial counsel's failure to request said instruction. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Counsel was not ineffective for failing to challenge the makeup of the venire and the jury because the record did not preponderate against the post-conviction court's finding that the State did not use its peremptory challenges to strike any African-American jurors; there was no evidence to support a prima facie case of purposeful discrimination that trial counsel should have challenged. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that he was prejudiced by trial counsel's failure to object to a Tennessee Bureau of Investigations Special Agent's testimony about the blood spatter because in addition to the agent's testimony, a doctor, who was accepted as an expert in forensic pathology, testified that the bullets travelled in a downward trajectory through the victim's brain. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that trial counsel was deficient or that he was prejudiced by trial counsel's drafting a motion for a new trial because petitioner failed to identify what issues should have been preserved, and he made no argument as to whether those issues would have been meritorious; therefore, it could not be determined what, if anything, trial counsel should have raised in the motion for new trial and whether those issues would have been meritorious on appeal. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that trial counsel was deficient for failing to object to a juror because there was no indication as to when trial counsel learned that the juror was related to petitioner. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

To the extent that petitioner raised a free-standing claim that his Sixth Amendment rights were violated on the ground that the venire did not contain a representative cross-section of the community, that claim had been waived for the purposes of post-conviction relief. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to demonstrate that trial counsel was deficient for failing to test the hair found in the victim's hand or that the alleged deficiency resulted in prejudice because petitioner did not present any test results pertaining to the hair at the post-conviction hearing; without knowing what the test results would have yielded, it could not be determined that petitioner was prejudiced by the failure to have the hair tested. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to establish that he suffered prejudice when trial counsel failed to have bullets found in the victim's bedroom tested for a match to those used in the shooting because testimony at trial established that petitioner told the police that he had gotten the bullets he used during the offense from the victim's house; petitioner did not present any evidence at the post-conviction hearing as to what test results of the bullets found in the victim's bedroom would have yielded. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Petitioner failed to prove that he was prejudiced by trial counsel's failure to establish that no blood was found in the car that petitioner used to travel to and from the crime scene because testimony that there was no blood in the car would not have changed the outcome at trial; petitioner's four written confessions, along with his statements to other witnesses, were introduced into evidence. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Trial counsel was not ineffective for failing to call a witness to testify because petitioner did not explain what he anticipated the witness's testimony would show; the witness did not testify at the post-conviction hearing, and thus, petitioner failed to prove that he was prejudiced by the failure to call the witness at trial. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Because petitioner failed to provide any citation to authority or any argument as to why trial counsel should have requested an instruction, petitioner has waived consideration of the issue on appeal. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1056 (Tenn. Crim. App. Dec. 30, 2015), dismissed, Johnson v. Westbrooks, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 165248 (M.D. Tenn. Nov. 30, 2016).

Defendant failed to show that trial counsel was ineffective for deciding not to obtain the services of a computer expert, without consulting defendant, because there was no factual basis for defendant's contention that counsel decided not to obtain an expert only after defendant informed counsel that defendant wanted to proceed to trial. Moreover, defendant could not establish prejudice because defendant failed to present any evidence of what a defense expert would have said if called to testify. Aguilar v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1055 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 222 (Tenn. Mar. 24, 2016).

Defendant failed to show that trial counsel was deficient in cross-examining the witnesses for the State of Tennessee by failing to question witnesses as to contradictions in their testimony and reports and as to defendant's theory that defendant's ex-spouse colluded with the police to frame defendant. Aguilar v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1055 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 222 (Tenn. Mar. 24, 2016).

Inmate did not show on post-conviction review that sentencing counsel was ineffective because (1) counsel testified about counsel's extensive investigation, (2) counsel successfully argued against consecutive sentences, (3) counsel properly advised the inmate about waiving the inmate's rights to seek a new trial and appeal, and (4) the inmate did not show the inmate was prejudiced by counsel's failure to object to applying an enhancement factor for failure to comply with community release conditions, since this did not invalidate the inmate's sentence. Lee v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2016).

Post-conviction relief was not warranted because it was not shown that trial counsel was ineffective under the United States and Tennessee Constitutions based on a failure to call a witness; petitioner testified that he did not know what the witness would have said if she had been allowed to testify at trial, and the witness did not testify at the post-conviction hearing. Foley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 20, 2016).

Post-conviction relief was not warranted because it was not shown that sentencing counsel was ineffective under the United States and Tennessee Constitutions; counsel adequately prepared for the sentencing hearing, and she adequately advised petitioner about the waiver of his right to seek a new trial and to appeal. Petitioner did not show how sentencing counsel's failure to object to the erroneous application of one enhancement factor at sentencing prejudiced him because two other sentencing factors were properly applied. Foley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 20, 2016).

Because petitioner did not establish deficient performance on the part of trial counsel, the prejudice prong of the test did not need to be addressed in this post-conviction case. Rye v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 293 (Tenn. Apr. 7, 2016).

Petitioner failed to prove he was prejudiced by trial counsel's failure to request that the witnesses be sequestered at the suppression hearing because portions of a witness's testimony did not show that the witness changed his testimony to match that of another witness; instead, the witness was testifying from his own memory and relating his recollection to the testimony of another witness. Walker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. Feb. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 496 (Tenn. June 23, 2016).

Inmate was not entitled to post-conviction relief based on a claim of ineffective assistance, as trial counsel testified filed a motion to suppress and did not believe that it would have benefitted the inmate's case if granted, counsel made efforts to interview a potential witness who was unresponsive, and counsel did not believe a visit to the crime scene would have been beneficial since he had photographs of it. Wells v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 123 (Tenn. Crim. App. Feb. 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 444 (Tenn. June 23, 2016), dismissed, Wells v. Perry, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 158322 (E.D. Tenn. Sept. 27, 2017).

Petition for post-conviction relief, alleging ineffective assistance of counsel, was properly denied because defendant failed to prove that trial counsel was deficient in either communicating with him or in his trial preparation as defendant testified that trial counsel met with him four or five times while he was incarcerated, and trial counsel testified that he discussed the State's evidence and explained the trial strategy to defendant on several occasions; and, although trial counsel's failure to conduct a hearing to determine whether defendant knowingly, voluntarily, and intelligently waived his right to testify constituted deficient performance, defendant failed to show that he was prejudiced by the failure to conduct the hearing. McCall v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 131 (Tenn. Crim. App. Feb. 19, 2016).

Post-conviction relief was not warranted in a case where an applicant entered guilty pleas because ineffective assistance of counsel was not shown; the applicant's testimony that he and defense counsel never reviewed the charges against him or the discovery materials and that they never spoke of matters other than the plea offer was rejected. Moreover, counsel's letter to the prosecutor, which the applicant signed, stated that counsel had spent hours reviewing the case with the applicant; in addition, counsel's notes contained multiple references to obtaining assistance from the applicant's family regarding the plea offer, and the applicant testified that his family and church members were actively involved in his defense. Booker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 170 (Tenn. Crim. App. Mar. 7, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 453 (Tenn. June 23, 2016).

Inmate seeking post-conviction relief did not prove by clear and convincing evidence that trial counsel's failure to sequester the inmate's daughter at trial, causing the daughter to be unable to testify, was ineffective assistance because the inmate did not show prejudice, since the inmate said the inmate did not know how the daughter would have testified and did not present the daughter's testimony at the post-conviction hearing. Lee v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2016).

Post-conviction court failed to make adequate findings of fact and conclusions of law regarding petitioner's Batson claim, but on direct appeal the transcript of voir dire was relied upon to conduct a substantive analysis of the claim; the dispute was whether the omission of challenge sheets constituted deficient performance that prejudiced petitioner, which was a question of law reviewed de novo. Sanders v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 2, 2016), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 585 (Tenn. Aug. 19, 2016).

Post-conviction court properly denied petitioner relief because he failed to present clear and convincing evidence to show that trial counsel was deficient; the post-conviction court accredited co-counsel's testimony regarding trial counsel's representation. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. Apr. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 603 (Tenn. Aug. 18, 2016).

Post-conviction court properly denied petitioner post-conviction relief because he failed to show that trial counsel was deficient for failing to raise an ex post facto claim; application of the amended version of the statute raised no ex post facto concerns because it was a procedural rule, and the change in the statute did not affect the nature of conduct for which petitioner was convicted, aggravate the crime, change the range of punishment, or alter the evidence needed to convict him. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

Post-conviction court properly denied petitioner post-conviction relief because he failed to show that trial counsel was deficient for failing to raise a due process claim; petitioner failed to show that application of the amended version of the statute violated his due process rights because the amendment clearly changed a procedural rule and did not implicate petitioner's right to notice, foreseeability, and fair warning with respect to his conduct that led to his criminal charges. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

Post-conviction court properly denied defendant's petition for relief because she failed to show that counsel was ineffective in failing to call the witness to the stand where defendant failed to produce the proposed witness at the evidentiary hearing. Hannah v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 670 (Tenn. Sept. 22, 2016).

Defendant failed to prove prejudice because, although defendant claimed that counsel was ineffective in failing to subpoena alibi witnesses at trial or to obtain the transcript of a preliminary hearing wherein defendant alleged that they testified, defendant failed to present the testimony of the witnesses or a transcript from the preliminary hearing at a post-conviction hearing. Neither the post-conviction court, nor the appellate court could speculate as to what the testimony may have been or whether it would have been favorable to defendant. Horstead v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 370 (Tenn. Crim. App. May 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 672 (Tenn. Sept. 22, 2016).

Post-conviction relief was not warranted in first degree felony murder case because there was no showing of ineffective assistance of counsel under the United States or Tennessee Constitutions, even though a recording of a 911 call was not introduced into evidence after the jury was told during opening statements that they would hear the call. The decision not to play the recording was an informed tactical decision based upon adequate preparation; it was not in the best interest of petitioner to play the recording based on the fact that he sounded unemotional. Long v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 389 (Tenn. Crim. App. May 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 553 (Tenn. Aug. 18, 2016).

Petition for post-conviction relief alleging ineffective assistance of counsel based on counsel misinforming defendant about the terms of his plea agreement with the State and counsel failing to ensure that the State honored that plea agreement was properly denied because defendant knowingly and voluntarily entered into open guilty pleas, with sentencing left to the trial court's discretion; there was nothing in the record that the State verbally promised him a fully-probated eight-year sentence in exchange for his cooperation with police and prosecutors; and the trial court informed defendant that sentencing would be determined solely by the trial court following a sentencing hearing, and defendant indicated his understanding. Mills v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 482 (Tenn. Crim. App. July 6, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 702 (Tenn. Sept. 22, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as defendant's trial counsel specifically testified that, while she advised defendant not to testify based on his criminal history, she did not coerce or prevent him from doing so; although defendant testified that he wanted to testify at his trial, he failed to offer any substantive evidence at the hearing of what his testimony would have been; defendant's own testimony was that counsel urged him to accept the plea agreement several times as the evidence against him was overwhelming, and nothing indicated that she ever advised him to reject the agreement; and counsel saw no basis for a motion for change of venue. Godwin v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. July 13, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 892 (Tenn. Nov. 22, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because he did not show that a motion to suppress his statement would have been successful had it been filed as the only evidence indicating that defendant's confession was coerced was his own claim that he was intoxicated at the time of his interrogation; and defendant admitted that he voluntarily gave his statement in an attempt to cooperate with law enforcement. Hirsch v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 515 (Tenn. Crim. App. July 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 869 (Tenn. Nov. 16, 2016).

Post-conviction court did not err in denying defendant's petition alleging ineffective assistance of counsel because counsel's failure to file a portion of the transcript from the sentencing hearing, detailing the trial court's conversation with defendant's family, did not affect the appellate court's review of defendant's sentence, given his extensive criminal history; counsel stated that the trial court's discussion with defendant's family was not part of the sentencing decision and, thus, counsel did not think it would be relevant on appeal; and defendant did not show that, had counsel filed the transcript, the appellate court's decision on appeal with regard to defendant's sentence would have been different. Johnson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. July 19, 2016).

Post-conviction court properly denied appellant's petition for post-conviction relief. Appellant, who was convicted of first degree murder, failed to meet his burden of showing that counsel was deficient for not pursuing an intoxication defense and not requesting a jury instruction on intoxication. Segura v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 548 (Tenn. Crim. App. July 26, 2016).

Post-conviction court properly denied defendant's request for relief based on ineffective assistance of counsel because counsel testified that she met with defendant two times at the jail and seven or eight times at court; she stated that she had reviewed all discovery with defendant as well as the results of both psychiatric evaluations and their possible impact; at the post-conviction hearing, defendant acknowledged that during the evaluations, he exhibited a knowledge and understanding of some of the specific evidence alleged against him, while also maintaining that counsel had not reviewed the evidence with him; and counsel testified that defendant did not want a trial on the charges and, thus, she worked toward a settlement. Drewry v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Sept. 1, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 972 (Tenn. Dec. 15, 2016).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel did not fail to raise an appellate issue regarding the existence of corroboration of accomplice testimony as the appellate court fully considered accomplice corroboration in the appeal of defendant's convictions as it dedicated a substantial portion of its opinion to an in-depth discussion of the corroborating evidence and concluded that sufficient corroboration existed; and defendant was not entitled to a presumption of prejudice as counsel timely filed a motion for a new trial and a notice of appeal, and defendant received an appeal, and counsel did not entirely fail to subject the State to the appellate process. Mangrum v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 765 (Tenn. Crim. App. Oct. 11, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 112 (Tenn. Feb. 16, 2017).

Defendant's petition for post-conviction relief was properly denied as defendant's trial counsel was not ineffective for failing to provide appropriate accommodations for defendant's hearing difficulties during his trial because nothing in the record preponderated against the trial court's finding that trial counsel's testimony was truthful with regards to defendant's ability to hear and communicate during his trial as trial counsel explained that defendant gave input throughout his trial, and she communicated effectively with him during the trial. Gibbs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 770 (Tenn. Crim. App. Oct. 13, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 106 (Tenn. Feb. 16, 2017).

Post-conviction court did not err in denying defendant's petition for post-conviction relief as defendant's trial counsel was not ineffective for failing to have a gunshot residue test conducted by the Tennessee Bureau of Investigation because counsel testified that his decision not to pursue testing was tactical, positing that arguing the lack of testing was easier than dealing with potentially negative test results; and defendant failed to show that counsel's decision hurt his defense as he did not present any gunshot residue test results at the post-conviction hearing, and as such he could not prove that counsel's tactical decision prejudiced him. Chalmers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 836 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 151 (Tenn. Feb. 28, 2017).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to adequately investigate possible defenses associated with defendant's mental health and intoxication because his claim of innocence rendered immaterial his mental health and intoxication, and his denial of involvement in the shooting prevented a defense of mitigating evidence in an effort to obtain a conviction for a lesser included offense; and counsel was not ineffective for failing to challenge the admission of the letter defendant wrote while in jail as he testified that he wrote the letter and admitted that he asked an individual to burn a witness's house; thus, a handwriting expert was unnecessary. Woodard v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Nov. 8, 2016).

Post-conviction court properly denied petitioner post-conviction relief because he failed to prove he received ineffective assistance of counsel when entering his guilty pleas; trial counsel testified that he discussed trial strategy with petitioner and explained the plea negotiations with petitioner, and at the guilty plea hearing, the trial court reviewed the details of the plea agreement with petitioner and advised him of his constitutional rights. Bartlett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Nov. 15, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because, although counsel was deficient in failing to request the special jury instruction for defendant's kidnapping charges, defendant did not receive ineffective assistance of counsel as he suffered no prejudice because the appellate court had already concluded that his especially aggravated kidnapping conviction was not incidental to his aggravated assault conviction; and a reasonable juror would not have found that defendant's convictions were incidental. Waller v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 890 (Tenn. Crim. App. Nov. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 136 (Tenn. Feb. 22, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel testified he was never told about a potential witness, and defendant failed to produce the witness at the hearing; defendant admitted that he confirmed his decision not to testify with the trial court and signed a waiver of his right, and he did not claim his decision would have been different with a more complete explanation of his right; and there was no evidence that defendant's alleged lack of understanding about the plea offer prejudiced the outcome of the proceedings as he testified that he would not have pled guilty to something he did not do and acknowledged that he believed he had a better chance at trial. Cunningham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 894 (Tenn. Crim. App. Nov. 30, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 147 (Tenn. Feb. 21, 2017).

Petition for post-conviction relief alleging ineffectiveness of counsel was properly denied because, although defendant was dissatisfied with counsel's advice regarding the 15-year settlement offer for the aggravated rape charge, he never stated that he would have pled guilty to the rape charge or otherwise controverted counsel's testimony that defendant was adamant about not pleading guilty to the aggravated rape charge; and defendant was not offered an effective 15-year sentence for the robbery, kidnapping, and rape charges as the prosecutor agreed to recommend the aggravated rape sentence be served concurrently to the other sentences, and he remained in jeopardy of consecutive sentencing for the robbery and kidnapping convictions. Hunt v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 937 (Tenn. Crim. App. Dec. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 224 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in her explanation of felony murder and criminal responsibility as counsel said she believed defendant understood those concepts; and there was no support in the record that defendant's lack of understanding could be attributed to counsel's failure to explain and review the concepts of felony murder and criminal responsibility with him. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for not investigating or presenting a theory of self-defense at trial because the post-conviction court concluded that counsel had conducted a thorough investigation of the case and all possible defenses; the post-conviction court accredited counsel's testimony that the only shots fired during the incident were from the vehicle; there was no evidence that the stray marks that co-defendant's investigator found in 2012 were related to the 2009 shooting or that the marks were present on the residence in 2009; and defendant told counsel that the only shots fired were fired from the vehicle with no return fire from anyone. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to support defendant's contention that his sentence of life with the possibility of parole was unconstitutional as defendant waived review of that issue; and defendant would have been unable to show that counsel's failure to make that challenge prejudiced his defense as defendant's sentence was not unconstitutional. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call a co-defendant as a witness at trial because counsel testified that she had no reason to believe that the co-defendant would testify on behalf of defendant after his attorney announced in court that the co-defendant refused to testify; and she did not believe his testimony would help the defense. Matthews v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Dec. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 232 (Tenn. Apr. 13, 2017).

Post-conviction court properly denied petitioner relief because trial counsel's deficient performance in preparing for trial and communicating with petitioner did not result in an unreliable outcome at trial; petitioner did not present any evidence that interviewing a codefendant or a follow-up investigation would result in the development of any exculpatory evidence or lead to a different result at trial. Baker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel did not pursue a claim that another person who had lived with the victim's mother for some period of time committed the offense because he had no evidence to support that allegation and felt the jury would not respond well to such a claim; and defendant was not deprived of a meaningful defense as counsel impeached the victim, who changed her testimony about one of the incidents during cross-examination, and defendant's wife testified that she was with defendant and the victim during the time the victim alleged the first incident occurred, and she refuted the victim's claims. Hickman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 247 (Tenn. Apr. 12, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel's performance was not deficient for failing to obtain an expert witness to testify on the defense of duress because defendant failed to produce an expert witness on duress to testify at the post-conviction hearing or to introduce evidence on what an expert witness might have presented and how it would have aided his defense. Mims v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 375 (Tenn. June 9, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective as he made no “promises” to the jury in his opening statement because counsel introduced the theory of physical impossibility during opening argument consistent with his trial strategy that the victim's size and physical state at the time of the murder was not consistent with the State's theory of how the murder occurred; and he did not promise the State's medical examiner would agree that defendant was innocent, but the medical examiner did state that the strangulation was accomplished with so much force that it had to be somebody who was extremely powerful to have done it. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to challenge the search warrants; in his preparation and strategy for the DNA evidence; for failing to pursue a defense based upon the theory that the glove tip with defendant's DNA on it was planted; for making assertions in opening argument that were later unsupported by the proof; for failing to use exculpatory evidence in the form of phone calls and a footprint found near the victim's body; for inadequately cross-examining defendant's son about his prior inconsistent statements; for inadequately defending the character of defendant; and for failing to impeach the victim as a hearsay declarant. Cannon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 21, 2017).

Although petitioner failed to present all evidence showing trial counsel's alleged ineffectiveness at the hearing, he was afforded the opportunity to present the evidence, and thus the ineffective assistance claim against trial counsel had been previously determined, precluding its consideration in the petition for post-conviction relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Post-conviction court properly found that subsequent counsel provided deficient performance by failing to question trial counsel about jury selection at the motion for a new trial hearing; trial counsel's testimony regarding his lack of an objection was critical to determining whether subsequent counsel's deficient performance at the motion for a new trial hearing resulted in prejudice, but petitioner did not present trial counsel and the court would not speculate regarding trial counsel's reasons for not objecting during jury selection, and petitioner was not entitled to relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

In an aggravated rape case, defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to call witnesses to testify that the victim and defendant had a relationship prior to the attack as the victim consistently testified that she did not know defendant; without viewing a photo of defendant, the victim worked with a sketch artist to construct an image of her attacker, which resembled defendant; he confessed to choking and raping the victim; the victim's statement to police and her testimony at the preliminary hearing and trial were congruous with defendant's confession; defendant's fingerprints were found on the victim's kitchen window; and his semen was found in her underwear. Bledsoe v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. Apr. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 485 (Tenn. Aug. 18, 2017).

Defendant's petition for post-conviction relief, alleging that he was denied his right to the effective assistance of counsel as counsel did not advise him to testify at trial, was properly denied because defendant acknowledged that he had the right to testify, that it was his decision whether to testify, and that trial counsel discussed with him the advantages and disadvantages of testifying; and the post-conviction court found that defendant chose not to testify, followed the advice of his family and trial counsel, and never indicated that he wanted to testify. Oliver v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 434 (Tenn. July 20, 2017).

Defendant's petition for post-conviction relief was properly denied because defendant was not denied effective assistance of counsel when trial counsel recalled defendant's sister as a defense witness, after she testified in the State's case-in-chief, as counsel testified that he recalled her to aid the theory of defendant's diminished capacity at the time he killed the victim; once the State attempted to introduce the new prior bad act evidence, trial counsel immediately and strenuously objected; and had trial counsel known prior to recalling the sister as a defense witness that the newly discovered prior bad act evidence was going to be offered and admitted, it was highly unlikely that she would have been recalled as a defense witness. Buford v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 9, 2017).

Defendant's petition for post-conviction relief was properly denied because defendant failed to demonstrate ineffective assistance of counsel based on trial counsel's failure to prepare and present a viable defense as the record showed that trial counsel, assisted by two other lawyers, a law student, and an investigator, mounted a vigorous defense. Buford v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 9, 2017).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective in allowing defense's expert witness to testify at trial that defendant was competent to stand trial while simultaneously allowing him to testify as to defendant's diminished capacity at the time of the offense as the post-conviction court determined that the jury would not have been confused by the expert witness's testimony. Buford v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 9, 2017).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective because the evidence did not preponderate against the finding that counsel was the more credible witness; counsel testified at the hearing that he discussed the plea offer contained in the letter from the State's counsel with defendant prior to trial; counsel explained the possibility of an effective life sentence to defendant and discussed the damaging potential of the handwritten letter purportedly from defendant to the victim with defendant in preparation for trial; and the post-conviction court found the testimony of defendant's mother that counsel did not discuss the contents of the letter with defendant incredible and unbelievable. Hagerman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 580 (Tenn. Sept. 20, 2017).

Defendant's petition for post-conviction relief, arguing that his guilty plea was involuntary and unknowing, was properly denied because trial counsel was not ineffective as he testified that he advised defendant of his rights, including the right to a second jury trial; however, defendant told trial counsel that he wanted to accept the plea agreement, and counsel stated that defendant was eager to sign the plea agreement. Hodges v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. May 16, 2017).

After reviewing the briefs from the direct appeal, the evidence did not preponderate against the post-conviction court's finding that counsel fully briefed defendant's argument related to the probable cause requirement in the wiretapping statute, and that she addressed the subsections of that statute in her brief that she felt most strongly aided her argument that the wiretaps were unlawful; and, while the appellate court's decision limited defendant's argument, defendant did not show that counsel was ineffective in that regard as she made a strategic decision to focus her argument in the reply brief, which the appellate court would not second guess. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

In a case in which defendant pled guilty to multiple drug and money laundering crimes in three separate counties, defendant's petition for post-conviction relief, claiming that he received ineffective assistance of counsel, was properly denied as defendant's plea was entered knowingly and voluntarily because counsel and defendant weighed the risk of taking his case to trial, where he faced a lengthy sentence approaching 100 years but retained all his rights of appeal, versus entering a guilty plea for a sentence of 40 years but reduced rights of appeal; and defendant affirmed that he was asked at the guilty plea hearing whether he understood his right to trial and that he was giving up that right, which he stated he did. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in preparing the certified questions of law and in educating defendant on the applicable law because he was advised of the procedural risks of the certified questions; counsel advised him that she could not guarantee that his questions would be deemed dispositive by the appellate court; counsel did not guarantee him success on appeal; and counsel advised defendant that, although not all questions would be deemed dispositive, she chose to include them as the appellate court sometimes overlooked whether a question was dispositive and reviewed it, but counsel did not guarantee that the appellate court would address the non-dispositive questions. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 675 (Tenn. Oct. 4, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in preparing the certified questions of law and in educating defendant on the applicable law because he was advised of the procedural risks of the certified questions; counsel advised him that she could not guarantee that his questions would be deemed dispositive by the appellate court; counsel did not guarantee him success on appeal; and counsel advised defendant that, although not all questions would be deemed dispositive, she chose to include them as the appellate court sometimes overlooked whether a question was dispositive and reviewed it, but counsel did not guarantee that the appellate court would address the non-dispositive questions. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

After reviewing the briefs from the direct appeal, the evidence did not preponderate against the post-conviction court's finding that counsel fully briefed defendant's argument related to the probable cause requirement in the wiretapping statute, and that she addressed the subsections of that statute in her brief that she felt most strongly aided her argument that the wiretaps were unlawful; and, while the appellate court's decision limited defendant's argument, defendant did not show that counsel was ineffective in that regard as she made a strategic decision to focus her argument in the reply brief, which the appellate court would not second guess. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

In a case in which defendant pled guilty to multiple drug and money laundering crimes in three separate counties, defendant's petition for post-conviction relief, claiming that he received ineffective assistance of counsel, was properly denied as defendant's plea was entered knowingly and voluntarily because counsel and defendant weighed the risk of taking his case to trial, where he faced a lengthy sentence approaching 100 years but retained all his rights of appeal, versus entering a guilty plea for a sentence of 40 years but reduced rights of appeal; and defendant affirmed that he was asked at the guilty plea hearing whether he understood his right to trial and that he was giving up that right, which he stated he did. King v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 671 (Tenn. Oct. 4, 2017).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not deficient for failing to adequately advise defendant about sentencing ranges or his classification as a Range I offender; for failing to advise defendant to proceed to trial as the prosecutor stated that the State would be able to call witnesses that would identify defendant as the man who held the victim at gunpoint during the robbery preceding the victim's murder, and that defendant confessed to murdering the victim; and for failing to object to defendant's plea on the basis that he was a minor as he was properly before the criminal court as an adult. Cunningham v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 611 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 658 (Tenn. Oct. 5, 2017).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call witnesses because counsel met with defendant, developed an appropriate trial strategy, and investigated the case adequately; defendant offered alibi witnesses to counsel, but those witnesses were not with defendant at the time of the offense and seemed skeptical about whether he had committed the shooting; counsel used sound legal discretion when choosing not to present those witnesses; and defendant did not present those witnesses at his post-conviction hearing, and one of them, his sister, declined to testify at the post-conviction hearing. Hollins v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 612 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 837 (Tenn. Nov. 21, 2017).

Post-conviction court properly dismissed petitioner's application for post-conviction relief because petitioner failed to prove that trial counsel's failure to request jury instructions on duress and necessity was below an objective standard of reasonableness under prevailing professional norms. Hendricks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. July 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 810 (Tenn. Nov. 16, 2017).

Defendant's petition for post-conviction relief was properly denied because, although appellate counsel's performance was deficient as she filed a brief asserting insufficiency of the evidence based on law no longer in effect, defendant failed to show that he was prejudiced by appellate counsel's deficient performance as he did not show that the outcome would have been different even if appellate counsel filed a reply brief arguing the new sufficiency of the evidence standard; defendant further failed to assert what appealable issues were present that appellate counsel failed to pursue; and appellate counsel's deficiencies did not rise to the level of structural defect constituting a complete denial of counsel. Byrd v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 749 (Tenn. Crim. App. Aug. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 823 (Tenn. Nov. 16, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel did not fail to explain the case and the witnesses against him because trial counsel testified at the hearing that she gave defendant access to his discovery materials through her website and that defendant was able to communicate with her through the website by sending her messages; trial counsel did not recall defendant's giving her the name of any alibi witnesses; defendant did not produce the alibi witness that he claimed trial counsel was ineffective for failing to present to the trial court; and trial counsel did not promise defendant special parole. Tucker v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Aug. 31, 2017).

Petitioner was properly denied post-conviction relief because he failed to establish that trial counsel was deficient in failing to file a motion to recuse the trial judge since he submitted no evidence at the post-conviction hearing that there was a valid reason to request recusal; trial counsel, knowing that a motion to recuse a judge would be unsuccessful, properly weighed the benefits of whether a motion requesting recusal would be necessary and reasonably concluded that it was not. Armstrong v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Sept. 27, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 31 (Tenn. Jan. 17, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of appellate counsel was properly denied because appellate counsel testified that he made a strategic decision not to raise the suppression issue after considering the facts and the law as he did not believe that the appellate court would find that the issue had merit; and defendant did not show that the issue had any merit as the only evidence that defendant did not initiate contact with law enforcement was his testimony at the post-conviction hearing, which would not have been available to appellate counsel; and he agreed that the lieutenant read the Miranda warnings to him and that he waived his rights before making his statement. Rice v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 910 (Tenn. Crim. App. Oct. 12, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 82 (Tenn. Feb. 15, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel was properly denied because trial counsel was not ineffective (1) in failing to request a jury instruction on corroboration of accomplice testimony as the witness was not an accomplice because the witness testified that defendant twice approached him and discussed robbing the victim, and both times he refused to help; and defendant's own statement did not implicate the witness in planning, committing, or sharing in the proceeds from the robbery; and (2) in failing to move for a judgment of acquittal on the basis of inconsistent verdicts as the proof supported defendant's convictions for facilitation and felony murder. Rice v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 910 (Tenn. Crim. App. Oct. 12, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 82 (Tenn. Feb. 15, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because defendant did not present as a witness at the post-conviction hearing the individual or individuals who he claimed should have been called to testify at trial; counsel's decision not to introduce at trial the victim's interview or have the victim's examiner testify were strategic decisions designed to shield the jury from further exposure to the victim's statements about his sexual abuse by defendant; and counsel's strategy also prevented the jury from hearing evidence that defendant had sexually abused other children. Lewis v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Oct. 23, 2017).

Defendant's petition for post-conviction relief was properly denied because his claims about the involuntariness of his guilty plea were belied by the transcript of the plea hearing, in which he was advised of his constitutional rights and his sentencing range; he affirmed that he was clear-minded and that it was his desire to plead guilty; and he failed to prove that he received ineffective assistance of counsel that would have otherwise rendered his guilty plea involuntary and unintelligent. Holley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 949 (Tenn. Crim. App. Nov. 9, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 83 (Tenn. Feb. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because the post-conviction court found that there was no basis to suppress the drugs; and, even if trial counsel's filing of the motion to suppress had not been circumvented by defendant's entry of his guilty plea, he did not show that he was prejudiced by the failure to file the motion. Holley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 949 (Tenn. Crim. App. Nov. 9, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 83 (Tenn. Feb. 14, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because defense counsel was prepared for a trial; counsel investigated the crime scene, reviewed discovery, and summarized witness statements; counsel said that he worked about 150 hours on defendant's case and that he provided defendant with the discovery and the ballistic evidence; counsel met numerous times with defendant to review the evidence and to discuss the State's plea offer; and he said he answered defendant's questions regarding the plea offer, that he subpoenaed witnesses for the sentencing hearing, and that he was prepared for the sentencing hearing. Smith v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 959 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 180 (Tenn. Mar. 16, 2018).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because, given the fact that possession of the drugs could be attributed to the leaseholder, the decision not to assert standing to contest the search was a reasonable strategic decision, and the motion to suppress was unlikely to succeed. McCathern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. Nov. 14, 2017), review denied and ordered not published, McCathern v. State, — S.W.3d —, 2018 Tenn. LEXIS 139 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because, although counsel's advice to plead guilty constituted deficient performance, as by pleading guilty to aggravated burglary, defendant acknowledged that he intended to possess cocaine with the intent to sell or deliver it, and that he actually possessed the cocaine, defendant was not prejudiced by counsel's deficient performance as he did not show a reasonable probability that the jury would have entertained reasonable doubt regarding the drug charge had he not acknowledged guilt of the aggravated burglary charge because he entered an apartment that appeared to function solely as a cocaine dispensary with co-defendant, who had cocaine, a gun, and two sets of scales. McCathern v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. Nov. 14, 2017), review denied and ordered not published, McCathern v. State, — S.W.3d —, 2018 Tenn. LEXIS 139 (Tenn. Mar. 14, 2018).

Defendant was not entitled to post-conviction relief, when defendant alleged that defendant's trial counsel provided ineffective assistance of counsel, because (1) trial counsel obtained an automobile accident reconstruction expert who presented evidence favorable to defendant; and (2) trial counsel's advice to defendant not to testify was a reasonable strategic decision, given defendant's criminal history and statement admitting fault for the vehicular accident to an investigating officer. Krasovic v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 964 (Tenn. Crim. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 171 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective because defendant did not establish that he was prejudiced by lead counsel's failure to timely inspect defendant's car as there was no exculpatory evidence to be preserved on defendant's car; and, despite the fact that the car had been stored outside, defendant's expert accident reconstructionist was still able to opine that the physical evidence was consistent with defendant's explanation of the incident in which the victim was run over by defendant's car and to testify that he did not believe that the officers' opinions that the victim was struck in one direction could be proven by the evidence. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective because defendant failed to show that he was prejudiced by lead counsel's handling of the McDaniel hearing request as the testimony of the doctor who performed the victim's autopsy about the direction defendant's car was traveling when it struck the victim, and specifically her testimony about the injuries left by the car's heat shield, was not outside her area of expertise; there was no error in the doctor's opinion that the manner of death was homicide; and lead counsel was aware of the doctor's opinions regarding the manner of death and direction of travel of defendant's car, and he had extensively prepared for the doctor's testimony. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective for failing to object and properly cross-examine the doctor who performed the victim's autopsy because lead counsel's attempt to impeach the doctor, although ill-advised given that lead counsel mistakenly stated that the doctor said the car backed over the victim, was not deficient because lead and co-counsel believed that the doctor had confirmed defendant's version of the incident at a prior hearing and had weighed the possible benefits of impeaching the doctor with a prior statement that confirmed defendant's story against the possible risks, including the doctor's denial that she had said that defendant's car backed over the victim. Cornwell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 1, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 214 (Tenn. Apr. 18, 2018).

Trial counsel's actions met an objective standard of reasonableness and petitioner failed to establish that he received ineffective assistance of counsel or that he was prejudiced by trial counsel's actions. Although petitioner claimed in his petition for post-conviction relief that he would not have pleaded guilty, none of the deficiencies in representation alleged by petitioner created a reasonable probability that petitioner would not have pled guilty. Cline v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 999 (Tenn. Crim. App. Dec. 4, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 88 (Tenn. Feb. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because, although defendant contended that witnesses critical to his defense were not interviewed or called to testify and that counsel's deficient performance unfairly prejudiced his defense, defendant failed to specifically identify or to present any witness whom he claimed should have been interviewed or called to testify; the burden was on defendant to present more than speculation that a material witness might have existed or that a witness's testimony could have affected the outcome of the trial; and, by failing to present such a witness at the post-conviction hearing, defendant failed to establish prejudice under Strickland. Steed v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1043 (Tenn. Crim. App. Dec. 19, 2017).

Post-conviction court properly denied petitioner post-conviction relief because appellate counsel was not ineffective for failing to raise an issue of the violation of petitioner's constitutional rights due to admission of a video recording; petitioner cited no legal authorities that supported suppression or exclusion of the video recording, and he failed to identify any pertinent information counsel lacked due to counsel's failure to meet with him before filing the appellate brief. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel was not ineffective for failing to file a motion to suppress the video recording of the drug transaction; the evidence supported the determinations that petitioner failed to present evidence to support suppression and that counsel decided as a matter of strategy not to file the motion to suppress and to instead address the issue by objecting to the evidence as not showing an exchange of drugs. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to obtain the preliminary hearing transcript and to impeach the victim with her prior statement and testimony because the recording of the hearing was not transcribed as it was inaudible; counsel aggressively cross-examined the victim at the trial using counsel's notes from the preliminary hearing; the discovery material was available to defendant and his counsel, and defendant could have alerted his counsel to genuine conflicts; counsel's examination of witnesses and his objections showed his preparation and purpose; and the victim identified defendant as the person who held her against her will in a vehicle and who shot her. Overton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 4, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel did not fail to prepare adequately for trial the evidence supported the post-conviction court's decision to credit counsel's testimony regarding his preparations for the trial, including his meetings with petitioner and their review of the evidence. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel was not ineffective for improperly advising petitioner; petitioner did not testify at the hearing regarding the substance of the testimony he would have given but for counsel's alleged erroneous advice. McNeal v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 5, 2018), appeal denied, McNeal v. State, — S.W.3d —, 2018 Tenn. LEXIS 292 (Tenn. May 16, 2018).

Trial court properly denied petitioner post-conviction relief because he failed to offer any proof of ineffective assistance of trial counsel; petitioner failed to present a witness that could have offered testimony exonerating him, failed to present an expert to refute the State's medical proof, and failed to present any proof in support of his claim that he was not competent to stand trial. Valentine v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 10, 2018).

Court of criminal appeals concluded that trial counsel was effective in his representation of appellant and that appellant knowingly and voluntarily entered his guilty plea in exchange for his immediate release. Accordingly, the post-conviction court properly denied appellant's petition for post-conviction relief. Valentino v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 11, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 162 (Tenn. Mar. 14, 2018).

Defendant's petition for post-conviction relief, alleging ineffective assistance of counsel, was properly denied because trial counsel recounted an adequate investigation of the facts, adequate communication with defendant, and adequate negotiations with the State; defendant failed to prove that, but for any error by trial counsel, he would not have pleaded guilty and would have insisted on going to trial as defendant stated that he was terrified of a trial; and defendant did not show that his pleas were entered unknowingly or involuntarily as the transcript of the plea colloquy showed that he indicated that he understood each right that he was giving up and that he voluntarily waived each right. Henry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 279 (Tenn. May 17, 2018).

Post-conviction court did not err in denying appellant's petition for post-conviction relief. Although appellant contended that his guilty pleas were not knowingly and voluntarily entered because his trial counsel was ineffective in explaining the possible sentencing outcomes to him, the post-conviction court accredited trial counsel's testimony that she explained to appellant that his sentences would be up to the trial court and that his chances of getting a six-year sentence were slim to none. Lancaster v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 2, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 370 (Tenn. June 8, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish his factual allegation that members of the jury spoke and mingled with the State's witnesses during his trial; trial counsel testified that he never witnessed any mingling between the State's witnesses and the juror and was never informed of such by petitioner, and petitioner did not call a member of the jury or the State's witnesses he claimed were talking to the jury members. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish that trial counsel was ineffective for failing to strike a juror who was allegedly the victim of an assault; petitioner did not present any proof concerning the juror's assault case and/or how that experience could have influenced the juror's verdict, and thus, even if counsel was deficient in failing to make a challenge for cause, petitioner failed to establish prejudice. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to establish that trial counsel was ineffective for failing to file a motion to suppress the photographic line-up; there is no Sixth Amendment right to have defense counsel present when the State provides a pretrial photographic display to a witness. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to offer any proof in support of his ineffective assistance of counsel claims; petitioner failed to call potential witnesses despite his claim that trial counsel should have called them, he failed to substantiate his claim that counsel was ineffective for failing to hire an investigator to do background checks on the State's witnesses, and he offered no proof that a sergeant perjured himself. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to carry his burden of proof establishing that trial counsel was deficient by failing to meet with him while he was in jail and by failing to provide him with discovery; petitioner was out on bond prior to and during trial, and trial counsel testified that he was provided with open file discovery from the State, made a copy of the discovery for petitioner, and discussed the discovery with petitioner. Anderson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 15, 2018).

It was proper to deny petitioner post-conviction relief because petitioner's guilty plea was not involuntarily and unknowingly entered on the ground that trial counsel was ineffective; trial counsel did not misinform petitioner about the amount of time he would actually have to serve before he could be released from prison because petitioner was properly informed by trial counsel and the trial court that he could receive sentencing credits to reduce his sentence by fifteen percent. Shade v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 327 (Tenn. June 6, 2018).

It was proper to deny petitioner post-conviction relief because petitioner's guilty plea was not involuntarily and unknowingly entered on the ground that trial counsel was ineffective; trial counsel testified that he met with petitioner several times and spoke with the detective, the prosecutor, and the victim's attorney and that he discussed the State's discovery response with petitioner. Shade v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 154 (Tenn. Crim. App. Feb. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 327 (Tenn. June 6, 2018).

Defendant's petition for post-conviction relief was properly denied as he failed to establish that he was prejudiced by trial counsel's not calling a mental health expert at trial because defendant did not present an expert at the post-conviction hearing to testify regarding his mental state at the time of the offenses; furthermore, the record belied defendant's claim that counsel failed to even explore the possibility of calling such an expert as counsel testified that defendant was examined by an expert for the State and her own expert, and both concluded that defendant was competent at the time of the offenses and to stand trial; and counsel questioned witnesses about defendant's performance in school and his learning disabilities. Craft v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 414 (Tenn. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to file a motion to sever his case from his codefendant as both defendant and codefendant maintained that they were forced to commit the robbery by a gang leader; codefendant's statement and testimony backed-up defendant's claim of duress; and the identity of the actual shooter was of no consequence given that the State proceeded at trial on a theory of criminal responsibility; further, defendant's main argument that the admission of codefendant's statement at trial violated his right to confrontation was belied by the record as codefendant testified at trial and was cross-examined by trial counsel. Craft v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 414 (Tenn. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to adequately prepare him for cross-examination because counsel testified that he and his investigator spoke to defendant about testifying at trial and explained to him what they were needing and what his primary defense was going to be; and defendant failed to establish his factual allegations with respect to that issue by clear and convincing evidence as defendant did not testify at the postconviction hearing. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 466 (Tenn. July 19, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to seek a mental evaluation or to present an expert witness to support his duress defense as there was no evidence presented at the post-conviction hearing that defendant suffered from any mental condition that would have warranted a mental evaluation; defendant failed to present the testimony of an expert at the evidentiary hearing to explain what, if any, mental health evidence trial counsel should have advanced at trial; and defendant presented no psychological expert or any other evidence to establish how such an expert would have bolstered defendant's duress defense. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 466 (Tenn. July 19, 2018).

Defendant failed to show that defense counsel provided ineffective assistance in failing to conduct a reasonable investigation, to have defendant declared indigent, to hire an investigator, to retain experts, to object to evidence, and to properly cross-examine witnesses. Although counsel was deficient in failing to interview one potential witness, to review the recordings of defendant's telephone conversations from jail, and to object to the prosecutor's opening statements, there was no prejudice given the strong evidence against defendant. Braswell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. Apr. 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 595 (Tenn. Sept. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as plea counsel was not ineffective because, at the post-conviction hearing, plea counsel testified that he met with defendant multiple times, reviewed all of the discovery materials, and successfully bargained with the State for a lower sentence for defendant. Cobb v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 12, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 441 (Tenn. July 18, 2018).

Trial counsel was deficient in failing to discover a codefendant's potentially exculpatory statement, but the inmate failed to prove prejudice given trial counsel's determination that codefendant would not have been received well by the jury, who might have associated codefendant with a criminal gang. Patton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Apr. 13, 2018).

While first pretrial counsel's performance was deficient in that no evidence showed that counsel performed any type of investigation or met with the inmate to discuss the charges, facts, or possible defenses, the inmate was not entitled to postconviction relief, because the inmate failed to show prejudice, as he failed to show how the lack of investigation prejudiced the defense. Patton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Apr. 13, 2018).

Defendant was not entitled to post-conviction relief on defendant's claim of ineffective assistance of counsel because defendant did not establish that counsel's performance was deficient as to a plea offer that was made to defendant before trial and that defendant did not accept. Counsel and the prosecutor discussed the plea offer with defendant that would no longer be available if defendant did not accept the offer that day, the trial court engaged in a colloquy with defendant about the offer, and defendant declined the offer. Crenshaw v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. Apr. 13, 2018).

Defendant's petition for post-conviction relief was properly denied as defendant did not receive ineffective assistance of counsel during voir dire because, while it was unclear whether lead trial counsel and co-counsel did not object to the prosecutor's questioning during voir dire as a part of trial strategy, it was apparent that co-counsel had the opportunity to address the prosecutor's voir dire in opening statements, and co-counsel used that opportunity to argue to the jury that “the perpetrator” had control over the crime scene, not “the defendant;” and defendant did not present evidence that the jury empaneled in his trial was not impartial. Stanhope v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 19, 2018).

Defendant's petition for post-conviction relief was properly denied as defendant did not receive ineffective assistance of counsel because the post-conviction court credited lead trial counsel's testimony that he would have discussed with a client whether to concede to the lesser-included offense of second degree murder during closing argument; and defendant did not establish that lead trial counsel's performance was deficient for failing to consult with defendant regarding the closing argument. Stanhope v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 19, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in failing to communicate with defendant because counsel stated that he and defendant did not have any trouble communicating and that defendant cooperated with him; and defendant, who called trial counsel to testify at the hearing, did not question counsel about his trial or appellate strategy, any plea offers, or counsel's communications with defendant about potential punishments under the Drug-Free School Zone Act. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

Defendant's petition for post-conviction relief was properly denied as he was not entitled to relief based on counsel's alleged ineffective assistance in failing to argue the preindictment delay issue competently on direct appeal because he failed to show that the State caused the delay to gain a tactical advantage or that he was prejudiced by the delay; and he failed to present any proof of prejudice at the post-conviction evidentiary hearing. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

Defendant's petition for post-conviction relief was properly denied because he failed to show that he received ineffective assistance of counsel based on counsel's failure to raise a speedy trial violation on direct appeal of his conviction as he did not provide any reason for the delay at the post-conviction evidentiary hearing; and he failed to present any proof at the hearing to show he was prejudiced by the delay because he offered no explanation as to how two witnesses who could not be located would have helped his case and did not present the witnesses at the evidentiary hearing, and the appellate court could not speculate on what benefit those witnesses might have offered to defendant's case. Grimes v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. Apr. 19, 2018), vacated, — S.W.3d —, 2018 Tenn. LEXIS 398 (Tenn. Aug. 10, 2018).

Defendant was not entitled to post-conviction relief when defendant alleged ineffective assistance of counsel because defendant did not prove by clear and convincing evidence that counsel was ineffective regarding defendant's Interstate Agreement on Detainers and speedy trial violation claims. Although defendant complained that counsel failed to certify questions of law on these issues, defendant did not meet defendant's burden to show that, had counsel done so, the outcome of the case would have been different. Bauer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 483 (Tenn. Aug. 8, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to call the victims' uncle as a witness because his testimony was not material to the defense as he did not spend much time with the victims when the abuse occurred; the uncle stated that he did not know if he could have testified about the victims' truthfulness; and the photographs showing the victims celebrating holidays and participating in fun activities were not in the uncle's possession at the time of trial and were not material as they depicted events occurring before 2008 and 2009. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to file a motion to change venue based on pretrial publicity because counsel determined that there was no credible basis for filing the motion; the prospective jurors were questioned about their knowledge of the allegations, parties, victims, and witnesses in the case, and those jurors who indicated they had prior knowledge or knew anyone involved in the case were dismissed; and defendant did not present any evidence of actual bias or prejudice in the selected jury. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of two counts of aggravated child neglect or endangerment and two counts of child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for advising defendant not to testify at trial because defendant made her own decision not to testify based on the strategic recommendation of trial counsel; trial counsel stated that he advised defendant against testifying as she tended not to answer questions directly and failed to see her actions from the perspective of others; and trial counsel had concerns about the allegations to which defendant admitted in her interview with a doctor. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

In a case in which defendant was convicted of aggravated child neglect or endangerment and child abuse, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to cross-examine a worker for the Department of Children's Services (DCS) with the DCS case recording summary as counsel thoroughly questioned the worker about the allegations regarding nutritional neglect; the worker explained that she did not trust defendant's ex-husband, that his communications only prompted her to continue her investigation, and that she built her case based on the children's disclosures; and defendant failed to allege which portions of the case recording summary should have been used on cross-examination. Kent v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 14, 2018).

Petitioner failed to present clear and convincing evidence establishing any deficiency by trial counsel or any prejudice because neither petitioner nor trial counsel testified at the post-conviction hearing; petitioner did not challenge on appeal the post-conviction court's denial of his request to enter his daily calendars into evidence. Casey v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 17, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for failing to file motions for a speedy trial and/or motions to dismiss the prosecution based on the denial of defendant's constitutional right to a speedy trial because, assuming that trial counsel was ineffective for failing to file a motion for speedy trial, defendant did not prove any prejudice as defendant had already pled guilty in Hamilton County by the time trial counsel in Sullivan County was appointed to represent defendant on the charges in Sullivan County, and any motion for speedy trial filed at that point would not have cured any alleged prejudice by pleading guilty in Hamilton County. Blevins v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 444 (Tenn. Crim. App. June 12, 2018).

Defendant's petition for post-conviction relief, alleging that trial counsel did not adequately litigate the suppression issue, was properly denied because counsel testified that the prosecutor would not have allowed defendant to litigate the validity of the warrant and still enter into the plea agreement; counsel testified that he discussed the ramifications of the plea with defendant and that while he felt that the sentence under the agreement was harsh, he also thought it was possible that the motion to suppress would be denied, leaving defendant exposed to a much higher sentence; and counsel investigated the suppression issue and presented defendant with the choice of taking the plea offer or litigating the validity of the warrant. Wilson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 452 (Tenn. Crim. App. June 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 568 (Tenn. Sept. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to keep defendant informed throughout the case as counsel met with defendant five times in one week in August 2012 and visited him in jail in February 2012, he met with counsel's investigator multiple times, and he met with counsel's paralegal; for failing to investigate the case as defendant failed to show how the absence of the phone records prejudiced him; and for failing to withdraw as counsel as counsel was not at liberty to withdraw because defendant filed a motion and had the burden of establishing a ground for the grant of substitute counsel, but the trial court denied the motion. Crosby v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. June 21, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as defendant chose not to testify because counsel testified that he advised defendant not to testify as defendant, based on her limited understanding of the technical aspects of the case, would have been outmatched by the prosecutor, and counsel concluded that defendant's testifying would create bigger problems than it would have resolved; and because defendant did not show that counsel was ineffective for failing to call any witnesses at trial as none of the witness, who defendant claimed should have testified at trial, testified at the post-conviction hearing. Lopez v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 499 (Tenn. Crim. App. July 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 546 (Tenn. Sept. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because trial counsel was not deficient in entering an agreed order to substitute one doctor for another doctor; trial counsel articulated that the decision was based on strategy, and testified that the first doctor's testimony was not in conflict with the second doctor's but that her testimony also included her expert opinion regarding strangulation. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because petition made no showing that he was prejudiced by trial counsel's failure to exclude family photographs of the victim; petitioner was linked to the murder of the victim by his own statement to police and by strong physical evidence, and there was not a reasonable probability that the jury would have acquitted him had trial counsel managed to exclude the pictures. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he did not demonstrate that he was prejudiced by trial counsel's failure to exclude the crime scene photographs; because the decision not to challenge the photographs was a sound strategic decision, petitioner could not show that his counsel's actions were deficient, and the photographs were relevant to the issues at trial. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he did not show that trial counsel was deficient in failing to have him evaluated for competency; both trial counsel and an agent of the Tennessee Bureau of Investigation testified that petitioner did not appear to have any mental impairment, and the doctor who found him competent at the time of the hearing testified that he could make no retroactive determination of petitioner's competency at the time of trial. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he failed to demonstrate a reasonable probability that the motion to suppress his statement would have succeeded had trial counsel made the motion; the post-conviction court credited counsel's testimony that petitioner did not inform him that petitioner had been awake for several days prior to making the statement, and an agent testified that petitioner did not appear to be affected by lack of sleep. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Because petitioner failed to append the autopsy photographs of the victim, specify which photographs were inadmissible, or specify what the grounds for excluding them would be, he was not entitled to relief on his argument that trial counsel should have attempted to exclude the photographs; petitioner was charged with first degree premeditated murder, and photographs of the victim's corpse would have demonstrated the amount of trauma she suffered prior to her death. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Post-conviction court properly denied petitioner post-conviction relief because he did not demonstrate that he was prejudiced by trial counsel's failure to obtain a forensic pathologist to rebut an expert's testimony; although petitioner asserted that a hypothetical forensic pathologist could have given more favorable testimony that could have supported his theory of self-defense, petitioner failed to present the testimony of such an expert at the post-conviction hearing. Bettis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 712 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because, with no signs of impairment and a mental evaluation stating defendant was competent to stand trial, trial counsel and co-counsel were not ineffective when they proceeded to trial without further investigation into defendant's education or mental health; and trial counsel and co-counsel adequately considered the pros and cons of not objecting to defendant's statement as they agreed that his statement could be used to benefit him by conveying his side of the story to the jury without risking the perils of cross-examination, and they made a strategic or tactical decision not to object to the admission of his statement. Love v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 511 (Tenn. Crim. App. July 11, 2018).

Petition for post-conviction relief was properly denied as trial counsel was not ineffective because counsel had provided defendant with all of the information she needed to make an informed decision on whether to plead guilty as counsel testified that after defendant indicated that she wanted to plead guilty, he made several unsuccessful attempts to come to an agreement with the State; when defendant still wished to plead guilty, he encouraged her to take additional time to think about her decision; counsel explained the elements of first degree premeditated murder, the strengths and weaknesses of the State's case, and possible defenses; and trial counsel informed defendant of the rights she would be giving up by entering a guilty plea. Cole v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. July 12, 2018).

Post-conviction court properly denied petitioner relief because trial counsel was not deficient in failing to obtain a hypothetical crime scene expert; petitioner made no allegations regarding what testimony an expert could have given to support the defense theory, and he did not present the testimony of any crime scene expert at the post-conviction hearing to demonstrate that expert testimony would have shown that the crime scene supported the defense's theory of the events. Meeks v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 18, 2018).

Post-conviction court properly denied petitioner relief because he failed to establish that he was prejudiced by trial counsel's failure to have his mental health evaluated prior to trial since he did not show that the omitted mental health evaluation affected the results of the proceeding; there was no evidence to suggest that a mental health evaluation would have shown that petitioner was not competent to stand trial or that he was incapable of performing a premeditated act. Meeks v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 18, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel did not prejudice defendant with his statements to the jury in his opening statement as counsel did not make an admission of guilt; the State outlined the evidence it intended to present at trial, and counsel responded consistently with his trial strategy of mitigating defendant's role in the charged offenses; counsel was, to some degree, successful in that strategy as indicated by the jury's verdict of facilitation of some of the charged offenses; and counsel's statements in response to the State's overview of the evidence were a reasonable strategic choice under the circumstance. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Petition for post-conviction relief was properly denied as counsel was not ineffective because counsel made an informed decision in not introducing the transcripts of a witness's community corrections hearing as it limited the State's ability to emphasize aspects of the testimony that were contrary to the defense theory; he cross-examined the eyewitnesses about discrepancies and elicited responses related to their honesty about the offense; a determination of the admissibility of defendant's prior convictions was unnecessary as he expressed no interest in testifying; counsel had extensive discussions with defendant about his right to testify; and defendant did not present any witnesses that would have testified on his behalf at sentencing. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel did not err in not objecting to the supplemental instruction that the jury had to rely on the jury's own memory as to what a witness did or did not say as the instruction was fair to both parties in that it did not preclude jurors who recalled a description of the perpetrator from relying on that testimony, and did not cause misunderstanding or confusion; the instruction was a fair statement of the law in that judges were prohibited from commenting upon the evidence; and defendant provided no evidence that, upon objection, the trial court would have instructed the jury that the victim gave no description of the perpetrator. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel was not at fault for not allowing defendant to present closing argument as it was not counsel's prerogative to decide whether defendant was to address the jury in closing; after closing arguments, counsel made the trial court aware that defendant wanted to address the jury; and defendant explained his position to the trial court and, ultimately, the trial court denied his request finding that he was represented by counsel who provided the closing argument. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because counsel did not prejudice defendant with his statements to the jury in his closing argument as counsel's statements in closing were consistent with the defense strategy to mitigate defendant's involvement in the offenses; a valid argument of total innocence was precluded by the fact that co-defendant and defendant placed defendant at the crime scene; and counsel's strategy was reasonable and his statements in closing argument were consistent with the strategy. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 706 (Tenn. Nov. 14, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for not introducing evidence of the victim's drug addiction because it was a reasonable trial strategy as it avoided the implication that defendant was the victim's drug dealer and a discussion on defendant's drug dealing; and counsel wanted to avoid defendant disputing the credibility of another witness on the stand and, thereby, calling his own credibility into question. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to present the testimony of a domestic violence expert at the post-conviction hearing because, without testimony from a domestic violence expert, the appellate court had no idea what one might have concluded about defendant's situation or how such a conclusion could have affected the outcome of defendant's trial. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to produce the contents of defendant's phone records, which defendant claimed would have shown that he was asleep at the time of the crime, because, without more specific testimony or the introduction of the phone records as an exhibit, the appellate court could not determine whether the existence of the alleged phone calls or the timing of the alleged phone calls would have had an impact on the outcome of the trial. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied because the appellate court could not find that counsel performed deficiently by not objecting to the rebuttal testimony of the victim's mother after she had been in the courtroom throughout the proceedings as the mother would be a “victim” in the case because she was a natural parent of the victim who was deceased; as a victim, the mother had a right under the Tennessee Constitution to be at any proceeding that defendant had a right to be present, including his criminal trial; and the precise interplay between the sequestration rule and the victim's constitutional right to be present during the criminal proceedings had yet to be clarified. Davis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. July 26, 2018).

Defendant's petition for post-conviction relief was properly denied as lead trial counsel was not ineffective because counsel did not advise defendant to give a false statement, he knew when he gave the false statement that it could foreclose his ability to testify at trial without negative consequences, and he could not establish that the outcome of his trial would have been different if he had not proffered a false statement when he could not decide what he would have testified to at trial. Reed v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. July 30, 2018).

Defendant's petition for post-conviction relief was properly denied as lead trial counsel was not ineffective because counsel did not inadequately investigate defendant's level of intoxication as defendant did not present evidence of what an additional blood test would have revealed; and defendant was not prejudiced by counsel's failure to further investigate a text message exchange between defendant and another individual as defendant was unable to explain how lead trial counsel could have investigated the exchange, and he was unable to explain what effect the investigation would have had on his trial. Reed v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. July 30, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because defendant failed to prove by clear and convincing evidence the existence of a plea offer from the State that would reduce the sentence he was currently severing from 37 years to 20 years while simultaneously pleading guilty to additional felonies; and defendant was not prejudiced by any alleged deficiency on the part of counsel as he failed to prove that there was a reasonable probability that he would have accepted the State's 10-year-consecutive offer reflected in the State's file as he repeatedly insisted that the offer he wanted to accept was the asserted 20-year-inclusive offer, which the appellate court concluded never existed. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. Aug. 9, 2018).

Defendant failed to prove that defendant received ineffective assistance of counsel because the post-conviction court found that trial counsel discussed strategy with defendant and that counsel investigated the case properly and was prepared for trial. Furthermore, defendant did not call any character witnesses at the post-conviction hearing that defendant claimed should have been called at trial, and defendant did not produce the leases or medical records that defendant claimed should have been introduced at trial. Pilate v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 614 (Tenn. Crim. App. Aug. 14, 2018).

Post-conviction court did not err in denying petitioner post-conviction relief because he failed to prove that his counsel provided ineffective assistance by failing to provide him with discovery materials; counsel's credited testimony at the post-conviction hearing reflected that he reviewed all of the discovery materials with petitioner, and the guilty plea hearing transcript reflected that petitioner stated he had reviewed the discovery materials with counsel; Carpenter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 21, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for not complying with defendant's request for counsel to withdraw, or, at the very least, not supporting defendant's request for new counsel to the trial court because it was reasonable for trial counsel to continue representing defendant as, at the time that he represented defendant, he did not perceive an inability to communicate with defendant and had hope for building a better relationship with him. Further, defendant was not prejudiced by counsel's refusal to withdraw as the trial court had held a hearing on counsel's representation after receiving a letter from defendant, and denied his request for new counsel. Glenn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Oct. 1, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 64 (Tenn. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as there was no deficiency in trial counsel's efforts to communicate with defendant because trial counsel made nine jail visits, sent 12 letters, and spoke with defendant at various court dates; counsel spoke to defendant about the validity of the indictment, jury instructions, plea offers, trial strategy, likelihood of conviction, and sentencing exposure; and it was unquestioned that counsel communicated the 17 year plea offer extended by the State, but that defendant rejected the offer. Glenn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Oct. 1, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 64 (Tenn. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied as there was no conflict of interest, and trial counsel was not deficient in failing to disclose his representation of the prosecutor's mother in a civil matter to defendant because counsel's representation of the prosecutor's mother was not directly adverse to his representation of defendant, and was unrelated to defendant's murder trial; and defendant did not show that counsel's representation of defendant would be materially limited. Glenn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App. Oct. 1, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 64 (Tenn. Jan. 16, 2019).

Defendant's petition for post-conviction relief was properly denied because plea counsel was not ineffective in advising defendant to plead guilty as counsel secured a shorter sentence through a plea agreement with the State; or ineffective in failing to request a mental health evaluation as there was no evidence of defendant's need for an evaluation. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant's counsel during his trial for failure to appear was not ineffective in failing to call a doctor as a witness to raise the diminished capacity defense as counsel testified that he did not trust the doctor, especially when it came to presenting a diminished capacity defense, because he had prior experience with the doctor, who had testified inconsistently about diminished capacity; and counsel did present to the jury the theory that defendant was not capable of forming the state of mind sufficient to satisfy that element of the offense because he was in a drug-induced fugue state at the time he failed to appear at the sentencing hearing. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied as to his ineffective assistance of counsel claim as he did not show prejudice because, pursuant to the plea agreement, numerous felony charges were dismissed against defendant and defendant's nephew received the benefit of a sentence to be served primarily on probation; the record clearly demonstrated that defendant was aware of the sentence he would receive; and he made no particular allegation explaining what element of aggravated robbery he contested or why he would not have been willing to plead guilty to aggravated robbery had trial counsel explained the elements. Englebert v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 812 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant's counsel during his trial for failure to appear was not ineffective for failing to appeal the failure to appear conviction as the plea agreement, encompassing both of defendants cases and sentencing defendant to an effective sentence of 12 years, included a waiver of his right to appeal; and counsel had no grounds on which to file an appeal. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Defendant's petition for post-conviction relief was properly denied because defendant's counsel during his trial for failure to appear was not ineffective in failing to use a preemptory challenge against a juror with personal knowledge of defendant as counsel testified that defendant insisted that the juror not be stricken; the juror indicated that no part of that relationship would affect her ability to sit as a fair and impartial juror; the juror's friendship with defendant's family members indeed could have weighed in defendant's favor; and defendant presented no evidence that his desire for her to be removed from the jury was ignored or disregarded by counsel. Kidd v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 813 (Tenn. Crim. App. Nov. 1, 2018).

Petitioner, who appealed the denial of her petition for post-conviction relief, failed to prove by clear and convincing evidence her claim that she was not competent to waive her rights because she was suffering from postpartum depression at the time of her police interviews. Furthermore, trial counsel's decision to not challenge the admissibility of petitioner's statements was a reasonable strategic decision. McCollum v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 820 (Tenn. Crim. App. Nov. 5, 2018).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as defendant failed to show that his plea was not knowingly, voluntarily and intelligently made and that, but for trial counsel's alleged deficiencies, he would have refused to plead guilty and insisted on going to trial because the assistant district attorney general who prosecuted defendant's case testified that counsel demonstrated excellent awareness of the facts that he was going to use in his defense, and that the proof against defendant at trial was becoming somewhat overwhelming; and defendant pled guilty once he saw the evidence against him to obtain a more favorable sentence than he would have received if convicted at trial. Pierce v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 823 (Tenn. Crim. App. Nov. 5, 2018).

Defendant's petition for post-conviction relief was properly denied as the post-conviction court did not err in excluding testimony of two criminal defense attorneys about the standard of performance required of an attorney in a child sexual abuse case because he did not make an offer of proof consisting of testimony, an affidavit, or other evidence to show how the proposed expert testimony was necessary to substantially assist the trier of fact; and no issues unique to the case which required specialized knowledge beyond that possessed by the post-conviction court were apparent from the record. Russell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 857 (Tenn. Crim. App. Nov. 20, 2018).

Defendant's petition for post-conviction relief alleging that trial counsel was ineffective for failing to argue that the State failed to prove that the victim was less than 13 years old was properly denied because counsel testified that, after consulting with and preparing for trial with defendant, she chose to pursue a defense that the facts failed to show he committed the alleged offenses; a strategy of arguing that the facts failed to show that defendant had sexually penetrated the victim did not turn on a question of the age of the victim; and counsel's strategy proved somewhat successful in that defendant was acquitted of rape of a child and was convicted of the lesser included offense of attempted rape of a child. Russell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 857 (Tenn. Crim. App. Nov. 20, 2018).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because trial counsel discussed co-defendant's statement and any plea offers that the State proposed; the possibility that his co-defendant could testify against him or that his co-defendant's statement could be admitted; and that, even if the co-defendant's statement was suppressed, there was a significant amount of evidence against him, including the victim identifying defendant and the police arresting defendant after removing him from the stolen, wrecked car. Farmer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 882 (Tenn. Crim. App. Dec. 5, 2018).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective in failing to object to the State's question to the victim to compare her pain after the aggravated assault to pain she had experienced during other times of her life because counsel believed that the State had a right to inquire about the victim's pain level and place it in context so the jury could understand; the post-conviction court found that the testimony was highly relevant to the jury in evaluating the seriousness of the victim's injuries; and the evidence of the victim's testimony as well as the medical proof overwhelmingly showed that the victim suffered serious bodily injury and extreme pain as a result of defendant's attack. Baxter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 902 (Tenn. Crim. App. Dec. 14, 2018).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as she testified that she hired an expert to rebut a witness's testimony that he saw defendant shoot the victim and that the expert was prepared to testify, but, when the witness testified at trial that he did not recall the incident, counsel made a strategic decision not to call the expert; counsel stated that she wanted to focus on the witness's testimony that he did not recall the incident and that the expert's testimony would have drawn attention to the factual basis of the witness's testimony; and counsel argued no reliable witnesses identified defendant as the perpetrator. Davis v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 4, 2019).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective for failing to timely file a motion to cross-examine the victim about an alleged consensual sexual encounter because counsel testified that defendant came up with the idea that he had been in a consensual sexual relationship with the victim when he saw the victim at trial, that defendant never told him about a consensual sexual encounter before trial and that, if defendant had mentioned that before trial, it would have made perfect sense to go ahead and file such a motion; the post-conviction court determined that counsel was credible and defendant was not; and the proof at trial regarding the rape was overwhelming. Jefferson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 4, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to object to the prosecutor's statement that the expert forensic pathologist testified that petitioner was standing three feet from the victim at the time of the shooting because petitioner failed to cite the portion of the trial transcript where the prosecutor made the statement and he did not question counsel during the post-conviction hearing about his failure to object. Fuller v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 11, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective because defendant knowingly and voluntarily entered into the plea agreement as counsel testified that he explained to defendant that his sentences in the two cases had to be served consecutively; the trial court spent a significant amount of time explaining to defendant why he could not receive jail credits on both sentences, and explained the consecutive nature of defendant's sentences; and defendant stated, under oath, that he understood and that it was his desire to enter into the plea agreement. Wade v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 17, 2019).

Defendant's petition for post-conviction relief was properly denied as counsel was not ineffective for failing to seek a hearing to determine which of defendant's prior convictions were admissible impeachment evidence if defendant chose to testify because defendant never intended to testify regardless of which priors could have been used against him at trial; his convictions also could have been admitted as substantive evidence to rebut a claim of self-defense had he testified; and he did not show that he would have testified had counsel conducted a hearing regarding the admissible impeachment convictions and that his testimony would have affected the outcome of his trial. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 37 (Tenn. Crim. App. Jan. 17, 2019).

Defendant's petition for post-conviction relief was properly denied as lead counsel was not ineffective for failing to present any mitigating proof at the sentencing hearing because, while the trial court ruled that defendant had failed to establish entitlement to a self-defense instruction, the proof of the prior altercation with the victim that same evening came into evidence at trial; the victim had testified to exactly the same thing; and defendant did not show that he would have received a different sentence but for lead counsel's alleged error as he had a lengthy criminal record and was on bond when he committed the current offense. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 37 (Tenn. Crim. App. Jan. 17, 2019).

Defendant was not entitled to post-conviction relief because defendant did not establish that defendant was prejudiced by the failure of trial counsel regarding the denial of defendant's motion to suppress and the failure of trial counsel to move to strike the testimony by a witness concerning DNA evidence after the trial court excluded a DNA report, or by the appellate counsel failing to raise the issues on appeal. Gilbert v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 81 (Tenn. Crim. App. Feb. 7, 2019).

Evidence did not preponderate against the post-conviction court's finding that petitioner's claims of insufficient communication were without merit because trial counsel documented nine different times that he met with petitioner either in person or via video conference; additionally, the record contained four letters sent by trial counsel to petitioner in order to keep him apprised of the status of his case. Wi v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Apr. 10, 2019).

Petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because counsel did not fail to adequately investigate a known drug dealer as the dealer refused to testify under oath at the post-conviction hearing about his alleged ownership of the cocaine, and his alleged driving of the SUV on the day of the offense prior to defendant; defendant did not show that he would have been entitled to funds to retain a fact investigator and expert witness; and defendant did not show that a motion to suppress would have been granted as the witness's identification was clearly reliable, notwithstanding the use of a single photograph, because she had seen defendant 10-12 times prior to the date of the offense. Shaw v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 244 (Tenn. Crim. App. Apr. 17, 2019).

Defendant's petition for post-conviction relief alleging that he received ineffective assistance of counsel based on trial counsel's failure to discuss with defendant trial strategy and the proof to be presented by the defense at trial was properly denied because the post-conviction court did not err in determining that defendant's testimony that counsel never met with him was not credible; and in finding that counsel was prepared for trial and that the defense strategy employed by counsel had been, to an extent, successful as defendant had been charged with six counts of attempted second degree murder, but was convicted of only one count of attempted second degree murder and five counts of only reckless endangerment. Harris v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. Apr. 25, 2019).

Inmate was not entitled to post-conviction relief based on ineffective assistance of counsel, due to counsel's alleged failure to pursue inconsistencies in a victim's testimony, because the inmate did not establish by clear and convincing evidence either counsel's deficient performance or prejudice, as counsel explained counsel did not pursue a certain line of questioning attacking the victim's credibility or make an offer of proof since (1) counsel did not think there was a good-faith basis for such questioning, (2) counsel had no proof to offer that would have helped the defense, (3) counsel did not question the victim about the victim's failure to appear at a trial setting due to not knowing why the victim did not appear, and (4) counsel did not want to pursue a line of questioning that could have harmed the defense. Morgan v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. Apr. 30, 2019).

Defendant established neither deficient performance, nor prejudice by counsel at sentencing because it was unclear from the record why defendant did not participate in the preparation of the presentence report; trial counsel was unaware of any mental health problems that defendant may have had that could have been presented as mitigating evidence; and defendant did not present any evidence—such as evidence of a mental health condition—that defendant asserted should have been included in the presentence report. Lewis v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. July 12, 2019).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective because counsel made the strategic decision not to subpoena the defense's computer forensics expert to testify at trial as the expert informed counsel that she could not rebut the State's second report; and defendant was not prejudiced by counsel's decision not to call the expert as defendant did not present any evidence at the post-conviction hearing to establish that he did not have access to the computers at the time that a user downloaded or viewed child pornography. Epps v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 463 (Tenn. Crim. App. Aug. 2, 2019).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as counsel was not intoxicated or impaired to the extent that he could not perform his duties as counsel while meeting with defendant or otherwise in preparing for his defense. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Sept. 17, 2019).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective for not seeking to exclude his prior aggravated robbery conviction as defendant had already decided not to testify when trial counsel and the prosecutor learned that the conviction was for aggravated robbery and not aggravated burglary; and defendant's decision not to testify was due to defendant's criminal history, which included several other felony convictions. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Sept. 17, 2019).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as counsel explained the concept of criminal responsibility to defendant; and defendant rejected the State's offer of a plea agreement, stating that if he was going to jail, a jury or the judge would give him that sentence. Wilson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Sept. 17, 2019).

Petitioner showed no prejudice because he failed to show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial; petitioner was facing thirty years' imprisonment if he went to trial, but he received a sentence for less than half that amount due to the plea agreement negotiated by trial counsel. Staggs v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. Sept. 13, 2019).

Petitioner did not show that trial counsel's performance was deficient because he did not show how trial counsel failed to investigate a defense or explore weaknesses in the State's case or that counsel's performance dropped below prevailing professional norms; trial counsel testified that he explained to petitioner that the State's case was overwhelming, and the post-conviction court credited trial counsel's testimony. Staggs v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. Sept. 13, 2019).

In a case in which, on the day of trial, counsel was presented with the State's proposition that the defense either stipulate to evidence of previous unindicted controlled buys or the State would seek dismissal of the case and re-indict defendant with additional charges, defendant's petition for post-conviction relief was properly denied as counsel was not ineffective in how she responded to and addressed the State's proposal, dismissal, and new indictment because, after the new indictment, counsel filed a motion to dismiss the new indictment, but the trial court denied the motion; and counsel was not responsible for the actions of the prosecutors. Gossett v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Dec. 30, 2019).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel based on trial counsel's failure to adequately communicate with him was properly denied because counsel provided discovery to defendant, and he met with him and reviewed it; counsel disagreed that he and defendant mainly discussed the plea offers and not the facts of the case; he specifically remembered discussing defendant's rights with him; counsel said that he explained to the best of his ability the potential sentence that defendant faced if he went to trial versus the plea offers; and, at the post-conviction hearing, defendant admitted that he understood that he could face more time if he went to trial rather than accepting the plea offer. Jackson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 808 (Tenn. Crim. App. Dec. 30, 2019).

Supreme Court of Tennessee expressly overruled its holding in Wallace v. State that trial counsel's failure to file a timely motion for new trial was presumptively prejudicial so long as the petitioner indicated a desire to appeal and held that the postconviction court properly considered both prongs of the Strickland analysis. Howard v. State, — S.W.3d —, 2020 Tenn. LEXIS 268 (Tenn. July 16, 2020).

Counsel's failure to call a witness was not ineffective because (1) counsel was unaware of the witness until trial, and (2) the witness would not have provided defendant with an alibi. Franklin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 30, 2020).

Counsel's failure to request a bill of particulars in a child sex abuse case was not ineffective because (1) a victim's preliminary hearing testimony narrowed the relevant timeframe as much as it could have been, (2) counsel was prepared to defend the charges, and (3) nothing showed a bill of particulars would have given defendant additional assistance. Franklin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 30, 2020).

Counsel's failure to request a formal election of offenses was not ineffective because (1) each offense was well defined in preliminary hearing testimony and verdict forms, and (2) counsel reasonably strategically chose not to seek an election as to two virtually identical offenses. Franklin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 30, 2020).

Post-conviction court did not err by citing a case for the principle that trial counsel's decisions could not be reviewed with the benefit of hindsight because the holding in that case was consistent with established case law; petitioner did not cite any authority, persuasive or binding, to support his argument that the post-conviction court's reliance on the case entitled him to a new evidentiary hearing. Logan v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 26, 2020).

Post-conviction court did not err in denying petitioner post-conviction relief because he failed to show that trial counsel's performance was deficient for failure to make a motion for a change of venue; trial counsel consulted with attorneys experienced in cases involving a change of venue, and based on his research and the facts of petitioner's case, he believed that petitioner's risk of conviction could have been greater if the case was tried before a more conservative jury. Logan v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 139 (Tenn. Crim. App. Feb. 26, 2020).

Because petitioner failed to prove that trial counsel's performance was deficient, he was not entitled to post-conviction relief; the testimony presented and exhibits entered into evidence at the post-conviction hearing support the post-conviction court's finding that the Assistant District Attorney General conveyed the offer of settlement to trial counsel, that trial counsel conveyed the offer to petitioner, and that petitioner rejected the offer. State v. Langston, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 231 (Tenn. Crim. App. Apr. 8, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to move to re-open the proof in order to call co-defendant to the stand after he had accepted a plea because trial counsel would have been unaware of the exact details of co-defendant's testimony at that stage of trial; the defense had already been presented to the jury that the victim's injuries might have resulted from his being dropped or hitting his head on the concrete, that co-defendant was involved, and that any such actions were accidental; and co-defendant's testimony at the evidentiary hearing served little to bolster the theory that the victim was dropped on the concrete hard enough to cause his injuries. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to move for a new preliminary hearing due to an incomplete recording of the first hearing because trial counsel stated that it would have been the same testimony; counsel was familiar with the State's witnesses and prepared to cross-examine them at trial; and both witnesses were cross-examined at trial about statements they made at the preliminary hearing. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to fulfill a promise made during opening statement that the victim was on house arrest with supporting proof at trial because the trial court's admonishment to trial counsel not to tarry on the issue of the victim's house arrest was made in front of the jury after an objection by the State. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to object to the jury instruction because the trial court provided complete preliminary instructions that it was the jury's job to determine what the facts of the case were, and that the jury would apply the law that the trial court gave the jury to the facts in the case; and nothing in the challenged preliminary instruction misstated the constitutional principle that the jury were the judges of the facts and of the law as it applied to the facts. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for postconviction relief was properly denied as trial counsel was not ineffective for failing to elaborate on the possibility that the victim's death resulted from an injury to his head received when he was accidentally dropped on concrete through thorough cross-examination of the medical examiner (ME) because, although trial counsel did not ask the ME about the victim's being dropped on the concrete during his initial cross-examination, the ME did discuss the issue based upon the questions submitted by the jury; and trial counsel, after the question, got the ME to concede that such a scenario could in theory be more apt to cause a skull fracture than kicking or stomping with tennis shoes. Cartwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 239 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to ensure juror impartiality as the trial court instructed the victim's family to turn the domestic abuse support shirts they were wearing inside out; and trial counsel questioned the jury venire on whether they could apply the presumption of innocence and reasonable doubt standard, whether they knew defendant, the victim, or other jurors, whether they had an inherent bias about domestic abuse, and whether they had a bias toward the police and their testimony. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to adequately cross-examine the victim as trial counsel's decision not to aggressively cross-examine a sympathetic victim about the disability she suffered as a result of a shooting was reasonable; the victim's testimony that defendant had been stalking her and taking violent actions against her was not refuted by defendant's claim that he was dating someone else at the time of the offense; and the decision of trial counsel to focus the defense strategy on more relevant aspects of the case was reasoned and strategic, and therefore not deficient. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to conduct a proper investigation as he did not show how trial counsel's failure to test the gun for fingerprints, to have the blood evidence tested to ensure that it was human blood, to hire experts in blood-spatter analysis or forensic toxicology, and to investigate the crime scene fell below an objective standard of reasonableness under prevailing professional norms. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Defendant's petition for post-conviction relief was properly denied because counsel was not ineffective for failing to object to improper witness testimony as an agent's statement that it was impossible to collect fingerprints and DNA from the same source was not shown to be incorrect; and the 9-1-1 operator acted as the keeper of the records at trial, and her testimony was admitted to authenticate the veracity of the recording. Stitts v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 20, 2020).

Inmate's claim that trial counsel lacked a trail strategy failed because trial counsel formulated a strategy based on what the inmate told him—that the inmate's DNA could not be found on the victims because he was incapable of having an erection. After the lab found the inmate's DNA in semen from vaginal swabs of the victims, trial counsel was forced to abandon this trial strategy and proceed with the consensual sex claim. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

Inmate's claim that trial counsel was ineffective for failing to adequately investigate lacked merit because the inmate failed to show how interviewing the neighbors or obtaining video footage, if same actually existed, would have been of any benefit to the defense. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

Inmate's claim that trial counsel was ineffective for failing adequately cross-examine any witnesses lacked merit because trial counsel was successful in getting a nurse to state that during her examinations of the victims she found no injuries in the victims' vaginal and anal areas and to admit that it was possible that the victims did not have any injuries because there was no attack done. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

Inmate's claim that trial counsel was ineffective for failing to object to photos of knives failed because, based on the overwhelming evidence of guilt, including the victims' testimony that the inmate was armed with two knives, the fact that he was still in the house when police arrived, and the fact that knives were found in the house, the inmate has failed to show that trial counsel's failure to object to the photograph of the knives prejudiced him or undermined confidence in the jury's verdict of guilt. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

Denial of post-conviction relief was proper because, although the testimony of the owner of the home where the rapes occurred that a stain on the carpet “looked like dried semen” may have been found inadmissible if trial counsel had objected, in light of the proof that swabs done at the Rape Crisis Center recovered the inmate's DNA from seminal fluid in the vaginal area of both victims, the inmate failed to demonstrate that the statement prejudiced him. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

Inmate's claim that trial counsel was ineffective for failing to object when officers read testimonial statements of the victims included in the officers' reports before the victim testified failed because the inmate failed to point to specific statements he claimed were testimonial, the officers obtained information at the scene where the rapes occurred or were occurring, and the victims testified later and were subject to cross-examination. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 29, 2020).

Defendant was not entitled to post-conviction relief for ineffective assistance of counsel, due to counsel's failure to call certain witnesses at trial, because (1) counsel made a strategic decision not to call a witness defendant claimed would have supported voluntary manslaughter instead of the second degree murder of which defendant was convicted after interviewing the witness and concluding the witness's testimony would have painted defendant as an aggressor, and (2) defendant did not show what other witnesses counsel did not call would have said. Lopez v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. July 2, 2020).

In advising defendant about a guilty plea to especially aggravated sexual exploitation of a minor, trial counsel was not ineffective because, based on counsel's understanding of the case law, he determined that the videos orchestrated and produced by defendant were likely to be found to be lascivious; and, following a review of some of the videos, the appellate court agreed with the post-conviction court that counsel's assessment of the State's case was reasonable. Jones v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 478 (Tenn. Crim. App. July 14, 2020).

Counsel was not ineffective because he testified that defendant understood the plea petition and the event of pleading despite his taking medication for depression and anxiety; and, during his plea colloquy, defendant testified that he was not under the influence of alcohol or drugs or suffering from any mental health problems. Jones v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 478 (Tenn. Crim. App. July 14, 2020).

Defendant's guilty plea was knowingly made because the trial court explained the charges against defendant and the possible sentences stemming from it; he denied that he was under the influence of alcohol or drugs, denied that he was suffering from any mental health problems, and denied that he was being forced to enter the guilty plea; he acknowledged that he understood his rights and that he was waiving his right to a jury trial and his right to an appeal; and he had the opportunity to confer with competent counsel about the options available to him, and by entering his plea, he avoided a potentially greater penalty that might have resulted from a jury trial. Jones v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 478 (Tenn. Crim. App. July 14, 2020).

In an aggravated sexual battery case, trial counsel was not ineffective for failing to present evidence of defendant's erectile dysfunction because counsel testified that she felt it was strategically necessary to present proof that defendant was sexually active with the victim's mother as she felt that the defense needed to provide an explanation for the child victim's sexual knowledge as an alternative to the explanation that she gained the knowledge through abuse by defendant; and the evidence would have been in conflict with defendant's own testimony. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 512 (Tenn. Crim. App. July 27, 2020).

In an aggravated sexual battery case, trial counsel was not ineffective for failing to investigate or call two witnesses because the testimony of the witnesses at the post-conviction hearing only had bearing on defendant's general character and on his back injury; at trial, defendant's mother, sister, and wife gave similar testimony about his character and injury; the witnesses actually presented at trial were able to give more detailed testimony and also had testimony that was relevant to defendant's relationship with the child victim; and there was no reasonable probability that, had the omitted witnesses been presented at trial, the result of the proceeding would have been different. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 512 (Tenn. Crim. App. July 27, 2020).

Record supported the post-conviction court's finding that trial counsel's advice that petitioner testify was a reasonable tactical decision. Trial counsel was not deficient in making a judgment call based upon adequate preparation and, from all accounts, a conscientious and flexible approach to difficult circumstances at trial. Jackson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 580 (Tenn. Crim. App. Aug. 25, 2020).

Trial counsel was not ineffective because, during the guilty plea colloquy, counsel advised the court that he would be recommending defendant for placement at a special needs facility, and the trial court noted the recommendation on the judgment form; and counsel testified at the post-conviction hearing that he neither misled defendant into believing nor guaranteed to defendant that he would serve his sentence at the special needs facility. Aldridge v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Sept. 29, 2020).

Defendant's petition for post-conviction relief was properly denied as trial counsel was not ineffective in failing to file a motion to suppress because nothing in the letters from defendant's cellmate indicated that he was being directed to act or compensated for eliciting information from defendant; and the appellate court had all the existing evidence pertinent to any agreement made by the government, acting through a detective, with the cellmate when it concluded that the cellmate was not a State agent. Frelix v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Oct. 5, 2020).

15. — —Effective Assistance Not Denied.

Defendant was not denied effective assistance of counsel. Lofton v. State, 898 S.W.2d 246, 1994 Tenn. Crim. App. LEXIS 715 (Tenn. Crim. App. 1994).

Defendant's inability to understand the concepts of “best interests” and “Alford plea”, and his inability to follow the discussion between counsel and the bench did not render counsel's assistance ineffective nor defendant's guilty plea involuntary. Hicks v. State, 983 S.W.2d 240, 1998 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. 1998), review or rehearing denied, — S.W.3d —, 1998 Tenn. LEXIS 653 (Tenn. 1998).

Defendant failed to establish either deficient performance or prejudice with respect to counsel's opening statement or closing argument; although defendant's trial counsel inadvertently misstated in the opening statement that defendant was guilty, counsel immediately corrected the error and properly told the jury that the defendant was “innocent” and “presumed innocent.” State v. Shaw, 37 S.W.3d 900, 2001 Tenn. LEXIS 141 (Tenn. 2001).

Petitioner failed to show that trial counsel were ineffective for failing to present sufficient evidence of mitigating circumstances during the sentencing phase of the capital proceeding for the rape and murder because the evidence at the post-conviction hearing would not have affected the jury's determination given the strong evidence supporting the prior violent felonies aggravating circumstance. Nichols v. State, 90 S.W.3d 576, 2002 Tenn. LEXIS 419 (Tenn. 2002).

Petitioner was not denied petitioner's right to the effective assistance of counsel based on the failure to: (1) Investigate and challenge petitioner's confessions as false; (2) Challenge the legality of petitioner's arrest; (3) Present additional mitigating evidence at the sentencing phase of petitioner's capital trial; (4) Object to misconduct by the prosecution at the sentencing phase of his capital trial; (5) Request mitigating instructions at the sentencing phase of petitioner's capital trial; (6) Raise issues regarding the constitutionality of capital punishment at the sentencing phase of petitioner's capital trial; and (7) Object to the discovery of notes prepared by a defense psychologist on self-incrimination grounds at the sentencing phase of petitioner's capital trial. Nichols v. State, 90 S.W.3d 576, 2002 Tenn. LEXIS 419 (Tenn. 2002).

Petitioner was not deprived of effective assistance of counsel when he was advised to waive his right to appeal his conviction in exchange for not being charged on different crimes; petitioner failed to prove that he would not have waived his right to appeal absent his attorney's allegedly deficient performance, and both the trial court and his attorneys advised him as to what he was doing. Carter v. State, 102 S.W.3d 113, 2002 Tenn. Crim. App. LEXIS 1014 (Tenn. Crim. App. 2002).

Although a defendant may waive his right to appeal, a waiver of appeal, executed as part of a post-verdict sentencing agreement, did not preclude the filing of a petition for post-conviction relief under the Post Conviction Relief Act, T.C.A. § 40-30-101 et. seq., for claims of ineffective assistance of counsel that occurred prior to the waiver; however, defendant failed to show that his counsel's representation fell below an objective standard of reasonableness for criminal attorneys. Serrano v. State, 133 S.W.3d 599, 2004 Tenn. LEXIS 331 (Tenn. 2004).

Counsel was not ineffective where defendant waived his right to appeal where, counsel testified that he spoke Spanish and that he was able to communicate with defendant in both English and Spanish, in addition, defendant acknowledged that he understood that he was getting a nine-year sentence in exchange for giving up his right to appeal, and moreover, he never complained to anyone that he did not understand the proceedings or the sentencing agreement; nor did a sentence of nine years, one year over the minimum sentence, demonstrate prejudice that would have satisfied the second prong of Strickland . Serrano v. State, 133 S.W.3d 599, 2004 Tenn. LEXIS 331 (Tenn. 2004).

In a capital murder case, counsel was not ineffective in the investigation and presentation of mitigation evidence where he interviewed witnesses concerning defendant's upbringing, doctors conducted competency evaluations, and counsel interviewed defendant concerning his childhood. Moreover, defendant was unable to show prejudice where one of the victims was subjected to multiple rapes while she was still conscious, the strangulation attempt required considerably more force than applied to the victim's husband, and the victim was aware of what was happening to her husband. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

In a capital murder case, counsel was not ineffective for failing to object to the court's failure to inform the jury of the result in the event that the jury found that the aggravating circumstance had been proven beyond a reasonable doubt but did not conclude that the state had proven that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt where: (1) The charge was not internally inconsistent; (2) The jury was instructed that in arriving at punishment it “shall consider” any mitigating circumstances; and (3) The court thereafter listed eight such circumstances. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

In defendant's capital murder case, counsel was not ineffective for failing to adequately develop the theory that the co-defendant was the primary actor who dominated the scene of the crime; although defendant argued that had trial counsel investigated co-defendant's background, counsel would have discovered that co-defendant was a suspect in the strangulation death of a woman in New Mexico, defendant failed to explain why trial counsel should have set out on such a course of investigation prior to his 1988 trial or even how such information relating to an unsolved homicide would have been uncovered. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

In defendant's capital murder case, counsel was not ineffective for failing to adequately cross-examine a State's witness where the limited cross-examination was a trial tactic based on reluctance to ask the witness, who was “odd and unpredictable,” too many questions. In addition, abundant evidence, aside from the witness's testimony, supported defendant's dual homicide convictions. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

In defendant's capital murder case, counsel was not ineffective for failing in failing to discover his German ancestry and failing to inform him of his rights under the Vienna Convention where post-conviction relief did not reach a claimed violation of the Vienna Convention, and furthermore, for purposes of post-conviction proceeding, the Vienna Convention created no individual rights that were privately enforceable. Cauthern v. State, 145 S.W.3d 571, 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2004).

Post-conviction relief petition was properly summarily dismissed, because petitioner failed to show that counsel was ineffective for failing to challenge the jury instructions for second degree murder which failed, like those in State v. Page , 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002) to specify that a second degree murder was a result-of-conduct offense; since petitioner was convicted of first degree, premeditated murder, any failure of the trial court to adequately instruct the jury under Page was harmless beyond a reasonable doubt. O'Baner v. State, 159 S.W.3d 605, 2004 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1023 (Tenn. Nov. 15, 2004), cert. denied, O'Baner v. Tennessee, 544 U.S. 999, 125 S. Ct. 1933, 161 L. Ed. 2d 773, 2005 U.S. LEXIS 3553 (2005).

Post-conviction relief was properly denied in an aggravated sexual battery case, because trial counsel's cross-examination of the victim, based upon a defense theory that the victim was not truthful and that portions of her testimony were inconsistent with her prior statements and other evidence, was not below the range of professional assistance. Walsh v. State, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Aug 23, 2004), rev'd, 166 S.W.3d 641, 2005 Tenn. LEXIS 581 (Tenn. 2005).

Post-conviction relief was properly denied in an aggravated sexual battery case; although trial counsel incorrectly assumed that a laborious cross-examination of a department of child services witness concerning differences between a transcript and tape of the witness' interview with the victim would not lead to admission of tape, its admission was not sufficiently damaging to deprive defendant of a reliable result, because the victim testified to uncharged sexual conduct that was referenced, and counsel's strategy was partially successful. Walsh v. State, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 752 (Tenn. Crim. App. Aug 23, 2004), rev'd, 166 S.W.3d 641, 2005 Tenn. LEXIS 581 (Tenn. 2005).

On review of defendant's conviction for evading arrest, he failed to established that his trial counsel's failure to challenge the lawfulness of his arrest or ask that the jury be instructed on the statutory defense to evading arrest amounted to deficient representation; since he failed to prove the first prong of the Strickland test, defendant's claim of ineffective assistance of trial counsel was without merit. State v. Livingston, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 247 (Tenn. Crim. App. Mar. 15, 2005), rev'd, 197 S.W.3d 710, 2006 Tenn. LEXIS 641 (Tenn. 2006).

Trial counsel was not ineffective for failing to request removal of a juror who reacted with alarm over a gesture made by a spectator during trial, where: (1) The post-conviction court specifically accredited trial counsel's testimony that he timely raised concerns over the juror's reaction to the incident; (2) Counsel's cross-examination of the main witness was part of counsel's overall trial strategy; (3) Petitioner did not show that he was prejudiced by the failure of his suggested witnesses to testify at trial; (4) Trial counsel's decision not to interrupt the main witness' examination was a tactical strategy developed in light of the facts and circumstances surrounding that particular witness' testimony and the case as a whole; and (5) Defendant failed to cite any portion of the trial transcript in support of his claim as required by T.R.A.P. 27(a)(7) and Tenn. Ct. Crim. App. R. 10(b). Paris v. State, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 863 (Tenn. Crim. App. Aug. 16, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 3 (Tenn. 2006), cert. denied, Paris v. Tennessee, 547 U.S. 1196,126 S. Ct. 2869, 165 L. Ed. 2d 902, 2006 U.S. LEXIS 4592 (2006).

Post-conviction relief was properly denied in a first degree murder case on the ground of ineffective assistance of counsel due to counsel's failure to present witnesses at trial to testify about the victim's violent nature, because counsel's decision not to interview certain witnesses or present them at trial was a strategic choice made for specific, credible reasons; however, relief was granted due to counsel's ineffectiveness regarding sentencing information. Granderson v. State, 197 S.W.3d 782, 2006 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 13, 2006).

Post-conviction relief was properly denied in a first degree murder case on the ground of ineffective assistance of counsel due to counsel's failure to request a mental evaluation, because the decision was not just a matter of strategy, but was based on specific information and sound reasons; however, relief was granted due to counsel's ineffectiveness regarding sentencing information. Granderson v. State, 197 S.W.3d 782, 2006 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 13, 2006).

Post-conviction relief was properly granted because counsel was ineffective in failing to properly inform petitioner of his potential sentence if convicted of first degree murder; the evidence did not preponderate against the post-conviction court's decision to give credibility to petitioner's testimony, which was bolstered by a letter from petitioner to counsel that was personal in nature and motivated out of genuine concern, that he rejected a plea offer of 20 years based on the assertions of trial counsel as to the definition of a life sentence. Granderson v. State, 197 S.W.3d 782, 2006 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 13, 2006).

Denial of the inmate's petition for post-conviction relief was proper because the fact that counsel failed to impeach a witness on every inconsistency failed to demonstrate deficient performance on the part of his counsel; the record showed that counsel capitalized on various inconsistencies in an effort to undermine that witness's credibility. Haymon v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 560 (Tenn. Crim. App. July 20, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1180 (Tenn. Dec. 18, 2006), cert. denied, Haymon v. Tennessee, — U.S. —, 127 S. Ct. 2269, 167 L. Ed. 2d 1107, 2007 U.S. LEXIS 5320 (U.S. 2007).

Denial of the inmate's petition for post-conviction relief was proper because the fact that counsel failed to impeach a witness on every inconsistency failed to demonstrate deficient performance on the part of his counsel; the record showed that counsel capitalized on various inconsistencies in an effort to undermine that witness's credibility. Haymon v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 560 (Tenn. Crim. App. July 20, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1180 (Tenn. Dec. 18, 2006), cert. denied, Haymon v. Tennessee, — U.S. —, 127 S. Ct. 2269, 167 L. Ed. 2d 1107, 2007 U.S. LEXIS 5320 (U.S. 2007).

Defendant failed to prove by clear and convincing evidence that he received ineffective assistance of counsel where the record revealed that his counsel at trial felt that he could provide defendant with effective representation despite any previous conflicts. In his brief defendant acknowledged that his counsel was experienced and competent, and defendant provided no specific examples of how the trial court abridged his right to effective assistance of counsel by denying his motion to withdraw. State v. Troglin, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Sept. 14, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 94 (Tenn. Jan. 29, 2007), dismissed, Troglin v. Westbrooks, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 157955 (E.D. Tenn. Nov. 7, 2014).

In a criminal prosecution for first degree murder, defense counsel was not ineffective for failing to object to the trial court's instruction on the definition of “knowingly,” failing to view the area of the house where the gun was found by police, and failing to interview witnesses regarding this evidence; defendant failed to show any prejudice from counsel's actions. Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), overruled in part, Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

Where defendant was convicted of first degree murder after gunfire was released at a parking lot outside a restaurant, counsel did not render deficient performance by failing to file a motion to suppress the gun; defendant failed to prove the prejudice prong of the Strickland standard, and even if the gun had not been introduced into evidence, there were multiple eyewitnesses who identified him as one of the shooters. Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), overruled in part, Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

Defendant failed to prove by clear and convincing evidence that he received ineffective assistance of counsel where the record revealed that his counsel at trial felt that he could provide defendant with effective representation despite any previous conflicts. In his brief defendant acknowledged that his counsel was experienced and competent, and defendant provided no specific examples of how the trial court abridged his right to effective assistance of counsel by denying his motion to withdraw. State v. Troglin, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Sept. 14, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 94 (Tenn. Jan. 29, 2007), dismissed, Troglin v. Westbrooks, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 157955 (E.D. Tenn. Nov. 7, 2014).

Defendant did not establish deficient performance or prejudice with regard to counsel's representation because the record did not preponderate against a post-conviction court's findings that: (1) Trial counsel had prepared his entire trial based upon defendant's testimony; (2) Counsel and defendant had no conflicts regarding trial strategy; (3) Trial counsel was thoroughly prepared for trial and created whatever defense he could; and (4) Counsel fulfilled all of his obligations to defendant in an appropriate manner. Brewster v. State, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 21, 2008), dismissed, Brewster v. Carlton, — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 30982 (E.D. Tenn. Mar. 31, 2009).

Denial of inmate's motion to withdraw his guilty pleas was appropriate because he was neither pressured into entering his pleas by counsel nor misinformed about the length of service of his sentence; therefore, the inmate failed to meet his burden in showing that his pleas were unknowingly and involuntarily entered. Hearing v. State, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 22, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 483 (Tenn. June 23, 2008), cert. denied, Hearing v. Tennessee, 173 L. Ed. 2d 135, 129 S. Ct. 931, 555 U.S. 1113, 2009 U.S. LEXIS 13 (U.S. 2009), writ denied, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. June 3, 2014).

Dismissal of inmate's petition for post-conviction relief was proper because his argument that he was denied effective assistance of counsel since trial counsel failed to object when inmate's sentencing hearing was conducted more than 45 days after his guilty plea was entered was without merit because inmate failed to demonstrate that he was prejudiced in any way. State v. Grindstaff, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 21, 2008), rev'd, 297 S.W.3d 208, 2009 Tenn. LEXIS 718 (Tenn. Oct. 30, 2009).

Dismissal of inmate's petition for post-conviction relief was proper because he failed to prove his factual allegations by clear and convincing evidence as provided under T.C.A. § 40-30-110(f); although trial counsel should have made petitioner aware that if he pled guilty to or was found guilty of aggravated sexual battery he would serve his sentence or sentences in confinement, inmate failed to prove prejudice. State v. Grindstaff, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 21, 2008), rev'd, 297 S.W.3d 208, 2009 Tenn. LEXIS 718 (Tenn. Oct. 30, 2009).

Where petitioner pled guilty to second degree murder, the trial court advised him that he was pleading out of Range I and above his range to a Range II sentence; at the plea colloquy, petitioner also agreed that trial counsel had explained to him the effects on his sentence of pleading outside of his range. After he was sentenced to thirty-five yeas, petitioner was not entitled to post-conviction relief based on his ineffective assistance of counsel claim; the Court of Criminal Appeals of Tennessee held that trial counsel did not afford deficient representation and petitioner had not proven that he would not have pled guilty if not for trial counsel's representation. Collier v. State, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 1015 (Tenn. Crim. App. Oct. 9, 2008), dismissed, Collier v. Westbrook, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 76981 (M.D. Tenn. May 30, 2013).

Reversal of an order that concluded that a confidential informant was a material witness and that disclosure was warranted was appropriate because the informant was neither a participant in, nor a material witness to, the crimes charged in the case. Thus, they were not entitled to disclosure on that basis, and the failure of a defendant's lawyer to obtain the informant's name did not provide that defendant with a viable claim for the ineffective assistance of counsel. State v. Ostein, 293 S.W.3d 519, 2009 Tenn. LEXIS 520 (Tenn. Aug. 20, 2009).

Defendant did not show that counsel was ineffective where he did not prove by clear and convincing evidence that trial counsel failed to inform him that he would be required to register as a sexual offender and defendant was advised by court during the plea colloquy that the sentence was to be served at 100 percent. Ward v. State, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 14, 2009), rev'd, 315 S.W.3d 461, 2010 Tenn. LEXIS 635 (Tenn. July 7, 2010).

Dismissal of an inmate's petition for post-conviction relief was affirmed because counsel was not ineffective as a result of failing to request a jury instruction on second degree murder as a result-of-conduct offense because at the time of the trial the Pattern Jury Instructions included both a nature-of-conduct- and a result-of-conduct instruction and counsel was not deficient for failing to anticipate that there would be a change in the law in the future. Furthermore, counsel was not deficient by failing to claim that there was an alleged biased juror in a motion for a new trial because although the juror knew a witness in some capacity, there was no proof about the extent of the juror's knowledge of the witness and the juror was excused before the jury began deliberating. Frazier v. State, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 25, 2009), rev'd, 303 S.W.3d 674, 2010 Tenn. LEXIS 88 (Tenn. Feb. 18, 2010).

Court rejected petitioner's post-conviction contention that his guilty plea to the second-degree murder of his grandfather was involuntary due to the ineffective assistance of counsel based upon counsel's failure to pursue the defense of intoxication because the attorneys involved in petitioner's case testified that they did not feel, based upon the facts known, that the defense of accidental or involuntary intoxication was viable, and trial counsel testified that he so advised petitioner regarding the merits of pursuing the defense. Although petitioner maintained that the shooting was accidental, his own actions at the time of the shooting and later during the case would have seriously brought the theory of defense into question if presented to a jury because petitioner admittedly lied to the police, wiped the weapon used in the shooting clean of fingerprints, and hid the weapon; further, petitioner insisted upon testifying at the preliminary hearing, and his testimony was damaging to the theory because of his statements regarding the weapon. State v. Sorrells, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. June 1, 2009), dismissed, Sorrells v. Lindamood, — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 105593 (E.D. Tenn. Sept. 16, 2011).

Court rejected petitioner's post-conviction contention that his guilty plea to the second-degree murder of his grandfather was involuntary due to the ineffective assistance of counsel based upon counsel's failure to pursue the defense of intoxication. Petitioner testified that, at the time of the shooting, he was abusing his anxiety and depression medication and was mixing them with alcohol; if accepted as true, petitioner was voluntarily intoxicated at the time he shot the victim, and voluntary intoxication under T.C.A. § 39-11-503 was not a defense. State v. Sorrells, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. June 1, 2009), dismissed, Sorrells v. Lindamood, — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 105593 (E.D. Tenn. Sept. 16, 2011).

Although more evidence could have been presented about petitioner's medical and psychological conditions, that evidence was not so significantly different than what was presented at trial that petitioner was prejudiced. Van Tran v. Bell, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 146189 (W.D. Tenn. Sept. 30, 2010).

Counsel's alleged errors, whether individually or cumulatively, did not satisfy the standards for ineffective assistance of counsel under Strickland; petitioner ‘s conclusion that there was prosecutorial misconduct based on the prosecutor's argument that mitigating factors were “excuses” did not warrant habeas relief, and therefore, the correlating ineffective assistance of counsel claim was without merit. Van Tran v. Bell, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 146189 (W.D. Tenn. Sept. 30, 2010).

Counsel's failure to obtain evidence about petitioner's language comprehension did not prejudice him where the evidence established that the police officers were reasonable in their belief that plaintiff understood the Miranda rights read to him. Van Tran v. Bell, — F. Supp. 2d —, 2010 U.S. Dist. LEXIS 146189 (W.D. Tenn. Sept. 30, 2010).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, the inmate failed to prove that trial counsel was deficient in failing to pursue a motion to sever the inmate's offenses for trial because the inmate had told counsel before trial that the confidential informant who purchased the drugs from the inmate would not appear at trial; the attorney therefore decided not to pursue the motion for severance because, if the confidential informant did not testify, the state would have had a difficult, if not impossible, prosecution of the inmate. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, the inmate failed to prove that his counsel was ineffective for failing to move to suppress a tape recording provided by the state's informant; however, the inmate failed to prove that the motion would have been granted if presented and failed to prove deficient performance or prejudice from counsel's decision not to pursue the motion to suppress. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, although the inmate contended that his trial counsel was ineffective for not filing a motion for the arrest histories of the witnesses testifying at trial, the post-conviction court found that the state had no obligation to turn over arrest histories of witnesses and even if it were required, there was no proof that the histories would have changed the outcome of the case. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Dismissal of petitioner's, an inmate's, petition for post-conviction relief was appropriate because he failed to prove by clear and convincing evidence under T.C.A. § 40-30-110(f) that he received the ineffective assistance of counsel. In part, he failed to prove that had his trial counsel argued for concurrent sentences, that the sentences would have been ordered to be served concurrently; the trial court, in sentencing him, noted his lack of credibility, his lack of remorse, and his “atrocious” criminal history. Wilkerson v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 14, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1193 (Tenn. Dec. 8, 2010), cert. denied, Wilkerson v. Tennessee, 180 L. Ed. 2d 856, 131 S. Ct. 3035, 564 U.S. 1025, 2011 U.S. LEXIS 4727 (U.S. 2011).

Denial of the petition for post-conviction relief was affirmed because counsel was not ineffective in his representation of petitioner and petitioner's guilty pleas were knowingly and voluntarily entered; petitioner was clearly informed regarding the sentences he was receiving as a result of his guilty pleas. Osgood v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Aug. 20, 2010), dismissed, Osgood v. Steward, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 19524 (E.D. Tenn. Feb. 18, 2014).

Vacation of petitioner's, an inmate's, convictions was improper because the courts below erred in concluding that counsel performed deficiently by exclusively pursuing a theory of self-defense, T.C.A. § 39-11-611. Trial counsel spent over 100 hours on the case, worked with two other attorneys, discussed the case with the inmate many times, and generated an extensive trial memorandum, which included a comprehensive statement from the inmate; concluding that the inmate had no criminal intent when he entered the home and simply responded to the victim's attack, trial counsel pursued self-defense exclusively. Felts v. State, 354 S.W.3d 266, 2011 Tenn. LEXIS 1060 (Tenn. Nov. 10, 2011).

Vacation of petitioner's, an inmate's, convictions was improper because trial counsel did not perform deficiently when he changed strategies and advised the inmate not to testify after remarking in opening statement that the inmate would testify. Developments during trial altered the calculus of whether the inmate should testify. Felts v. State, 354 S.W.3d 266, 2011 Tenn. LEXIS 1060 (Tenn. Nov. 10, 2011).

Judgment denying the petition for post-conviction relief was affirmed because petitioner failed to show that he was provided ineffective assistance of counsel where: (1) Trial counsel testified that petitioner was aware of the evidence against him and had been told the range of punishment and trial counsel relayed the offer to the petitioner; and (2) Trial counsel stated that he was prepared to proceed with a trial but that he had advised petitioner that they would not prevail. Fowler v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. Apr. 6, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 668 (Tenn. July 13, 2011), dismissed, Fowler v. Donahue, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 136841 (E.D. Tenn. Sept. 29, 2014).

Counsel was not ineffective for failing to file a motion to suppress eyewitness identifications because neither counsel nor defendant's prior counsel identified a valid legal basis for such a motion. Counsel employed a reasonable strategy by intending to impeach the eyewitnesses as to their ability to identify defendant as the robber; at the post-conviction hearing, counsel testified that he interviewed one of the witnesses prior to trial and believed, based upon that conversation, that she would be unable to definitively identify defendant as the robber. Guartos v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 8, 2011), appeal dismissed, — S.W.3d —, 2011 Tenn. LEXIS 912 (Tenn. Sept. 23, 2011), dismissed, Guartos v. Colson, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 9049 (M.D. Tenn. Jan. 23, 2013).

Counsel was not ineffective for failing to play audio recordings of two witnesses statements for defendant prior to trial because there was an issue getting a recording system into the facility where defendant was incarcerated; such a problem was not unusual, and counsel in other cases have noted their inability to bring in media devices into the county jail and state prison facilities to play certain media such as tapes, CDs, and DVDs. Nonetheless, counsel testified that he discussed the content of the interviews with his client and that he was thoroughly aware of the contents of the interview and prepared to question and cross-examine the witnesses about their identification of defendant; accordingly, defendant did not demonstrate by clear and convincing evidence that his trial counsel was ineffective for not playing the tapes for him personally or that he was prejudiced by any alleged deficiency. Guartos v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 8, 2011), appeal dismissed, — S.W.3d —, 2011 Tenn. LEXIS 912 (Tenn. Sept. 23, 2011), dismissed, Guartos v. Colson, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 9049 (M.D. Tenn. Jan. 23, 2013).

Counsel was not ineffective in failing to obtain defendant's Miami mug shot because defendant admitted that he never told counsel about the mug shot taken shortly before the criminal offense at issue. Defendant reviewed the witness identifications and descriptions of the suspects that were provided through discovery, and yet defendant never told counsel that his hair length was different than the witness descriptions and that a mug short taken shortly before the offense at issue would help establish that his hair was different and inconsistent with witness descriptions at the time the crime was committed. Guartos v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 8, 2011), appeal dismissed, — S.W.3d —, 2011 Tenn. LEXIS 912 (Tenn. Sept. 23, 2011), dismissed, Guartos v. Colson, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 9049 (M.D. Tenn. Jan. 23, 2013).

Counsel was not ineffective in failing to obtain a newspaper article in which a witness described her observations of the shooting from inside of her vehicle because there was no effective difference between the witness's trial testimony and her statement as it appeared in the newspaper. Guartos v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 8, 2011), appeal dismissed, — S.W.3d —, 2011 Tenn. LEXIS 912 (Tenn. Sept. 23, 2011), dismissed, Guartos v. Colson, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 9049 (M.D. Tenn. Jan. 23, 2013).

Petitioner failed to establish that he was prejudiced by counsel's deficient performance where petitioner's testimony was consistent with the version of the facts he reported to friends on the day of the murder and, with only one minor discrepancy, was consistent with the version of events he provided to the doctor. Mobley v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 637 (Tenn. Crim. App. Aug. 18, 2011), aff'd in part, rev'd in part, 397 S.W.3d 70, 2013 Tenn. LEXIS 200 (Tenn. Feb. 21, 2013).

Trial counsel's assistance was not ineffective because: (1) it did not appear from the record that petitioner raised the issue of the witness's mental health issues with his trial counsel; and (2) although counsel's strategy ultimately failed, counsel's decision to attend the interview without a witness or recording device did not appear to us to have been deficient at the time it was made. Hodge v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Aug. 26, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 101 (Tenn. Feb. 15, 2012), cert. denied, Hodge v. Tennessee, 183 L. Ed. 2d 688, 133 S. Ct. 43, 567 U.S. 941, 2012 U.S. LEXIS 4708 (U.S. 2012).

Denial of post-conviction relief was affirmed because petitioner's trial counsel testified that the expert witness used by the defense at trial had a very strong opinion that the victim's injuries were the result of a fall down steps at the home on the day she had to be taken to the hospital. This was absolutely consistent with statements made by petitioner prior to trial and with his testimony at trial. Latham v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 6, 2012), dismissed, Latham v. Colson, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 19809 (M.D. Tenn. Feb. 13, 2013).

Petitioner did not receive ineffective assistance due to trial counsel's failure to object to the jury's verdict because the jury convicted petitioner of possession of cocaine with intent to sell and possession of cocaine with intent to deliver, T.C.A. § 39-17-417(a)(4), which were based on the same operative facts, facts established only a single criminal offense; the trial court merged the two findings of guilt into a single conviction and correctly entered a single judgment of conviction. Taylor v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 7, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 367 (Tenn. May 16, 2012), cert. denied, Taylor v. Tennessee, 2012 U.S. LEXIS 7724, 568 U.S. 924, 133 S. Ct. 382, 184 L. Ed. 2d 226 (U.S. 2012).

Petitioner was not entitled to post-conviction relief because he did not receive ineffective assistance due to trial counsel's failure to request that the state be required to make an election of offenses since the arresting officer testified as to only a single drug transaction between petitioner and another individual; jury unanimity concerns are simply not implicated where the jury is considering proof of only one offense. Taylor v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 7, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 367 (Tenn. May 16, 2012), cert. denied, Taylor v. Tennessee, 2012 U.S. LEXIS 7724, 568 U.S. 924, 133 S. Ct. 382, 184 L. Ed. 2d 226 (U.S. 2012).

Trial counsel was not ineffective for failing to move to withdraw the inmate's guilty plea in a drug case after petitioner indicated that he wanted to do so if it would not affect his sexual offense case, where trial counsel explained that such a motion would affect the sexual offense case; while counsel should have determined if petitioner still wanted to pursue a withdrawal, petitioner failed to show prejudice as a result. Burgess v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 566 (Tenn. Crim. App. July 31, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 858 (Tenn. Nov. 20, 2012), cert. denied, Burgess v. Tennessee, 185 L. Ed. 2d 625, 133 S. Ct. 1642, 568 U.S. 1254, 2013 U.S. LEXIS 2482 (U.S. 2013).

Although trial counsel were deficient in failing to present the proper witness to authenticate the photograph, the deficiency did not result in prejudice; no evidence was introduced at the post-conviction hearing that would indicate that even if this footprint photograph was reviewed by the jury that it would impeach the State's case or indicate that the petitioner was not the person who killed the victim. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

Petitioner failed to adduce any proof at the evidentiary hearing to support his claim that counsel was burdened by an actual conflict of interest; counsel revealed to petitioner in writing his previous representation of the witness and subsequent withdrawal due to the witness's threats against counsel. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

Absent proof regarding when the threats were made, who other than petitioner conveyed the threats, and the circumstances under which they were delivered, the court could not determine whether a reasonable probability existed that the trial court would have sustained a hearsay objection to the testimony at trial. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

Even if trial counsel had pursued the motion to suppress based upon a Payton violation, the motion to suppress petitioner's statement would have been denied because the police officers had probable cause to arrest petitioner. Stout v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 23, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 36 (Tenn. Jan. 8, 2013), cert. denied, Stout v. Tennessee, 186 L. Ed. 2d 226, 133 S. Ct. 2776, 569 U.S. 1022, 2013 U.S. LEXIS 4183 (U.S. 2013).

Trial counsel did not render ineffective assistance of counsel by failing to call a witness, as trial counsel investigated the witness and made the informed decision that the witness's testimony would be detrimental; if counsel had called the witness, the State would have been able to question the witness extensively and develop evidence of petitioner's premeditation. Bond v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Aug. 31, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 97 (Tenn. Jan. 22, 2013), dismissed, Bond v. Sexton, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 11613 (M.D. Tenn. Jan. 30, 2014).

Trial counsel was not ineffective for failing to present evidence that the methods by which the State's expert witness reached a conclusion of arson had been discredited by the scientific community, as the scientific understanding of burn patterns was evolving and unsettled and the scientific developments that petitioner cited did not necessarily exclude the possibility that the expert could have reached the conclusion of arson using the expert's methods. Garrett v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Sept. 5, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 205 (Tenn. Feb. 25, 2013), dismissed, Garrett v. Carpenter, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 37123 (M.D. Tenn. Mar. 21, 2016).

Denial of post-conviction relief was affirmed because petitioner failed to show that his trial counsel rendered ineffective assistance of counsel; counsel's testimony established that counsel communicated with petitioner extensively and visited him on four occasions prior to the plea hearing, that counsel thoroughly reviewed the charges and the evidence with petitioner, and that counsel discussed with petitioner the gravity of the charges and the potential ramifications of proceeding to trial. Vaughn v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 748 (Tenn. Crim. App. Sept. 19, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 177 (Tenn. Feb. 15, 2013), dismissed, Vaughn v. Taylor, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 17770 (M.D. Tenn. Feb. 12, 2014).

Counsel was not ineffective in failing to conduct a Momon hearing before defendant testified because immediately before defendant testified at trial, he was present when the trial court stated to counsel that defendant “does not have to testify if he doesn't want to, and if he wants to, no one can keep him from testifying.” At the post-conviction hearing, counsel testified in no uncertain terms that he left the decision of whether to testify to defendant. Mobley v. State, 397 S.W.3d 70, 2013 Tenn. LEXIS 200 (Tenn. Feb. 21, 2013).

Petitioner was not entitled to post-conviction relief; counsel was not ineffective because petitioner was aware of the detainer ICE had already placed on him and knew that he would be subject to immediate deportation upon entering the guilty plea and trial counsel fulfilled her obligation by advising petitioner that the guilty plea could carry a risk of adverse immigration consequences. Garcia v. State, 425 S.W.3d 248, 2013 Tenn. LEXIS 1012 (Tenn. Dec. 23, 2013).

Defendant was not entitled to post-conviction relief because, pursuant to Tenn. Const. art. I, § 9, defendant was not prejudiced by counsel's failure to request an instruction on the lesser-included offense of theft where it would not have been permissible for a jury to have pondered the issue of whether defendant was guilty of theft after it declined to convict defendant of mere robbery. Payne v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 8, 2013), overruled in part, Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Denial of post-conviction relief was affirmed because petitioner failed to show the ineffective assistance of counsel; not only did petitioner fail to present the investigator at the evidentiary hearing but he also failed to enter the investigator's summary of her interview with the victim into evidence at the post-conviction hearing. Dodson v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Mar. 21, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 571 (Tenn. June 13, 2013), cert. denied, Dodson v. Tennessee, 187 L. Ed. 2d 376, 134 S. Ct. 522, — U.S. —, 2013 U.S. LEXIS 8028 (U.S. 2013).

Denial of post-conviction relief was affirmed because petitioner failed to show that he received ineffective assistance of counsel where counsel's deficiencies, which related to the failure to convey the plea offer in a timely manner, the failure to present evidence that petitioner and the victim were “hugged up” on the morning prior to the shooting, the failure to present evidence challenging the cause and source of the victim's burns and bruises and to investigate her character, the failure to prevent testimony regarding devil worship, and the failure to request a jury instruction on ignorance or mistake of fact, when considered alone or cumulatively, did not result in prejudice in light of the other evidence presented at trial. Nesbit v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Mar. 28, 2013), aff'd, 452 S.W.3d 779, 2014 Tenn. LEXIS 917 (Tenn. Nov. 14, 2014).

Denial of post-conviction relief was affirmed because petitioner failed to show that he received ineffective assistance of counsel; although trial counsel should have conveyed the plea offer in a timely manner, petitioner presented no credible evidence that he would have accepted the plea and not demanded a trial had he learned of the plea offer sooner. Nesbit v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Mar. 28, 2013), aff'd, 452 S.W.3d 779, 2014 Tenn. LEXIS 917 (Tenn. Nov. 14, 2014).

Petitioner failed to meet his burden of showing that he was denied effective assistance of counsel at trial by counsel's failure to request a facilitation instruction as the evidence did not support a facilitation instruction. The evidence at trial established that petitioner had the intent, at a minimum, to promote or assist in the commission of the sale of a Schedule I controlled substance within a school zone. Bryant v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 702 (Tenn. Crim. App. Aug. 16, 2013), modified, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Petitioner failed to meet his burden of showing that he was denied effective assistance of counsel at trial by counsel's failure to request a facilitation instruction as counsel's failure to request such an instruction was not prejudicial. A reasonable jury would not have convicted petitioner of facilitation instead of the charged offenses because petitioner knowingly committed the offense of sale of a Schedule I controlled substance, which took place within a school zone. Bryant v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 702 (Tenn. Crim. App. Aug. 16, 2013), modified, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Petitioner failed to meet his burden of showing that he was denied effective assistance of counsel at trial by counsel's failure to request a facilitation instruction as counsel's decision not to pursue such an instruction was a strategic one designed to have petitioner acquitted of the charged offenses based on the defense of entrapment. Bryant v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 702 (Tenn. Crim. App. Aug. 16, 2013), modified, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Post-conviction relief was improper as counsel was not ineffective for failing to meet with petitioner; counsel met with petitioner four times at petitioner's place of incarceration and multiple times during court appearances, and during these meetings counsel reviewed the discovery with petitioner and discussed weaknesses in the case. White v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Aug. 21, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 345 (Tenn. Apr. 10, 2014), dismissed, White v. Johnson, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 136149 (M.D. Tenn. Sept. 26, 2014).

Petitioner failed to establish by clear and convincing evidence that counsel performed deficiently by not challenging the indictment prior to the petitioner pleading guilty; counsel was not questioned about her understanding of the indictment or as to why she did not raise any challenge to it. Naillon v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Sept. 24, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 128 (Tenn. Feb. 12, 2014).

Defendant's petition for post-conviction relief was properly denied because he did not show ineffective assistance of counsel as he failed to prove by clear and convincing evidence that he did not know of his right to appeal, and he failed to prove by clear and convincing evidence that he did not waive his right to appeal; and trial counsel's failure to file a written waiver of appeal was a fact that the trial court properly considered in the ineffective assistance of counsel claim, but that fact, in and of itself, was insufficient to show deficient performance. Arroyo v. State, 434 S.W.3d 555, 2014 Tenn. LEXIS 370 (Tenn. May 21, 2014).

Post-conviction court properly found that defendant did not prove that his trial counsel were ineffective because, even if trial counsel did not call or interview certain fact witnesses, did not investigate defendant's diminished capacity, opened the door to evidence of satanic worship, did not have an expert testify in the guilt phase of the trial, and did not present a plea offer sooner, defendant did not show that the outcome of the trial would have been different. Nesbit v. State, 452 S.W.3d 779, 2014 Tenn. LEXIS 917 (Tenn. Nov. 14, 2014), cert. denied, Nesbit v. Tennessee, 191 L. Ed. 2d 734, 135 S. Ct. 1853, — U.S. —, 2015 U.S. LEXIS 2644 (U.S. 2015).

Inmate failed to show by clear and convincing evidence that counsel's decision not to file a motion to compel the informant's identity constituted representation that fell below the standard of reasonableness and was not a reasonable strategy as testified to by counsel. Reed v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 878 (Tenn. Crim. App. Sept. 4, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 48 (Tenn. Jan. 15, 2015).

Trial court erred in granting post-conviction relief to defendant as he failed to show that he received ineffective assistance of counsel because, although counsel was deficient in failing to investigate defendant's mental health condition, defendant failed to show prejudice as the record did not show that had counsel obtained defendant's mental health records that he would not have pleaded guilty; and defendant failed to show a reasonable probability that the mental health records would have changed the outcome of a trial had defendant not pleaded guilty as no evidence existed showing that defendant had viable grounds to present a diminished capacity or other affirmative defense. Covert v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 893 (Tenn. Crim. App. Sept. 16, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 142 (Tenn. Feb. 12, 2015).

Defendant did not show that trial counsel performed deficiently regarding the mention of marijuana in a Tennessee Bureau of Investigation report, as trial counsel made a strategic decision not to request a continuance because he believed he understood the report and could address any concerns with the report on cross-examination. State v. Freeman, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 963 (Tenn. Crim. App. Oct. 16, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 151 (Tenn. Feb. 12, 2015).

Judgment denying post-conviction relief was proper, as petitioner failed to establish that he received ineffective assistance of counsel; although petitioner claimed that the State's Brady violation prevented him from taking the stand to testify in his own defense, petitioner's decision not to testify following the admission of a witness's statement to police was a voluntary one, necessitated by his insistence on an alibi defense, and not the result of ineffective assistance of counsel. Motley v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 964 (Tenn. Crim. App. Oct. 3, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 71 (Tenn. Jan. 16, 2015).

Counsel was not ineffective for failing to meet with petitioner or keep him informed because the record reflected that counsel met with petitioner, reviewed discovery, and informed him about the charges against him and the trial process. Martin v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. Nov. 17, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 209 (Tenn. Mar. 11, 2015).

Counsel was not ineffective for failing to order a mental health examination because petitioner testified that he had an understanding of the roles of the various parties and witnesses, and that he understood the charges against him. Martin v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. Nov. 17, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 209 (Tenn. Mar. 11, 2015).

Counsel was not ineffective for failing to develop a witness to testify because an assistant public defender went to the motel to interview the owner who discovered the victim's body, the owner was extensively questioned by the police, and defendant failed to present witnesses at the post-conviction hearing. Martin v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. Nov. 17, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 209 (Tenn. Mar. 11, 2015).

Counsel was not ineffective for failing to review the DNA report because counsel raised the difference between the original DNA report and the expert's testimony at trial, and because the jury would hear petitioner's statement wherein he admitted that the victim scratched his neck, petitioner's being a minor contributor to the DNA profile developed from the victim's fingernail scrapings would not be surprising to either party. Martin v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. Nov. 17, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 209 (Tenn. Mar. 11, 2015).

Defendant failed to present clear and convincing evidence that trial counsel was ineffective for failing to call several character witnesses at trial to testify as to defendant's good character because counsel was extremely concerned that presenting character witnesses would have led to the State of Tennessee's use of defendant's prior convictions to rebut the character evidence. Hurd v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1041 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 238 (Tenn. Mar. 12, 2015).

Defendant failed to present clear and convincing evidence that trial counsel was ineffective for failing to obtain certain discovery materials because defendant failed to prove that there were any medical records that trial counsel failed to obtain. Furthermore counsel received the sexual battery victim's medical examination record and an interview transcript, and asked to interview the victim, but was denied. Hurd v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1041 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 238 (Tenn. Mar. 12, 2015).

Defendant failed to prove that defendant was unable to effectively communicate with trial counsel because defendant's ex-spouse testified that counsel met with defendant five to six times, that the ex-spouse perceived no difficulties in communication, and that neither defendant, nor the ex-spouse expressed concerns about counsel. Counsel testified to meeting with defendant whenever requested and discussing the charges against defendant, the pros and cons of calling character witnesses, and potential strategies. Hurd v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1041 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 238 (Tenn. Mar. 12, 2015).

Defendant failed to prove by clear and convincing evidence that there was a reasonable probability that the outcome of defendant's trial would have been different, but for defense counsel's failure to obtain either police dispatch logs, vehicle maintenance logs for a patrol car, and a dashboard camera video recording. Because no prejudice was found, the appellate court did not need to address whether trial counsel's performance was deficient. Patrick v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1067 (Tenn. Crim. App. Nov. 24, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 232 (Tenn. Mar. 12, 2015).

Inmate failed to show actual prejudice by the use of stand-in counsel during a portion of jury deliberations and the taking of the verdict, and the record did not establish any such prejudice, and thus, the inmate failed to establish that he was denied the effective assistance of counsel under Strickland. Johnson v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1095 (Tenn. Crim. App. Dec. 8, 2014).

Post-conviction relief based on the alleged ineffective assistance of counsel was properly denied, as the testimony of both counsel and the inmate confirmed that counsel met with the inmate on multiple occasions prior to his guilty plea hearing and discussed with the inmate the charges against him, possible sentences he would face if convicted, and the terms of the guilty plea agreement, and the inmate assured the court that he understood his rights and was entering a guilty plea voluntarily. Braden v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1102 (Tenn. Crim. App. Dec. 9, 2014).

Decision denying post-conviction relief based on ineffective assistance of counsel was proper, as trial counsel's decision not to call an officer to testify was a reasonable tactical decision and did not amount to deficient performance; counsel did not want the officer to be able to testify to a prior statement of the victim. Frith v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1109 (Tenn. Crim. App. Dec. 10, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 343 (Tenn. Apr. 13, 2015).

Even if trial counsel failed to advise the inmate not to discuss his case with other inmates, the inmate failed to prove that counsel was ineffective, as he failed to show he was prejudiced by the testimony of another inmate. Brunner v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1120 (Tenn. Crim. App. Dec. 15, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 336 (Tenn. Apr. 13, 2015).

Trial counsel's decision to withdraw the motion to suppress was a tactical decision, which the inmate failed to prove fell below the standard of a competent criminal defense attorney, and thus, the inmate was not entitled to post-conviction relief based on the decision. Brunner v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1120 (Tenn. Crim. App. Dec. 15, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 336 (Tenn. Apr. 13, 2015).

Inmate was not entitled to post-conviction relief based on trial counsel's failure to obtain all discoverable material, specifically an analysis of the pills, as the inmate never claimed the pills were not a controlled substance and knew no analysis results were provided prior to pleading guilty. King v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1127 (Tenn. Crim. App. Dec. 17, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 315 (Tenn. Apr. 10, 2015).

Inmate was not entitled to post-conviction relief based on trial counsel's failure to inform him of the proper classification of the charge, because while counsel initially misinformed the inmate, counsel informed the inmate of the correct classification of the charge before the guilty plea hearing. King v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1127 (Tenn. Crim. App. Dec. 17, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 315 (Tenn. Apr. 10, 2015).

Petitioner failed to show that he received ineffective assistance of counsel due counsel's failure to object to the State's leading questions where counsel made strategic and tactical decisions not to object in order to avoid alienating the jury or drawing attention to negative facts that hurt petitioner, and the questions to a confidential informant had actually damaged the informant's credibility. Walker v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1129 (Tenn. Crim. App. Dec. 17, 2014).

Post-conviction counsel ably pursued petitioner's claims of ineffective assistance by way of testimonial proof and oral argument and thus, was not ineffective. Johnson v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1160 (Tenn. Crim. App. Dec. 29, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 448 (Tenn. May 18, 2015), cert. denied, Johnson v. Tennessee, 193 L. Ed. 2d 235, 136 S. Ct. 324, — U.S. —, 2015 U.S. LEXIS 6404 (U.S. 2015).

Appellate counsel was not ineffective for failing to raise the issue of whether the trial court erred in denying trial counsel's motion to withdraw, as there was substantial evidence to support the trial court's ruling based on the evidence presented at the withdrawal hearing and thus, petitioner was not prejudiced by appellate counsel's failure. Johnson v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1160 (Tenn. Crim. App. Dec. 29, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 448 (Tenn. May 18, 2015), cert. denied, Johnson v. Tennessee, 193 L. Ed. 2d 235, 136 S. Ct. 324, — U.S. —, 2015 U.S. LEXIS 6404 (U.S. 2015).

Trial counsel's admission that he was unable to provide zealous representation because of threats from petitioner did not create an improper conflict of interest warranting a presumption of prejudice and since nothing indicated that trial counsel did not provide effective assistance and representation, petitioner was not entitled to post-conviction relief based on this allegation. Johnson v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1160 (Tenn. Crim. App. Dec. 29, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 448 (Tenn. May 18, 2015), cert. denied, Johnson v. Tennessee, 193 L. Ed. 2d 235, 136 S. Ct. 324, — U.S. —, 2015 U.S. LEXIS 6404 (U.S. 2015).

Counsel's decision regarding the statements from the Department of Children Services (DCS) records was a reasonably based trial strategy, based on adequate preparation; outside of the testimony of the victim's aunt and petitioner, the only evidence that contradicted the victim's trial testimony was her statement to a DCS investigator, and thus counsel's decision to admit the statements from the DCS records did not amount to ineffective assistance of counsel, even if portions of the statements were consistent with the victim's testimony at trial, and dismissal of the post-conviction relief petition was affirmed. Dale v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1162 (Tenn. Crim. App. Dec. 29, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 260 (Tenn. Mar. 16, 2015).

Although trial counsel did not attempt to introduce a potentially favorable hearsay statement by a police officer, when the officer allegedly stated that the officer did not pull the trigger on defendant's rifle when the gun discharged while in the officer's hands, counsel's action did not amount to deficient performance that fell below the standard of reasonableness because counsel presented substantial evidence that the officer did not pull the trigger when defendant's gun discharged. Kendrick v. State, 454 S.W.3d 450, 2015 Tenn. LEXIS 9 (Tenn. Jan. 16, 2015).

Trial counsel's decision not to consult an expert to rebut the anticipated testimony of a prosecution firearms expert did not amount to deficient performance that fell below the standard of reasonableness because counsel made a reasonable tactical decision to construct an accidental firing of a gun defense around a police officer's mishap with defendant's rifle, after the shooting of defendant' spouse, when the rifle discharged while in the officer's hands. Kendrick v. State, 454 S.W.3d 450, 2015 Tenn. LEXIS 9 (Tenn. Jan. 16, 2015).

Trial counsel's decision to forgo petitioner's proposed alibi witnesses was a tactical decision and did not constitute deficient performance; counsel testified that he felt the testimony of the alibi witnesses would hurt petitioner more than help him. Malone v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 13 (Tenn. Crim. App. Jan. 8, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 438 (Tenn. May 19, 2015).

Trial counsel's performance was not deficient, as counsel was able to negotiate the State's offer from 10 years as a Range II offender down to four years as a Range I offender, and trial counsel explained each new offer to petitioner. Mitchell v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 12, 2015).

Decision denying post-conviction relief on the basis of ineffective assistance of counsel was proper, as trial counsel had no basis to object to the testimony of a co-defendant as a violation of the sequestration rule; the co-defendant was a co-defendant during the first two days of trial, and could not have been excluded. Smith v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 24 (Tenn. Crim. App. Jan. 13, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 419 (Tenn. May 15, 2015).

Post-conviction court properly determined that petitioner had not been denied effective assistance of counsel where the trial court's actions with allowing the tentatively selected jury to separate being sworn were consistent with established precedent, and thus, it was not error for trial counsel not to object to those actions. Alexander v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 330 (Tenn. Apr. 13, 2015).

Counsel negotiated directly with the district attorney to secure concurrent 12-year sentences to be served at 35 percent, and counsel testified that petitioner was happy to receive a sentence well-below the minimum sentence length and release eligibility percentage he would have received had he gone to trial and been convicted; there was no evidence that counsel's performance was deficient or that petitioner's guilty pleas were not entered voluntarily, and the dismissal of the petition for post-conviction relief was affirmed. Perry v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 15, 2015).

Post-conviction court did not err in denying defendant's petition for post-conviction relief, alleging that his guilty plea was the result of ineffective assistance of counsel at trial, because defendant was fully informed of the terms of the plea agreement and the potential for consecutive sentencing at the sentencing hearing; defendant was apprised of the evidence against him and given thorough counsel about his options; the trial court expressly informed defendant and his co-defendant of the sentencing range for each offense; and, during the plea colloquy, defendant denied being pressured into accepting the plea agreement. Dodson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. Jan. 20, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 295 (Tenn. Apr. 10, 2015).

Inmate was not entitled to post-conviction relief, as trial counsel was not ineffective for failing to file a baseless motion, the inmate failed to offer any evidence that the outcome would have been different had counsel heeded the inmate's request to seek a reduction in bond, and the the inmate admitted that counsel informed him he would be questioned about his criminal history if he chose to testify. Leggs v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 408 (Tenn. May 14, 2015).

Inmate failed to show that counsel was deficient for agreeing to rejoin the charges, as he presented no evidence at the post-conviction hearing as to the substance of trial counsel's advice with respect to the decision to rejoin, merely stating that counsel gave him inaccurate advice. Gooch v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 80 (Tenn. Crim. App. Feb. 4, 2015).

Inmate failed to present any evidence, other than to claim that trial counsel made inconsistent statements about preparedness, to support a claim that counsel was not prepared when he moved to rejoin the charges and thus, his claim of ineffective assistance failed. Gooch v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 80 (Tenn. Crim. App. Feb. 4, 2015).

Trial counsel was not deficient for failing to object to leading questions asked during the State's direct examination of the confidential informant, as counsel made a strategic decision to expose the weakness of the evidence the State presented at trial. Gooch v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 80 (Tenn. Crim. App. Feb. 4, 2015).

Trial counsel was not deficient for failing to investigate an alibi defense, as the inmate never told counsel about any possible alibi witnesses and the purported alibi witness never told law enforcement that the inmate was at her home on the day of the charged offense. Gooch v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 80 (Tenn. Crim. App. Feb. 4, 2015).

Petitioner failed to prove that he received ineffective assistance of counsel due to trial counsel's failure to preserve photographs trial counsel took of him after his arrest because the trial court implicitly found that no marks or blemishes were on petitioner at the time photographs were taken; therefore, even if the device with the digital photographs had not been stolen, the photographs would not have shown any evidence of physical abuse to petitioner. Garrett v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 499 (Tenn. June 11, 2015), cert. denied, Garrett v. Tennessee, 136 S. Ct. 549, 193 L. Ed. 2d 439, 2015 U.S. LEXIS 7501, 84 U.S.L.W. 3300 (2015).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because defendant failed to prove that trial counsel did not communicate the amount of restitution as he testified that the Assistant District Attorney General told him two of the cars were worth $1,000 each and that the third car was worth $2,500, and it was undisputed that, after defendant's first failure to appear, he knew the amount of restitution was $4,500; counsel was not ineffective for failing to file a motion to vacate the plea as counsel denied ever receiving letters from defendant stating that he wanted to withdraw his plea; and defendant did not prove that counsel failed to effectively communicate with him. Jobe v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 88 (Tenn. Crim. App. Feb. 6, 2015).

Petitioner could not establish that trial counsel was ineffective in representing multiple clients or that petitioner's pleas were not knowing and voluntary due to counsel's representation of multiple clients; there was no actual conflict, his performance in negotiating petitioner's plea was not affected by his representation of codefendant, no prejudice was shown, and petitioner was not entitled to relief. Cunningham v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. Feb. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 409 (Tenn. May 15, 2015).

Petitioner failed to establish that his trial counsel performed deficiently by failing to investigate his cases or communicate with petitioner, and there was no reasonable probability that, absent any errors, petitioner would not have pleaded guilty to the charges in two new indictments; counsel explained the charges to petitioner and reviewed all discovery, and he did not wait for formal discovery responses because additional evidence could have increased petitioner's exposure, and he was not entitled to post-conviction relief. Cunningham v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 95 (Tenn. Crim. App. Feb. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 409 (Tenn. May 15, 2015).

In the context of defendant's claim that he was entitled to withdraw his guilty pleas, there was no evidence beyond his testimony that trial counsel misled him by promising him that he would serve his sentences in a federal facility, and there was nothing in the plea agreement stating this, and thus the proof did not support defendant's claim that trial counsel was ineffective for misleading him about where he would serve his sentence. Barnette v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 13, 2015).

Post-conviction court did not err in denying defendant's petition seeking post-conviction relief alleging ineffective assistance of counsel because counsel asked his investigator to investigate a possible alibi defense for defendant; the investigator's notes revealed that he spoke with the hotel manager, who said that defendant checked into the hotel on March 2, 2009 and checked out on March 9, 2009; the hotel manager did not recall that defendant ever had an electronic key card, which showed that attempts were made to obtain records to establish an alibi, but such records did not exist; and defendant did not offer any proof at the hearing that the alibi evidence from the electronic key card existed or was exculpatory. Blanchard v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 18, 2015).

Counsel was not ineffective for failing to present witnesses because his strategy, to cross-examine the State's witnesses to develop his theory of self-defense, rather than to call the witnesses on behalf of petitioner, was an informed decision based on a belief that juries tended to believe the State's experts, rather than those called to testify on behalf of the defense. Counsel sufficiently prepared for trial through multiple meetings with petitioner and their discussions about counsel's strategy and the theory of self-defense which counsel argued in front of the jury. Wagner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 117 (Tenn. Crim. App. Feb. 20, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 490 (Tenn. June 12, 2015).

Defendant's petition for post-conviction relief was properly denied because trial counsel was not ineffective as he did discuss with defendant both the opportunity to give a statement in allocution and the right to testify at the sentencing hearing; trial counsel testified that he advised defendant against testifying or making a statement and that defendant agreed with his advice; it was defendant's decision not to testify; and, even if trial counsel failed to inform defendant of his statutory right to allocution, defendant failed to show prejudiced as there was ample evidence in the record to support the sentencing court's decision that defendant's sentences should run consecutively. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 529 (Tenn. June 15, 2015).

Defendant was not deprived of effective counsel, as counsel's decisions throughout a codefendant's testimony, including mentioning charges that were pending against petitioner or other crimes that he had committed, may have been ill-advised, but did not rise to the level of incompetent representation. Osborne v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 26, 2015).

Counsel was not ineffective regarding preparation because counsel focused on the defense that petitioner's daughter started the fire, counsel interviewed petitioner's daughter, and counsel presented petitioner's daughter, who admitted to starting the fire, and another family member, who discussed the daughter's burning incidents. Washington v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 140 (Tenn. Crim. App. Feb. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 597 (Tenn. July 20, 2015).

Counsel was not ineffective for failing to object to admission of a recording of petitioner's statement because petitioner was advised of her rights and waived them before giving any statements, and no evidence showed her waiver was involuntary, unknowing, or coerced; the prosecutor agreed to redact portions related to another fire. Washington v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 140 (Tenn. Crim. App. Feb. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 597 (Tenn. July 20, 2015).

Counsel was not ineffective for failing to call petitioner's doctor because petitioner wanted to blame her daughter for the fire, and the testimony would not have assisted the defense because counsel pursued a trial strategy involving petitioner's daughter. Washington v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 140 (Tenn. Crim. App. Feb. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 597 (Tenn. July 20, 2015).

Counsel was not ineffective regarding requesting a mistrial after a juror's disclosure that his foster child started fires, because the record reflected that counsel was in favor of the juror remaining on the jury panel. She thought he might understand petitioner's issues, empathize with her situation, and possibly affect the verdict to petitioner's benefit. Washington v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 140 (Tenn. Crim. App. Feb. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 597 (Tenn. July 20, 2015).

Inmate did not show ineffective assistance of counsel under the Tennessee and Federal Constitutions as counsel's testimony that they informed the inmate before he entered his guilty pleas that the appellate court could determine the certified question was not dispositive of the charges against him and dismiss the appeal was credited, and they presented a letter to the inmate that documented the advice, which the inmate signed before entering his guilty pleas; as the inmate pled guilty knowing that the appellate court might not reach the merits of his appeal, he failed to show that he would not have pled guilty absent the ability to appeal the certified question. Carter v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 147 (Tenn. Crim. App. Mar. 3, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 491 (Tenn. June 11, 2015).

Trial counsel testified that he discussed with petitioner the applicable sentences, and petitioner failed to establish that trial counsel performed deficiently. Van Blarcom v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 12, 2015).

Denial of post-conviction relief was proper, as petitioner's claim that he received ineffective assistance of counsel due to trial counsel's failure to call him to testify in his own defense failed; both trial counsel and co-counsel opined that it would not have been in petitioner's best interest to testify at trial, and trial counsel testified that petitioner's “goose was cooked” if the jury identified his voice as the one in a recording. Bush v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 486 (Tenn. June 11, 2015), cert. denied, Bush v. Tennessee, 193 L. Ed. 2d 166, 136 S. Ct. 220, — U.S. —, 2015 U.S. LEXIS 4902 (U.S. 2015).

Inmate's claim that counsel was ineffective for allowing him to accept a plea deal lacked merit, as the evidence showed that trial counsel discussed the plea agreement with the inmate and explained that if he chose not to accept the deal he could receive a hearing on the mater, and counsel assuring the inmate that counsel would contact the jail nurse if the inmate chose to decline the deal and proceed with the charged. Lester v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Mar. 31, 2015).

Because the right to effective assistance of counsel does not mean that a defendant cedes all participation in his defense to the discretion of trial counsel, a defendant has a right to choose a defense strategy and to reject counsel's advice regarding adverse consequences of that strategy; trial counsel made a strategic and reasonable decision to craft his trial strategy around the defense of mistaken identity in accordance with defendant's wishes, and defendant did not meet his burden to prove that counsel performed deficiently. State v. Newton, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Apr. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 576 (Tenn. July 17, 2015).

Trial counsel matched his theory of defense to the testimony that defendant indicated he was preparing to give at trial, but after hearing the State's proof, defendant decided not to testify; the trial court credited the testimony of counsel that defendant made the decision not to testify, nothing preponderated against that finding, and trial counsel did not perform deficiently, and even if he did, defendant failed to prove that he suffered prejudice as a result, as the evidence presented was overwhelming. State v. Newton, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Apr. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 576 (Tenn. July 17, 2015).

Petitioner's account to his attorneys of the amount of alcohol he consumed on the night of the crime, his account of his customary alcohol consumption, and counsel's personal observations of the petitioner on the night of the crime did not support a finding of deficient performance in the investigation of or consultation with an expert regarding petitioner's alcohol use for the purpose of supporting a mental health defense. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Failure to consult a mental health expert and to obtain an evaluation of petitioner was deficient performance, as the State was required to prove a premeditated, intentional killing, but defendant was not prejudiced because the doctor's testimony was not admissible and prompt consultation would not have affected the defense; he only said it was a possibility that due to a mental disease, petitioner lacked capacity, and evidence of certain diagnoses was not relevant and admissible without an opinion regarding the ultimate issue of petitioner's capacity to form the required mens rea, such that he was not entitled to post-conviction relief. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; he failed to prove that his attorneys' investigation, preparation, or trial performance was inadequate, or that the attorneys were ineffective in the preparation for and cross-examination of a particular witness, and he was not deprived of the opportunity to present a defense by the exclusion of evidence. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; the failure to investigate and preserve any available evidence was deficient performance, but despite the inability to play messages for the jury, petitioner was able to introduce evidence about their contents, and thus he was not prejudiced. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Defendant failed to show that counsel's performance was deficient for failing to file a motion to dismiss when she learned that the surveillance tape of the robbery was missing where defendant's testimony that the video showed that he was unarmed was unsupported, and counsel testified that she did not believe she had a basis to support the motion based on the lost video, as two eyewitnesses identified defendant as the robber and defendant admitted he robbed the victim. Defendant testified at trial that he was unarmed and counsel cross-examined the detective about the lost video and raised the issue during closing arguments. Boyd v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. Apr. 21, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 635 (Tenn. Aug. 14, 2015).

Defendant failed to show that trial counsel was ineffective for advising her not to testify, and therefore defendant was properly denied post-conviction relief, where there was no evidence that counsel let in prejudicial testimony with the intention of clarifying it with defendant's testimony, counsel did not tell the jury that defendant would testify, the trial court found that defendant would not be a good witness and would not have fared well under cross-examination, and counsel presented to two witnesses on defendant's behalf. Bush v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 786 (Tenn. Sept. 17, 2015).

Post-conviction court rejected petitioner's claim of ineffective assistance of counsel and did not find credible petitioner's testimony that he was informed that service of his sentence would be reduced to 85 percent once in custody or that he believed he would still be able to raise a search issue following his guilty plea, and nothing preponderated against the post-conviction court's findings; petitioner failed to establish prejudice, it was clear that he entered knowing and voluntary pleas, and denial of relief was affirmed. Martin v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. May 15, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 609 (Tenn. July 20, 2015).

Petitioner made no showing that the failure to object to certain testimony of paramedics regarding his transport to the hospital was deficient, or that this failure likely affected the outcome of the proceeding, as his actions were relevant to show his state of mind at the time and to negate claims of self-defense and voluntary intoxication; petitioner received effective assistance of counsel and he was not entitled to post-conviction relief Roddy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 365 (Tenn. Crim. App. May 15, 2015).

Both indictments referenced the appropriate statutes, stated the dates on which the respective offenses occurred, and alleged the essential elements of the offenses, including mental states, and thus petitioner was adequately apprised of the nature of the charges against him and was protected against double jeopardy; petitioner stated that he knew he was accused of robbery and murder, and it was unclear what more counsel could have done to explain the indictments, such that petitioner failed to prove that counsel was ineffective and he was not entitled to post-conviction relief. Tate v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 15, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 604 (Tenn. July 20, 2015).

Defendant failed to prove by clear and convincing evidence that his trial counsel was ineffective for failing to include the motion to recuse and the transcript of the hearing preceding the motion to recuse on direct appeal, and therefore he was properly denied post-conviction relief, where defendant himself was unable to locate and include the transcript. Heard v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. May 19, 2015).

Defendant failed to show that trial counsel was ineffective for failing to object to the trial court's statements to the jury or to request a curative instruction or a mistrial. Defendant also failed to that trial counsel was ineffective for failing to request a recess or a continuance to rebut the testimony of a witness and for failing to call another witness to testify during trial. Bohannon v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 379 (Tenn. Crim. App. May 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 27 (Tenn. Jan. 14, 2016).

Defendant failed to prove by clear and convincing evidence that his trial counsel provided ineffective assistance, and therefore he was properly denied post-conviction relief, where the record showed that counsel discussed the details of defendant's encounter with the police and filed a motion to suppress his statement as being an allegedly unconstitutional custodial interrogation without proper Miranda warnings. Defendant did not identify any evidence or testimony that counsel failed to present to the trial court for consideration during the suppression hearing. Todd v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. May 6, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 639 (Tenn. Aug. 14, 2015).

Defendant failed to show ineffective assistance of counsel because defendant did not show by clear and convincing evidence that counsel was deficient and that, but for counsel's errors, defendant would not have pleaded guilty, but proceeded to trial. The evidence showed that defense counsel was effective in counsel's representation of defendant, while the guilty plea submission hearing transcript supported counsel's testimony that defendant willingly entered the guilty plea. Williams v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 683 (Tenn. Aug. 13, 2015).

Defendant failed to show ineffective assistance of counsel because defendant did not show by clear and convincing evidence that counsel was deficient and that, but for counsel's errors, defendant would not have pleaded guilty, but proceeded to trial. The evidence showed that defense counsel was effective in counsel's representation of defendant, while the guilty plea submission hearing transcript supported counsel's testimony that defendant willingly entered the guilty plea. Williams v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 26, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 683 (Tenn. Aug. 13, 2015).

Defendant failed to show that his trial counsel provided ineffective assistance of counsel, and therefore he was properly denied post-conviction relief, where trial counsel testified that he investigated thoroughly, looked at all the facts, and determined that an additional motion to suppress would be frivolous. Niles v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 421 (Tenn. Crim. App. June 1, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 781 (Tenn. Sept. 17, 2015).

Even if defendant's initial counsel was deficient for arranging his police interview, defendant failed to prove that he was prejudiced by the introduction of his statements from that interview, and therefore he was properly denied post-conviction relief, where no transcript of the interview was included on direct appeal or in the instant appeal and defendant had previously given contradictory accounts regarding his participation in the murders and it was unlikely that his credibility was significantly affected by the introduction of his statements. Underwood v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 773 (Tenn. Sept. 17, 2015).

As the trial court did not abuse its discretion in admitting evidence of petitioner's membership in a gang, as the evidence was relevant to petitioner's identity as well as his motive and intent in making threatening telephone calls, petitioner's challenge as to the admission of such evidence was without merit, and petitioner could not demonstrate that he was prejudiced by trial counsel's failure to include the transcript of a Tenn. R. Evid. 404(b) hearing in the record on direct appeal. Nejat v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. June 5, 2015).

Defendant failed to show by clear and convincing evidence that his counsel was deficient and that but for counsel's errors he would not have pleaded guilty, where counsel testified that defendant initially wanted to proceed to trial but after reviewing the evidence against him decided to accept the State's offer, the discovery consisted of evidence that there was gunshot residue on defendant's hands, a bullet hole in the victim's house, a television in the victim's yard, and defendant's admission that he was in the victim's house and fired a gun, counsel negotiated a minimum sentence for defendant, and counsel testified he would have proceeded to trial had defendant wished and denied ever stating to the contrary to defendant. Faulkner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. June 11, 2015), appeal dismissed, — S.W.3d —, 2015 Tenn. LEXIS 899 (Tenn. Oct. 15, 2015).

Defendant failed to prove ineffective assistance of counsel because, although counsel investigated the case, found a viable defense strategy that defendant decided not to pursue, and was prepared for trial, defendant decided to negotiate a plea agreement. Furthermore, there was no evidence that, but for counsel's errors, defendant would have insisted on taking the case to trial. McMahon v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 468 (Tenn. Crim. App. June 17, 2015).

Inmate failed to prove defense counsel's performance was deficient, as counsel attempted to obtain the expert's report and provide the expert with payment though the trial court's intercession with the Administrative Office of the Courts and sought a continuance, and the inmate failed to show prejudice, as he failed to show that the expert would have provided a report to support a fetal alcohol syndrome defense. Siler v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 512 (Tenn. Crim. App. June 30, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 753 (Tenn. Sept. 17, 2015).

Trial counsel was not ineffective for failing to inform the inmate that a codefendant had passed away and would not have been able to testify against him at trial, as the codefendant did not die until after the inmate entered his guilty plea and the inmate knew his other codefendant could testify against him and the inmate did not want to proceed to trial in light of that information. Lajeniss v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 526 (Tenn. Crim. App. July 7, 2015).

Inmate failed to show counsel was ineffective for failing to call two witnesses, as the witnesses did not testify at the post-conviction hearing. Lajeniss v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 526 (Tenn. Crim. App. July 7, 2015).

Trial counsel was not ineffective for failing to investigate the victim's intoxication level at the time of the offense, as the victim did not undergo a drug screen when taken to the hospital and counsel could not be expected to determine the victim's intoxication level months or years after the victim was alleged to be intoxicated. Lajeniss v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 526 (Tenn. Crim. App. July 7, 2015).

Trial counsel was not ineffective for failing to obtain forensic tests of the knife and axe handle, as such testing would not have been useful given the defense strategy that the weapons had been used in self-defense. Lajeniss v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 526 (Tenn. Crim. App. July 7, 2015).

Denial of post-conviction relief based on counsel's alleged ineffectiveness on direct appeal was proper, as an omitted issue was not significant and obvious because there was no developed law on the issue; post-conviction counsel found no legal authority directly on point stating that a jury in a Tennessee criminal case had to unanimously determine that a witness was or was not an accomplice. Hill v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 551 (Tenn. Crim. App. July 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 857 (Tenn. Oct. 16, 2015).

Transcript of the guilty plea hearing fully supported the dismissal of petitioner's claims, as did the testimony of trial counsel, whose testimony was accredited by the post-conviction court; petitioner failed to present evidence of his mental competency at the time of the trial and guilty pleas, and the denial of his petition for post-conviction relief based on ineffective assistance of counsel was affirmed. Dodson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 607 (Tenn. Crim. App. July 28, 2015).

Although trial counsel did not object when the prosecution cast petitioner in an unflattering light and made inappropriate arguments, the medical evidence was inconsistent with petitioner's theory that the victim was injured in a highchair fall and that the medical evidence supported the State's theory that the victim was thrown into a wall, and ineffective assistance was not shown. Bolton v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 617 (Tenn. Crim. App. July 29, 2015).

Counsel was not ineffective for failing to address alleged prosecutorial misconduct, as the prosecutor's improper comment that it was reasonable for the jury to think codefendant was lying was insignificant in view of the overall tenor of closing arguments and was made in rebuttal to counsel's suggestions that codefendant was not credible, and comments regarding a plea agreement with codefendant were a response to counsel's cross-examination on codefendant's motive to incriminate the inmate. Buford v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 646 (Tenn. Crim. App. Aug. 11, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1026 (Tenn. Dec. 11, 2015).

Evidence did not preponderate against the findings that trial counsel sufficiently investigated petitioner's alleged career offender status and counsel could not have properly filed a motion contesting the State's intent to use petitioner's juvenile adjudications at the pre-trial stage; petitioner failed to present evidence that his juvenile adjudications occurred within a 24-hour period and thus would not have supported a career offender classification, and petitioner failed to prove that he was prejudiced by any deficiency in counsel's performance, and post-conviction relief was properly denied. Garcia v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1050 (Tenn. Dec. 10, 2015).

Petitioner failed to produce the recording from his juvenile adjudications at his post-conviction hearing and instead only vaguely alleged that the recording would show that he was not a career offender; petitioner failed to prove that he was prejudiced by any alleged deficiency in counsel's performance, and he was not entitled to relief on this issue. Garcia v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1050 (Tenn. Dec. 10, 2015).

Petitioner did not have witnesses testify at the post-conviction hearing, and his claim that counsel was ineffective for not investigating them was without merit and he was not entitled to relief. Garcia v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 657 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1050 (Tenn. Dec. 10, 2015).

Petitioner's right to a unanimous verdict was protected when the State satisfied the election requirement, and petitioner failed to prove that he was prejudiced by counsel's failure to redact the interviewer's statement; in the redacted copy of the interview, the victim described only one incident of misconduct, and it did not include penetration, and at trial, she described three instances that included penetration, and had trial counsel redacted the interviewer's comment, there was not a reasonable probability that the outcome of the trial would have been different. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Admission of certain testimony was error because the witness did not testify as an expert witness but offered testimony that was specialized knowledge gathered from her experience as a forensic interviewer, but petitioner failed to demonstrate that he was prejudiced by counsel's failure to object; nothing indicated that trial counsel did not object for strategic reasons, and counsel addressed the inconsistencies between the testimonies in question at both trials during cross-examination. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Despite counsel's failure to object to the introduction of the video or request a limiting instruction, petitioner failed to show he was prejudiced by its introduction as substantive evidence; the interviewer's summary statement did not violate petitioner's right to a unanimous verdict because the State provided an election of offenses, and petitioner failed to prove that there was a reasonable probability that the outcome of the trial would have been different had the forensic interview not been introduced as substantive evidence. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Trial counsel's failure to redact a portion of one incident from certain phone calls did not result in prejudice, as the portion did not contain any reference to sexually illicit conduct and was not used to corroborate the victim's testimony, and the calls were replete with petitioner's repeated denials. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Phone call portion that was redacted showed that the victim identified petitioner as the suspect, and counsel was not deficient in redacting this, and it could not be determined that petitioner was prejudiced by counsel's failure to redact petitioner's comment that a victim said he was the perpetrator, as it appeared petitioner was confirming that someone had accused him of the alleged conduct, a fact the jury would have known, plus the remainder of the phone calls was replete with petitioner's repeated denials. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Petitioner argued that counsel was ineffective because he failed to present an alibi defense similar to the defense presented in the first trial, but counsel explained that he chose not to present the same defense because he anticipated that the State would have solidified the dates on which the abuse was alleged to have occurred, plus counsel changed his defense strategy, which would not be second-guessed on appeal. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Both parties stipulated to a witness's qualification as an expert, and thus she was allowed to offer her opinion, and it was not objectionable because it embraced an ultimate issue; her testimony about the results of one victim's medical examination assisted the jury and counsel was not deficient for failing to object. Guilfoy v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 14, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 148 (Tenn. Feb. 18, 2016).

Defendant failed to show ineffective assistance of counsel based upon counsel failing to file an application for permission to appeal to the Tennessee Supreme Court, failing to challenge the notice of enhanced sentencing, failing to adequately prepare a defense theory of the case, failing to file a timely notice of an entrapment defense, and failing to communicate with defendant and to inform defendant before the trial of the nature and possible sentences for the charges. Grimes v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. Aug. 18, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1019 (Tenn. Dec. 10, 2015).

Despite petitioner's claims of ineffective assistance, the record supported the finding that his guilty pleas were knowingly and voluntarily entered, and he was not entitled to relief; petitioner originally told the trial court that he was satisfied with counsel and he had no questions, counsel testified that she and petitioner discussed the charges and potential sentences, petitioner provided no specific example of any supposedly coercive behavior, and he admitted that counsel never promised him that he would receive an alternative sentence. Williams v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Aug. 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1048 (Tenn. Dec. 10, 2015).

Trial counsel was not ineffective for failing to object to the racial composition of the jury venire, as defendant failed to show prejudice based on the composition of the jury or that the outcome of the trial would have been different if there were minorities in the impaneled jury. Medina v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1028 (Tenn. Dec. 11, 2015).

Trial counsel was not ineffective for failing to move to suppress the inmate's statement to an investigator, as counsel made a strategic decision not to suppress a statement he considered to be exculpatory, in which the inmate stated that the victim's death was accidental. Medina v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1028 (Tenn. Dec. 11, 2015).

Given the overwhelming evidence of guilt, trial counsel was not ineffective for failing to object to the admission of a sander seized from the inmate's neighbor's property, as the inmate failed to show prejudice. Medina v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1028 (Tenn. Dec. 11, 2015).

Since the issue of self-defense was raised by the defense, counsel was not ineffective for failing to object to such an instruction. Medina v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1028 (Tenn. Dec. 11, 2015).

Trial counsel's decision not to call certain witnesses did not amount to ineffective assistance, as the decision was tactical and counsel adequately prepared for trial. Medina v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Sept. 2, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1028 (Tenn. Dec. 11, 2015).

Trial court properly denied defendant's petition for post-conviction relief because defendant failed to present the testimony of the two witnesses he claimed counsel failed to call at trial, trial counsel testified that he met with defendant on numerous occasions, presented the testimony of alibi witnesses at trial, and explained that the decision not to pursue DNA testing was a tactical decision made after thoughtful consideration by all three defendants' attorneys. Roberson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 713 (Tenn. Crim. App. Sept. 2, 2015).

Inmate's claim that trial counsel was deficient for failing to argue to the jury that the State had not proven a required element of aggravated sexual battery, unlawful sexual contact, lacked merit, as counsel testified he made a strategic decision to focus on discrepancies in witness testimony and he believed that, based on the evidence presented, there was ample evidence from which the jury could infer that such contact occurred. Lewis v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 719 (Tenn. Crim. App. Sept. 3, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1017 (Tenn. Dec. 11, 2015).

Inmate's claim that trial counsel was deficient for failing to impeach the victim during her trial testimony failed, as counsel testified he tried to point out inconsistencies between the testimony of the victim and that of the arresting officers. Lewis v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 719 (Tenn. Crim. App. Sept. 3, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1017 (Tenn. Dec. 11, 2015).

Contrary to petitioner's testimony, trial counsel stated that he never made promises to a client and did not tell petitioner that his case was a slam dunk, the post-conviction court accredited trial counsel's credibility in this regard, which determination would not be disturbed on appeal, and deficient performance by trial counsel on this ground was not established; petitioner was not entitled to relief. Hill v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1016 (Tenn. Dec. 10, 2015).

Petitioner claimed that counsel was ineffective for failing to make an offer of proof regarding the proposed testimony of a certain witness, but petitioner conceded that he waived appellate review by not calling the witness to testify at the post-conviction hearing, and thus petitioner could not meet his burden of demonstrating prejudice and he was not entitled to post-conviction relief. Hill v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1016 (Tenn. Dec. 10, 2015).

Petitioner's prior convictions were likely within the 10-year time limit of the rule, but regardless of admissibility under the rule, the possibility existed that evidence of the prior convictions might have been admitted into evidence had he chosen to testify, plus his convictions might have been used as substantive evidence to rebut his claim of self-defense or show his intent, and thus counsel's advice that petitioner should consider the possibility that his prior convictions could be used against him if he testified was not without merit; deficient performance was not shown, and petitioner was not entitled to post-conviction relief. Hill v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Sept. 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1016 (Tenn. Dec. 10, 2015).

Defendant failed to prove that trial counsel was deficient where the post-conviction court credited counsel's testimony that he communicated to defendant the State's offer of eight years' incarceration at a 30% service rate and that he discussed the offer with defendant and his mother on several occasions. Bigsbee v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Sept. 22, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 63 (Tenn. Jan. 19, 2016).

Defendant failed to prove that trial counsel was deficient where the post-conviction court credited counsel's testimony that he communicated to defendant the State's offer of eight years' incarceration at a 30% service rate and that he discussed the offer with defendant and his mother on several occasions. Bigsbee v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Sept. 22, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 63 (Tenn. Jan. 19, 2016).

Counsel was not ineffective for not moving to suppress an inmate's pre-trial identification because (1) a show-up occurred just after the crime, (2) the inmate was arrested in an on-the-scene investigation, and (3) the witness accurately described the inmate before the show-up and was certain. Boling v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Sept. 24, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 130 (Tenn. Feb. 18, 2016).

Counsel was not ineffective for not seeking suppression of an inmate's statements because (1) the inmate was not impaired, (2) the inmate understood rights waivers and sought an interview when the inmate confessed, and (3) counsel could rely on a representation that the statements would not be used at trial. Boling v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Sept. 24, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 130 (Tenn. Feb. 18, 2016).

Inmate's claim that defense counsel provided ineffective assistance by not adequately investigating the inmate's case failed because (1) the inmate did not show what further investigation would have benefitted the inmate, and (2) the evidence supported findings that counsel met with the inmate several times, adequately prepared a defense, and ably presented the defense. Boling v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Sept. 24, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 130 (Tenn. Feb. 18, 2016).

Inmate claiming defense counsel provided ineffective assistance was not entitled to a presumption of prejudice because the inmate was only dissatisfied with how long counsel met with the inmate. Boling v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Sept. 24, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 130 (Tenn. Feb. 18, 2016).

Defendant failed to establish that he received ineffective assistance of trial counsel because, although defendant's claim that a witness was an accomplice was previously determined and thus waived, trial counsel was not ineffective in failing to interview the witness and learn of her purchase of lighter fluid on the night of the offense as the State offered independent corroborative testimony at trial to sustain defendant's convictions; and the appellate court was unpersuaded that the witness would have been declared an accomplice as a matter of law even if the trial court had known of her purchase of lighter fluid that enabled co-defendant to destroy evidence. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Trial counsel was not ineffective in presenting the motion to withdraw as counsel and in not seeking further review after the denial of the motion because, at the post-conviction hearing, trial counsel testified that his relationship with defendant significantly improved after family members and other third parties stopped interfering with his representation; the appellate court failed to see what more counsel should have done in arguing the motion to the trial court, or how that issue would have had merit on appeal; and, although defendant and trial counsel might have had disagreements, a criminal defendant was not entitled to perfect representation, only constitutionally adequate representation. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Defendant failed to establish that trial counsel was ineffective in failing to file numerous pretrial motions because defendant did not demonstrate how he was prejudiced by counsel's pretrial motion practice; and, at the post-conviction evidentiary hearing, defendant did not present any proof or argument to establish a reasonable probability that the filing of defendant's requested pretrial motions would have resulted in a different outcome. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Trial counsel did not provide ineffective assistance during sentencing because, to demonstrate prejudice based on trial counsel's failure to present a mitigation expert, defendant should have presented such a witness at the post-conviction hearing; defendant did not show that he was prejudiced by counsel's failure to object to the trial court's finding that he committed the offenses while on probation, given that the appellate court upheld the separate finding that defendant was a dangerous offender; and defendant did not show that he would have received concurrent sentences if trial counsel informed the trial court of the basis of the State's withdrawal of its notice of intent to seek enhanced punishment. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Defendant failed to establish that he received ineffective assistance of trial counsel because counsel was not ineffective in failing to interview the witness before trial as counsel testified that he had the witness's statement to police prior to trial and realized that she was minimizing her role in the offense; trial counsel believed that if he had interviewed the witness prior to trial, she would have known the questions he was going to ask and further minimized her role in the offense; and, given the witness's testimony at the post-conviction hearing, explaining that she was forced to purchase the accelerant and that she did not know what it would be used for, counsel made a legitimate tactical decision not to interview the witness. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Trial counsel was not ineffective for failing to raise a conflict of interest claim because, although the trial record reflected that counsel adopted the motions filed by codefendant's counsel during a motion hearing at which codefendant's counsel argued that another codefendant's counsel should be disqualified, the trial court determined that the matter was moot because the other codefendant's counsel was no longer involved in the case and did not represent any codefendants; furthermore, defendant did not present any proof to establish a reasonable probability that an independent motion raised by trial counsel would have resulted in a different outcome. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Trial counsel was not ineffective in failing to challenge the admission of a coded note on appeal because the trial court did not err in admitting the coded note as the first correctional officer identified the evidence and established an unbroken chain of custody because the first correctional officer personally observed defendant slip a piece of paper into the hallway as codefendant was returning a breakfast tray; a second correctional officer immediately retrieved the note from codefendant and brought it back to central control; and the first correctional officer stated that the piece of paper and the second correctional officer remained visible to him at all times, and that he recognized the note because of its torn corner. Cofer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 134 (Tenn. Feb. 18, 2016).

Counsel's reliance on the mental health assessment by correctional officers did not negate counsel's duty to investigate petitioner's mental health further, and counsel was not entitled to rely on his own assessment when he had learned of petitioner's hallucinations and obsessive compulsive disorder; counsel's decision not to investigate further was deficient performance, but petitioner did not present any expert testimony regarding his mental health and he admitted that these issues were not the cause of his unlawful behavior, and thus he failed to establish prejudice and he was not entitled to post-conviction relief. Herrera v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Sept. 30, 2015).

Counsel's performance was not deficient in regard to a particular form because petitioner failed to prove by clear evidence counsel knew or should have known of its existence, and thus he was not entitled to post-conviction relief on this ground. Herrera v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Sept. 30, 2015).

Petitioner failed to show that trial counsel and co-counsel were deficient when they failed to file a motion to suppress evidence found during an inventory search of petitioner's vehicle; petitioner needed other witnesses, such as a police detective and a police captain, to establish the factual circumstances of petitioner's arrest and the inventory search of his vehicle, and without such evidence, petitioner could not establish that a motion to suppress would have been successful. Fisher v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Oct. 2, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 156 (Tenn. Feb. 18, 2016).

Defendant was properly denied post-conviction relief on his claim of ineffective assistance of counsel where the record showed that trial counsel met with defendant several times and thoroughly reviewed the available discovery with him, there was no indication that counsel's only preparation was the time he spent with defendant, there was no indication that defendant's decision to proceed to trial would have been different had counsel attended the court proceeding himself rather sending his law partner, counsel's testimony showed that he prepared for the sergeant's cross-examination by reviewing the recording of the preliminary hearing and then impeached the sergeant with his inconsistencies, and counsel received discovery more than a month before the trial and it was clear from his testimony that nothing in the discovery changed defendant's mind about proceeding to trial. Smith v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 805 (Tenn. Crim. App. Oct. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 150 (Tenn. Feb. 19, 2016).

Inmate failed to demonstrate that, but for the alleged deficiencies of counsel, he would have rejected the plea agreement and insisted upon trial, as he did not present any testimony at the hearing to show that he would have insisted on proceeding to trial and he expressed his desire to enter the plea and indicated counsel had discussed the facts with him and the fact that he had 30 days to withdraw his guilty plea. Dietz v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Oct. 16, 2015).

Defendant was properly denied post-conviction relief on his claim that his counsel was ineffective for failing to investigate and present evidence regarding his mother's presence at the time of the offense where at trial the victim testified that defendant's mother could not have seen the living room where the offense occurred from her location in the kitchen. Lambert v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 15, 2015).

Defendant was properly denied post-conviction relief on his claim that his counsel was ineffective for failing to challenge the qualification of the forensic interviewer where counsel testified that in his experience he had never seen a successful challenge, he said that the forensic interviewers did not ask leading questions, and no evidence was presented at the post-conviction hearing regarding the interviewer's qualifications. Lambert v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 15, 2015).

Defendant was properly denied post-conviction relief on his claim that his counsel was ineffective for failing to challenge the victim's competency and credibility where defendant did not identify the actions counsel should have taken relative to the victim's competency and counsel attempted to ask the victim about the prior allegations. Lambert v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 15, 2015).

Defendant was properly denied post-conviction relief on his claim that his counsel was ineffective for failing to consult with him and prepare him adequately for the trial where the post-conviction court found that counsel's testimony was credible and that counsel met with defendant and discussed the case, including the plea offers. Lambert v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Oct. 15, 2015).

Post-conviction court properly denied defendant's petition for relief because his trial counsel was not ineffective where counsel met with defendant numerous times to discuss the State's evidence, review discovery, and discuss trial strategy, pursued potential witnesses, but found their statements failed to establish an alibi defense, looked for avenues for suppression, but found no basis to exclude defendant's recorded statement to police, and counsel's decisions with regard to trial strategy and tactical choices were informed and based upon adequate preparation. Whitson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 850 (Tenn. Crim. App. Oct. 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 154 (Tenn. Feb. 18, 2016).

Counsel attempted to locate a witness and, although unsuccessful, presented other evidence relative to the issue at hand, and the post-conviction court did not err in determining that petitioner failed to establish that counsel's performance was deficient and petitioner was not entitled to relief. Turner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 866 (Tenn. Crim. App. Oct. 22, 2015).

Petitioner had not identified any portion of the State's forensic proof that was improperly admitted and the basis upon which the evidence should have been excluded, and he failed to prove that counsel's lack of an objection was deficient performance, and thus petitioner was not entitled to relief in this regard. Turner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 866 (Tenn. Crim. App. Oct. 22, 2015).

Petitioner failed to demonstrate error in the post-conviction court's determination that trial counsel's performance was not deficient relative to conducting a more in-depth cross-examination of the State's forensic expert; the decision not to go into greater depth was a matter of trial strategy. Turner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 866 (Tenn. Crim. App. Oct. 22, 2015).

Petitioner failed to offer any expert proof at the hearing and the post-conviction court found that he failed to carry his burden of proving his claim of ineffective assistance of counsel relative to the failure to call a defense expert witness, and petitioner was not entitled to relief. Turner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 866 (Tenn. Crim. App. Oct. 22, 2015).

Counsel made a strategic decision not to object to the State's limited use of a recording and the evidence did not preponderate against the determination that counsel did not object as a matter of trial strategy; the erroneous admission of the recording was harmless given the other testimony and the limiting instruction given, and petitioner was not entitled to relief. Turner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 866 (Tenn. Crim. App. Oct. 22, 2015).

By failing to present any evidence regarding trial counsel's thought process in choosing not to object or counsel's deficiency in failing to consider the issue, petitioner failed to present clear evidence of counsel's alleged deficiency; petitioner was not entitled to relief. Turner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 866 (Tenn. Crim. App. Oct. 22, 2015).

Trial counsel did not err by waiving attorney-client privilege with the couple's divorce attorney where trial counsel did in fact consult with petitioner during the divorce attorney's testimony and, only after consulting with petitioner, did trial counsel waive the petitioner's attorney-client privilege. Kendrick v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 339 (Tenn. May 5, 2016).

Trial counsel was not ineffective for failing to interview petitioner's first cousin where petitioner could have informed counsel of any desire for the cousin to testify in corroboration as he did with other witnesses. Kendrick v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 339 (Tenn. May 5, 2016).

While trial counsel was deficient in the form of the question posed and should have asked for a limiting instruction with respect to the admissibility of petitioner's prior convictions, petitioner failed to establish prejudice. Kendrick v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 339 (Tenn. May 5, 2016).

Trial counsel's failure to request a limiting instruction on the jury's proper use of the consistent statement to the investigator did not amount to deficient performance where counsel's requesting such an instruction would have merely emphasized the testimony to the jury and the nature of the testimony itself served only to rehabilitate a witness's credibility. Kendrick v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 339 (Tenn. May 5, 2016).

Because petitioner has failed to prove deficient representation on more than one issue, he cannot successfully claim that the cumulative effect of counsels' performances violated his constitutional rights. Kendrick v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 339 (Tenn. May 5, 2016).

Counsel was not ineffective in failing to call a witness to testify at trial because the witness could not recall when he had worked on petitioner's vehicle, there was no evidence at trial regarding the source of the human blood on the muffler, and the court specifically accredited trial counsel's testimony that he made the effort to locate the witness by calling and visiting the muffler shop; counsel conducted a reasonable investigation and his inability to locate the witness could not be attributed to ineffective assistance where no one would admit to bleeding on the muffler. Freeman v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Nov. 13, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 225 (Tenn. Mar. 24, 2016).

Petitioner failed to prove his factual allegations of ineffective assistance of counsel by clear and convincing evidence; the trial court had reviewed the plea agreement with petitioner, including the fact that his sentences were to be served consecutively, plus he also reviewed the agreement with counsel and stated that he understood it, and counsel testified that he explained the agreement to petitioner, who appeared to understand it. Patterson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 928 (Tenn. Crim. App. Nov. 19, 2015).

Petitioner failed to show that he was entitled to post-conviction relief based on ineffective assistance of counsel; petitioner was aware of counsel's trial strategy, there was no evidence that counsel would have prevailed on a suppression motion as petitioner claimed, petitioner did not provide the names of potential witnesses and counsel's investigator found no witnesses who would have been helpful to the defense, and counsel discussed with petitioner his right to testify and the fact that it was petitioner's decision whether or not to do so. Johnson v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 229 (Tenn. Mar. 23, 2016).

Petitioner was not entitled to post-conviction relief, as he failed to prove deficient performance in regard to his assertions that counsel failed to communicate a negotiated plea agreement offer and/or acceptance of an offer and failed to investigate a witness. Scales v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 224 (Tenn. Mar. 22, 2016).

While total failure to preserve the right to appeal from the second sentencing hearing might have been deficient performance, petitioner failed to present the transcript of the hearing, and this omission, along with the failure to present what argument he thought trial counsel should have made resulted in a failure to show prejudice, and he was not entitled to post-conviction relief. Scales v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 224 (Tenn. Mar. 22, 2016).

Counsel was not ineffective for failing to impeach witnesses because counsel ably cross-examined the witnesses, but as she said, one of the witnesses was “stalwart” in her testimony, and both witnesses appeared to be “as upstanding as anybody” she had seen. Moreover, petitioner failed to produce the “contradictory accounts” for which he faulted trial counsel for not utilizing. Marion v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 934 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 360 (Tenn. May 6, 2016).

Counsel was not ineffective for failing to present mitigating evidence at sentencing because evidence of petitioner's drug use could have easily been more damaging than helpful, and while a witness testified in vague terms about petitioner's mental health issues, without more, calling him as a trial witness would have been futile. Marion v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 934 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 360 (Tenn. May 6, 2016).

Counsel was not ineffective for failing to investigate because calling one witness would have been a “silly” strategic decision because he would have been “badly” impeached by the statement that he gave to police, and as to another witness, petitioner gave her a name but no other contact information; all efforts to find the witness were unsuccessful. Marion v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 934 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 360 (Tenn. May 6, 2016).

Counsel was not ineffective for failing to sever petitioner's trial because one or more of the codefendants' statements could have been used against petitioner had he stood trial individually, and counsel for the codefendants declined to allow their clients to testify for petitioner; in fact, both attorneys “laughed” at the proposition. Marion v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 934 (Tenn. Crim. App. Nov. 20, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 360 (Tenn. May 6, 2016).

Counsel met with petitioner prior to his guilty plea hearing and discussed the charges against him, the range of punishments he faced, and the likelihood of successfully defending against those charges, and the trial court also carefully explained the sentence and petitioner assured the trial court that he understood his rights and that his plea was both knowing and voluntary, and that he was satisfied with counsel's representation; petitioner failed to establish deficient performance by counsel and thus was not entitled to post-conviction relief. Musgrave v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 945 (Tenn. Crim. App. Nov. 24, 2015).

Trial counsel was not ineffective for failing to inform the inmate that the underlying facts of his prior convictions would be inadmissible if he testified, as counsel and co-counsel testified that the inmate was so informed. Greene v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 243 (Tenn. Mar. 23, 2016).

Trial counsel was not ineffective for not requesting a Tenn. R. Evid. 609 hearing, when the primary reason was the inmate's insistence that he did not want to testify. Greene v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 243 (Tenn. Mar. 23, 2016).

Trial counsel was not ineffective in not telling the inmate that he needed to testify to guarantee a self-defense instruction or be convicted of a lesser included offense. Greene v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 243 (Tenn. Mar. 23, 2016).

Trial counsel was not ineffective for failing to object and request a mistrial during closing argument, as the challenged statement was not a comment on the inmate's decision not to testify and was made in response to defense counsel's closing argument, which raised the lesser offense and self-defense. Greene v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 954 (Tenn. Crim. App. Nov. 19, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 243 (Tenn. Mar. 23, 2016).

Trial counsel could not be faulted because he did not raise a Brady claim upon which the inmate would have prevailed, because the lost evidence, the identity of an unknown man from the location of the offense, was of minimal significance given the other evidence of the inmate's guilt, including his pretrial statement in which he admitted selling drugs and the numerous packages of drugs he possessed at the time of his arrest. Hughes-Mabry v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Dec. 9, 2015), appeal denied, Hughes-Mabry v. State, — S.W.3d —, 2016 Tenn. LEXIS 329 (Tenn. May 6, 2016).

Trial counsel was not ineffective for failing to obtain video surveillance footage from the gas station, as the footage was discarded after about two days and counsel was not retained for months after the inmate's arrest. Hughes-Mabry v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Dec. 9, 2015), appeal denied, Hughes-Mabry v. State, — S.W.3d —, 2016 Tenn. LEXIS 329 (Tenn. May 6, 2016).

Trial court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because trial counsel found that there was no evidence that defendant suffered from a diminished mental capacity, and the trial court found that defendant was very well-spoken and read extensively from his guilty plea transcript without difficulty; and because trial counsel meet with defendant in a meaningful manner as a pastor of a local church, who was a mentor for defendant, recalled meeting with trial counsel five or six times, and trial counsel testified that he had 10 appointments documented with defendant or members of his family. Merritt v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 981 (Tenn. Crim. App. Dec. 10, 2015).

Defendant's trial counsel was not deficient in failing to file a motion to dismiss or to request a jury instruction based on the State of Tennessee's failure to preserve the components recovered from a methamphetamine lab because, under the circumstances, the State did not have a duty to preserve the components of the methamphetamine lab because it could not have been done safely. Carroll v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 988 (Tenn. Crim. App. Dec. 11, 2015).

Post-conviction relief was properly denied, as the inmate failed to show counsel was deficient as to plea, as inmate's first attorney testified she discussed plea offer with inmate and he rejected it and trial counsel testified that he discussed the offer with inmate but did not remember whether he represented the inmate prior to the offer's expiration, the inmate's decision not to testify was not unknowing or involuntary, and counsel's decision not to file a motion to sever was tactical. Curry v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1023 (Tenn. Crim. App. Dec. 17, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 291 (Tenn. Apr. 7, 2016).

Petitioner failed to show clear and convincing evidence that he received ineffective assistance of counsel at trial and therefore he was not entitled to post-conviction relief; counsel testified that he and petitioner discussed the plea agreement and the post-conviction court found that petitioner made an informed choice to reject the plea offer and take his chances at trial, which was a trial strategy that failed, and the evidence did not preponderate against the judgment. White v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1030 (Tenn. Crim. App. Dec. 23, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 298 (Tenn. Apr. 7, 2016).

Post-conviction court properly denied defendant's petition for relief because his trial counsel was not ineffective where, inter alia, the waiver of defendant's appearance at a preliminary hearing was a reasonable strategic decision, counsel thoroughly discussed the case with him, counsel made a reasonable strategic decision regarding which defense to pursue, and counsel's failure to object to the word “murder” in a question by the prosecutor did not prejudice the outcome of trial where defendant admitted to shooting the victim and his self-defense claim was greatly undermined by the evidence. Webster v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1035 (Tenn. Crim. App. Dec. 22, 2015), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 497 (Tenn. June 23, 2016).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; no reasonable probability existed that presenting the proof from the ballistics testing would refute or alter the significant evidence of premeditation and undermine the outcome of this case, and prejudice was not shown. Le Hurst v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1057 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 347 (Tenn. May 5, 2016).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; petitioner failed to establish deficient performance on the part of counsel in failing to object to alleged instances of prosecutorial misconduct. Le Hurst v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1057 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 347 (Tenn. May 5, 2016).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; because petitioner failed to establish that certain statements were inadmissible under the Confrontation Clause, trial counsel was not deficient in failing to object on this basis. Le Hurst v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1057 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 347 (Tenn. May 5, 2016).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; although petitioner claimed counsel should have objected to irrelevant information found on a computer, there was no reasonable probability that the result of the proceeding would have been different had the challenged evidence been excluded, plus the State presented other evidence from the search that was relevant. Le Hurst v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1057 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 347 (Tenn. May 5, 2016).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; petitioner was not denied the opportunity to confront two witnesses as counsel cross-examined both of them at trial, and nothing preponderated against the findings that the testimony was not shown to be inaccurate or false. Le Hurst v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1057 (Tenn. Crim. App. Dec. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 347 (Tenn. May 5, 2016).

As petitioner failed to show ineffective assistance of counsel, he was not entitled to post-conviction relief; there was no proof that neither of the attorneys reviewed discovery with petitioner, and nothing preponderated against the post-conviction court finding that petitioner understood the significance and consequences of his decision to plead guilty and that the decision was not coerced. Bernard v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1064 (Tenn. Crim. App. Jan. 28, 2015).

Inmate failed to prove that trial counsel was ineffective such that his pleas were rendered unknowing and involuntary where counsel testified he met with the inmate multiple times, the inmate's own testimony was that he and trial counsel thoroughly discussed the facts underlying his case, and counsel's refusal to file a motion to dismiss was a reasonable, strategic decision. Isaac v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. Jan. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 300 (Tenn. Apr. 6, 2016).

Denial of post-conviction relief to petitioner was proper; he failed to prove that trial counsel's alleged failure to discuss the bill of particulars or the filing of a motion to sever constituted ineffective assistance of counsel, and because petitioner did not produce either of his proposed witnesses, or any other medical expert, he failed to establish that counsel was ineffective in this respect, and his cumulative error claim was without merit. Harrison v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. Jan. 12, 2016).

Nothing indicated that the State made a plea offer, and petitioner's argument conceded that the post-conviction court's ruling that there was no deficient performance was correct; petitioner's brief did not raise any issue regarding whether counsel's failure to engage in plea negotiations constituted ineffective assistance, and the issue was waived, plus as the strength of the State's case was good, it was unlikely that the State would have made an attractive offer, and petitioner failed to show that he was prejudiced by the failure of his counsel to pursue an offer of settlement, and he was not entitled to post-conviction relief. Rollins v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 332 (Tenn. May 6, 2016).

Evidence did not preponderate against the post-conviction court's finding that counsel advised petitioner of his right to testify and merely informed him of a possible drawback of his potential testimony, in that his prior criminal record might be used against him; counsel stated that the decision to testify ultimately rested with petitioner, which he acknowledged, and thus he was not entitled to relief, as ineffective assistance was not shown. Rollins v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 332 (Tenn. May 6, 2016).

To the extent the post-conviction court determined that previous convictions would have been per se admissible had petitioner testified, that conclusion was not supported by the record; regardless of whether petitioner's prior convictions would have been admissible, the possibility still existed that such evidence might have been admitted had he chosen to testify, and thus even if the State did not file a notice of intent to impeach, counsel's advice that the prior convictions might be introduced was not without legal merit, and ineffective assistance was not found in this regard. Dodd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 14, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 341 (Tenn. May 6, 2016).

Petitioner pointed to nothing in a witness's evidentiary hearing testimony that would have been favorable to the defense at trial, and thus he had not proven either deficient performance or prejudice and was not entitled to post-conviction relief. Dodd v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 14, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 341 (Tenn. May 6, 2016).

Trial counsel's failure to contemporaneously object to character evidence of the victim did not amount to ineffective assistance, as counsel did ultimately object, and while the jury heard the victim's daughter testify about the victim's attributes, it also heard that the victim frequently picked up prostitutes and bought drugs for them and thus, a different result based on a more timely objection was not likely. Echols v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 31 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 340 (Tenn. May 5, 2016).

Although trial counsel stated that he expected to have immediate access to his investigator, who had performed extensive work prior to trial on the case and was essential to the dense, the inmate failed to show that the trial court's sequestration order was improper, as trial counsel failed to present objective criteria upon which to assess prejudice and counsel's failure to enunciate such a reason when arguing did not constitute deficient performance. Echols v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 31 (Tenn. Crim. App. Jan. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 340 (Tenn. May 5, 2016).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly dismissed because the co-defendant's trial counsel testified that he observed defendant in open court reject the State's final plea offer and waive his right to testify; and, with respect to the alleged conflict of interest regarding one of the co-defendants' appellate counsel, defendant failed to present any evidence establishing that the attorney participated in the prosecution of the case or was even aware that those offenses had occurred during her time as an Assistant District Attorney General, and defendant did not present any evidence as to how the alleged conflict of interest would have affected his direct appeal. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 41 (Tenn. Crim. App. Jan. 20, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 357 (Tenn. May 6, 2016).

Post-conviction relief was not warranted because petitioner did not receive ineffective assistance of counsel under the United States or Tennessee Constitutions based on a failure to discuss and/or present an attempted suicide defense; the decision to present a reckless homicide defense was not based on inadequate preparation since trial counsel spent 160 hours on the case and visited petitioner at least 24 times. Counsel's decision to present one theory of defense to the exclusion of another was a tactical decision that was not second-guessed unless it was made upon inadequate preparation. Sydnor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 48 (Tenn. Crim. App. Jan. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 489 (Tenn. June 23, 2016).

Defendant failed to show that trial counsel was ineffective for failing to move for a recusal based on the trial judge's prior acquaintance with the victim where the record showed that the judge and the victim went to elementary school together and the judge thought he might have prosecuted the victim many years earlier, and defendant offered no evidence that the prior acquaintance created any bias in favor of the victim or prejudice against defendant that would have had any effect on the judge's ability to conduct the trial impartially. Taylor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 76 (Tenn. Crim. App. Feb. 3, 2016).

Defendant failed to show that trial counsel was ineffective for coercing him not to testify where, after questioning by the trial court, defendant acknowledged that he had chosen not to testify and that the decision was his. Taylor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 76 (Tenn. Crim. App. Feb. 3, 2016).

Defendant failed to prove that his counsel was ineffective for failing to file a motion to suppress the bed sheets from the crime scene where counsel made a tactical decision that such a motion would be frivolous as defendant had slept on the sheets and he failed to show even if the sheets had been suppressed he would not have pleaded guilty. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 3, 2016).

Defendant failed to prove that his first counsel was ineffective for failing to investigate a plea offer for misdemeanor assault rather than aggravated sexual battery where counsel testified that she investigated the issue but found no evidence that such an offer existed. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 3, 2016).

Defendant failed to prove that his first counsel was ineffective for failing to investigate a speedy trial claim where due to the nature of the charges against defendant several items had to undergo DNA analysis and during the delay defendant requested and received new counsel. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 3, 2016).

Defendant failed to show that trial counsel was ineffective for failing to file a motion to suppress defendant's pretrial statement where he did not advance a legal basis for suppression of the statement. Taylor v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 76 (Tenn. Crim. App. Feb. 3, 2016).

Defendant failed to prove that his counsel was ineffective for failing to investigate a plea offer for simple assault rather than aggravated sexual battery where counsel testified that she investigated the issue but found no evidence that such an offer existed. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 3, 2016).

Nothing in the record preponderated against the post-conviction court's findings that petitioner failed to prove by clear evidence that counsel's performance was deficient, as counsel met with petitioner several times to discuss the case, plus counsel negotiated a settlement with the State. Rye v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 293 (Tenn. Apr. 7, 2016).

Nothing in the record preponderated against the post-conviction court's findings that petitioner was not entitled to relief on the basis that his plea was entered involuntarily or unknowingly, as counsel explained the terms of the agreement to him, and ineffective assistance was not shown, plus the trial court discussed the ramifications of the guilty plea with petitioner, who understood the plea and knew what he was doing. Rye v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 293 (Tenn. Apr. 7, 2016).

Trial counsel was not ineffective for failing to request a second preliminary hearing because defendant was not entitled to such a hearing under Tenn. R. Crim. P. 5(e) and he failed to establish what different result would have been attained had he been given a second hearing. Thompson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 505 (Tenn. June 23, 2016).

Trial counsel was not ineffective for failing to schedule a polygraph examination because it would not have been admissible and the State could have gained more investigative information than it previously had. Thompson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 505 (Tenn. June 23, 2016).

Trial counsel was not ineffective for failing to organize a physical line-up because defendant did not have a right to demand one, he was identified through a photographic array, and counsel challenged the identification through a motion to suppress. Thompson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 505 (Tenn. June 23, 2016).

Trial counsel was not ineffective for questioning defendant's religious beliefs because it appeared that counsel was attempting to communicate that a sound defense strategy required more than faith and despite counsel's statements being offensive to defendant there was no evidence in the record that counsel's performance was rendered deficient as a result. Thompson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 505 (Tenn. June 23, 2016).

Trial counsel was not ineffective for failing to withdraw from defendant's case upon request because, while defendant was dissatisfied with the personality differences he experienced with trial counsel, he was pleased with associate counsel and he was not prejudiced by trial counsel's continuing to represent him. Thompson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 9, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 505 (Tenn. June 23, 2016).

Even if petitioner's counsel was deficient for failing to have the recording of the phone call between petitioner and one of his codefendants excluded from evidence at trial, petitioner failed to show that he was prejudiced given that the evidence against him, including testimony from three witnesses that he admitted his involvement in the shooting, was overwhelming. Lowe-Kelley v. State, 2016 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 488 (Tenn. June 23, 2016).

Counsel was not ineffective for allegedly failing to prepare for a witness' testimony at trial where counsel testified that he was prepared to cross-examine the witness and his cross-examination would not have been materially different with additional preparation. Lowe-Kelley v. State, 2016 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 488 (Tenn. June 23, 2016).

Petitioner failed to prove that his counsel was ineffective for failing to conduct an independent investigation into the State's witnesses and did not investigate potential witnesses who could have testified on petitioner's behalf where he did not offer any evidence as to what any additional investigation would have revealed and he testified that he did not know of any witnesses who would have been beneficial to him at trial. Lowe-Kelley v. State, 2016 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 488 (Tenn. June 23, 2016).

Counsel was not ineffective for failing to present any proof at trial where counsel testified that his trial strategy was to raise reasonable doubt in the minds of the jury about whether petitioner was actually present and involved in the shooting and counsel felt that he could do this through cross-examination and argument. Lowe-Kelley v. State, 2016 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 488 (Tenn. June 23, 2016).

Counsel was not ineffective for letting the trial judge to conduct the Momon hearing rather than questioning petitioner himself where petitioner did not argue that the trial judge coerced him into waiving his right to testify and he testified that he accepted counsel's advice that testifying would not be in his best interest. Lowe-Kelley v. State, 2016 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 488 (Tenn. June 23, 2016).

Counsel was not ineffective for failing to hire an expert witness to rebut the testimony of the State's experts where petitioner did not present any expert witness testimony at the evidentiary hearing that would have benefited him if it had been presented to the jury. Lowe-Kelley v. State, 2016 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Feb. 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 488 (Tenn. June 23, 2016).

Evidence did not preponderate against the finding that counsel was not deficient by failing to object to the trial judge's proper application of the law and that counsel did not provide deficient performance relative to lesser included offenses; petitioner did not meet his burden and was not entitled to relief on this basis. Diggs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 148 (Tenn. Crim. App. Feb. 29, 2016).

Petitioner did not establish how trial counsel's defense strategy was deficient in light of the facts, nor did petitioner suggest what other strategy trial counsel could have employed to reach a more favorable result; thus, petitioner failed to prove deficient performance on the part of trial counsel or resulting prejudice, and he was not entitled to relief on this issue. Graham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 425 (Tenn. June 24, 2016).

Petitioner failed to explain how trial counsel's representation of a company limited counsel's ability to represent petitioner in the criminal case, plus there was no proof that trial counsel stood to benefit personally if petitioner was convicted or that trial counsel conspired to take the company from petitioner; thus, petitioner failed to establish that an actual conflict of interest adversely affected trial counsel's performance. Graham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 425 (Tenn. June 24, 2016).

Trial counsel advised petitioner that he could reduce his likely sentence by two years if he read a letter of apology and waived filing a motion for new trial and an appeal, and petitioner acknowledged that he made the decision to accept the sentence and give up his right to appeal as an act of his own free will; the evidence did not preponderate against the determination that trial counsel did not coerce petitioner, and deficient performance and prejudice were not shown. Graham v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 425 (Tenn. June 24, 2016).

Petitioner could not establish that but for the omission of challenge sheets, the outcome of his direct appeal would have been different, given that even without them, it was known to the court that four Caucasians and six African-Americans were removed from the jury, and the reasons for such removal were race neutral; nothing indicated that had the court been able to identify each juror by race and reason for removal, petitioner would have established purposeful discrimination, he did not show prejudice, and he was not entitled to relief on ineffective assistance of counsel grounds. Sanders v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 2, 2016), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 585 (Tenn. Aug. 19, 2016).

Post-conviction court found that trial counsel was very prepared with a very valid strategy for the second trial, there were not any additional witnesses that trial counsel could have called that would have affected the outcome of the trial, and trial counsel also testified that his struggles with depression began after petitioner's trial; the record did not preponderate against the findings of the post-conviction court, and petitioner was not entitled to post-conviction relief on ineffective assistance grounds. Sanders v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 2, 2016), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 585 (Tenn. Aug. 19, 2016).

Trial court did not err by denying petitioner post-conviction relief on his claim that his trial counsel was deficient for abandoning his case and not preparing for trial where the trial court credited counsel's testimony and found that he had met with petitioner multiple times and reviewed the State's evidence and discovery with petitioner. Looper v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 3, 2016).

Trial court did not err by denying petitioner post-conviction relief on his claim that his trial counsel was ineffective for telling him that he would receive probation during sentencing where the trial court specifically credited counsel's testimony that he did not promise petitioner a probationary sentence and had advised petitioner of the possible sentences the trial court could impose. Looper v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 3, 2016).

Counsel testified that his reasons for asking certain questions and not objecting had to do with privileged conversations he had with his client, and thus petitioner had not established that trial counsel performed deficiently; moreover, petitioner could not show that he suffered prejudice because even without a witness's testimony, there was ample evidence that petitioner's vehicle was operational, as petitioner's wife was able to start the car and drive it off of the tow lot the next day when she came to retrieve it, and petitioner was not entitled to relief. Kinsler v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Mar. 17, 2016).

Defendant did not receive ineffective assistance of counsel because, although defendant argued that counsel should have advised defendant to appeal the case and should not have allowed defendant to waive the appeal, counsel advised defendant that, if defendant chose to waive the appeal, that defendant's case would be over, and defendant testified that defendant understood as much. Therefore, counsel was not ineffective, and defendant could not prove prejudice. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 414 (Tenn. June 24, 2016).

Petitioner claimed that counsel was ineffective for failing to present expert testimony about the petitioner's mental health at the sentencing hearing, but he failed to present any such expert testimony at the post-conviction hearing, and thus he failed to prove that he was prejudiced and he was not entitled to relief. Edwards v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 212 (Tenn. Crim. App. Mar. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 597 (Tenn. Aug. 18, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because trial counsel was not ineffective for failing to raise a double jeopardy argument at trial as defendant was not entitled to relief because the attempted second-degree murder and aggravated assault charges were presented as alternative theories of the crime, and the double jeopardy protections of the Fifth Amendment were not implicated as defendant was acquitted of attempted second-degree murder and convicted of aggravated assault. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. Mar. 30, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because trial counsel was not ineffective for failing to present a self-defense theory at trial as defendant denied that he was present at the scene of the offense. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. Mar. 30, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because trial counsel was not ineffective for failing to properly cross-examine the victims about their inconsistent statements because trial counsel testified that she cross-examined the victims and confronted them with their statements to police and that she confronted one of the victims with her testimony from the preliminary hearing; and the transcripts of the victims' trial testimony showed that both defendant's trial counsel and co-defendant's counsel extensively cross-examined each of the victims about their prior inconsistent statements. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. Mar. 30, 2016).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of counsel because trial counsel was not ineffective for failing to object to testimony about defendant's prior bad acts about being a gang member because it was clear that trial counsel actively sought to introduce evidence that the victims had accused defendant of being a gang member, of showing them guns, and of breaking into their cars and home in order to show that the victims had motive to identify defendant as the shooter. Clark v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. Mar. 30, 2016).

Post-conviction court found that petitioner's decision not to testify was the reason a self-defense instruction was not given, and thus even if he had proven that he was lawfully upon the premises when he shot the victims, the trial court would still have not instructed the jury on self-defense due to the rest of the evidence adduced at trial, and petitioner has not proven prejudice as to his ineffective assistance claim and was not entitled to relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Counsel recalled talking with petitioner about his options, and he ultimately decided to waive his right to a preliminary hearing; petitioner had not proven his ineffective assistance allegations by clear and convincing evidence, and he was not entitled to relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Because petitioner did not produce either of his proposed witnesses at the evidentiary hearing, he failed to establish that counsel was ineffective in this respect and he was not entitled to post-conviction relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Because petitioner offered no meaningful testimony at the hearing and did not even allege that a motion to suppress was appropriate or would have been granted, this ineffective assistance of counsel issue lacked merit and he was not entitled to post-conviction relief. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Defendant failed to prove by clear and convincing evidence that defendant received ineffective assistance of counsel when trial counsel failed to file a pre-trial motion to dismiss the charge against defendant of robbery, based on the loss of a surveillance video of the incident, because eyewitnesses testified that defendant was the one who robbed the victim. Therefore, defendant failed to show that defendant was prejudiced by counsel's failure, or that counsel's performance was in any way deficient. Weston v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Mar. 29, 2016).

Petitioner failed to prove by clear and convincing evidence his factual allegation that general sessions counsel did not convey the plea offer to him and did not discuss the repercussions of rejecting that offer, and thus he was not entitled to relief on this matter. Rice v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 229 (Tenn. Crim. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 606 (Tenn. Aug. 19, 2016).

Trial counsel was not ineffective for failing to question whether a juror saw defendant exiting the jail van because trial counsel testified that after the trial, the juror claimed he had not seen defendant and that his decision not to pursue the issue was a matter of strategy. State v. Cox, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 803 (Tenn. Oct. 17, 2016).

Trial counsel was not ineffective for failing to challenge a search warrant because defendant did not present any evidence that he had a reasonable expectation of privacy in the room that was searched in his mother's house; the proof at trial showed that defendant sometimes visited his mother's house but had only spent one night there more than a month before the search, and he did not have a key to the house and had been prohibited by his mother from entering the house without a key.[ State v. Cox, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 803 (Tenn. Oct. 17, 2016).

Trial court properly denied petitioner post-conviction relief from his convictions for selling Schedule I and Schedule II controlled substances in a drug-free zone where he failed to prove that his counsel was ineffective, as there was no credible evidence in the record that counsel misrepresented to petitioner the amount of jail credit he would receive on his sentence. Counsel stated he never advised petitioner that he would receive jail credits on the new case for time he had already served on prior sentences. Walker v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 273 (Tenn. Crim. App. Apr. 12, 2016).

Contrary to the inmate's claim, trial counsel testified that he had numerous discussions with the inmate advising him against testifying, but the inmate insisted, and he explained to the inmate the concept of “opening the door” and gave the inmate specific examples of things to avoid saying. Vaughn v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 616 (Tenn. Aug. 19, 2016).

It was not deficient performance on the part of trial counsel to fail to argue that text messages should have been suppressed, a legal theory which, at the time, lacked statutory or precedential support. Vaughn v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 616 (Tenn. Aug. 19, 2016).

Inmate failed to prove that counsel was deficient for failing to convey a plea offer of six years' probation, as counsel credibly testified he relayed plea offer but inmate rejected it because he did not want to be on probation that long. Vaughn v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 616 (Tenn. Aug. 19, 2016).

Other than petitioner's testimony, no evidence was presented to support his claim that he and the victim knew each other and conspired in the robbery; the State provided a letter at the post-conviction hearing, written by petitioner, in which he confessed to robbing the convenience store, and while he contended that the victim's phone records would have shown they were in contact prior to the robbery and damaged her credibility at trial, he did not offer those phone records, and counsel's representation was not ineffective and petitioner was not entitled to relief. Crawford v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. Mar. 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 583 (Tenn. Aug. 19, 2016).

Counsel testified that he explained the terms of the State's plea offer with petitioner, plus the trial court provided him with a detailed explanation of his rights; petitioner stated that he understood the terms and consequences of the plea agreement, and thus he failed to prove that his guilty plea was involuntary and unknowing, and he was not entitled to relief. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 718 (Tenn. Sept. 26, 2016).

Petitioner failed to identify or call any witnesses who might have changed the outcome of his trial, and counsel testified that he investigated petitioner's potential alibi witness but could not establish an alibi; beyond petitioner's own testimony, which was discredited by the post-conviction court, he put forth no proof demonstrating that he received ineffective assistance, and thus he was not entitled to post-conviction relief. Williams v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. Apr. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 718 (Tenn. Sept. 26, 2016).

Defendant failed to show that his counsel was ineffective for advising him to waive his right to appeal his conviction where the trial court accredited counsel's testimony that he discussed the issue with defendant and his sister and that defendant knowingly and voluntarily waived his right to appeal and the transcript of the sentencing agreement was consistent with counsel's testimony. Defendant also failed to allege any potential arguments he would have pursued on appeal. Childs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. Apr. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 601 (Tenn. Aug. 19, 2016).

Defendant failed to show that his counsel was ineffective for failing to adequately inform him of his rights regarding a preliminary hearing where the post-conviction court credited counsel's testimony that he discussed the preliminary hearing with defendant and his sister and they all came to the conclusion that they should not have one. Childs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. Apr. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 601 (Tenn. Aug. 19, 2016).

Defendant failed to show that his counsel was ineffective for failing to impeach the victim with her statement from the progress notes that defendant touched her “lower back exterior” where counsel testified he was unsure if his office had received the document prior to trial and the victim could have easily explained that she meant buttocks when she wrote “lower back exterior.” Childs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. Apr. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 601 (Tenn. Aug. 19, 2016).

Defendant failed to show that his counsel was ineffective for preventing him from invoking his right to testify at trial where the post-conviction court accredited counsel's testimony that defendant made it clear that he did not want to testify and the transcript of the hearing and his signature on a waiver of his right to testify belied defendant's claim that counsel somehow coerced him into not testifying. Childs v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. Apr. 28, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 601 (Tenn. Aug. 19, 2016).

Defendant failed to show that his counsel was ineffective for failing to adequately investigate missing evidence referenced in a media article where counsel presented defendant's proposed plea offers to the State and negotiated an outcome that was favorable to defendant in light of the sentencing exposure he faced at trial, the post-conviction court found that the missing evidence was inconsequential to defendant's case, and counsel testified that she investigated the missing evidence but found that it was unrelated to the present matter. Grace v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 28, 2016).

Defendant failed to show that his counsel was ineffective for failing to request a forensic evaluation of his competency before entry of his guilty plea where counsel testified that defendant had not previously raised an insanity defense and never requested an evaluation, and that defendant proposed three different plea offers and showed a thorough understanding of the evidence, law, and surrounding circumstances of his case. Grace v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 28, 2016).

Petitioner failed to show that his counsel was ineffective, and therefore the lower court properly denied his petition for post-conviction relief, where petitioner failed to offer the names or the testimony of any potential witnesses that he contended counsel should have called, he offered no suggestion about what counsel's more vigorous cross-examination should have been, counsel subpoenaed a witness that failed to appear in court and when post-conviction counsel spoke with the witness she offered no information that would be helpful to the defense. Workman v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. Apr. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 557 (Tenn. Aug. 18, 2016).

Inmate failed to establish deficient performance or prejudice with respect to trial counsel's failure to preserve the two issues on direct appeal, as trial counsel was an experienced advocate who testified he wanted to focus on the sufficiency of the evidence and the argument that the State's key witnesses were unindicted co-conspirators, and he made a “strategic decision” not to raise the issue of the pretrial motions in the motion for new trial. Hudson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. May 3, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 658 (Tenn. Sept. 23, 2016).

Inmate suffered no prejudice from trial counsel's failure to preserve a challenge to the use of the inmate's nickname, “Pistol,” during trial, as use did not saturate the trial and the name was not due to criminal behavior but was given to the inmate by his grandfather before birth. Hudson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. May 3, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 658 (Tenn. Sept. 23, 2016).

Trial counsel was not ineffective for failing to hire a private investigator and failing to visit the crime scene, as counsel testified he did not hire an investigator because he conducted his own private investigation and did not visit the scene because he had access to all the photos and witness statements and did not think it necessary to visit. Minton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. May 4, 2016).

Inmate's claim that trial counsel was ineffective for meeting with him less than 10 times lacked merit, as there was nothing to suggest that further meetings with the inmate would have led counsel to other witnesses to speak with. Minton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 334 (Tenn. Crim. App. May 4, 2016).

Petitioner failed to show that he received ineffective assistance of counsel, and thus he was not entitled to post-conviction relief; counsel learned on the morning of trial that petitioner's alibi was fabricated, and thus counsel had reason to believe that pursuing other investigations would have been fruitless, counsel testified that there never was a formal plea offer to petitioner, and his claim that counsel never conveyed an offer was discredited, plus petitioner failed to show that the trial's outcome would have been different had counsel objected to certain relevant testimony. Pearson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. May 13, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 806 (Tenn. Oct. 19, 2016).

Petitioner failed to show that he received ineffective assistance of counsel, and thus he was not entitled to post-conviction relief; petitioner failed to show how requesting a bill of particulars would have provided information about the State's theory of premeditation, and petitioner provided no evidence of what a bill of particulars would have revealed, outside of his speculation that it would show there was no evidence of premeditation. Pearson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. May 13, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 806 (Tenn. Oct. 19, 2016).

Petitioner failed to show that his trial counsel was ineffective for failing to file a motion to suppress his statement to police because it was a reasonable, strategic decision given that petitioner's statement was the only proof supporting his self-defense claim and other than the conflicting testimony of himself and his mother petitioner offered no evidence that his statement would have been suppressed had a motion been filed. Abston v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. May 17, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 620 (Tenn. Aug. 18, 2016).

Defendant did not meet defendant's burden of showing by clear and convincing evidence that defendant was entitled to post-conviction relief, based upon trial counsel's failure to provide effective assistance, because the witnesses whom defendant proposed to have testify were either not able to testify about the alleged rape incident or were a liability due to their having been victims of a robbery by defendant. Moreover, trial counsel chose a reasonable strategy of impeaching the victim because of the victim's multiple inconsistent statements. Cooper v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 412 (Tenn. Crim. App. June 3, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 549 (Tenn. Aug. 18, 2016).

Post-conviction court did not err in finding that petitioner had not proven by clear evidence that he had received ineffective assistance of counsel, as one of the prosecutors testified that he did not observe counsel sleeping during the trial and that it seemed that counsel was paying attention, plus as to other claims, petitioner failed to prove prejudice; the evidence against him was overwhelming, counsel presented the only plea offer given by the State, and petitioner failed to show a connection between counsel's subsequent disbarment and petitioner's claims. Flores v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 789 (Tenn. Oct. 19, 2016).

Evidence did not preponderate against the post-conviction court's findings that counsel effectively negotiated and conveyed the 25-year offer to petitioner and effectively cross-examined a witness by successfully showing inconsistencies in his testimony, and further that counsel was not deficient by failing to request a mistrial; petitioner was not entitled to post-conviction relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Although counsel might have doubted whether the victim's injuries were caused by an automobile collision, counsel had a duty to investigate this, and thus the conclusion that counsel was deficient by failing to investigate, including obtaining a medical expert to review the autopsy report, was supported; however, petitioner failed to establish he was prejudiced because he did not present an independent forensic pathologist expert at the post-conviction hearing, and he was not entitled to relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Although the loss of the toxicology report was not condoned, the loss of the report and failure to present the results at the trial did not constitute deficient performance and petitioner was not entitled to post-conviction relief; petitioner's blood alcohol concentration was determined at least five days after the victim's death, would have had no evidentiary value at the trial, and would not have been relevant to show his conduct was mitigated by intoxication. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Record supported the post-conviction court's finding that counsel did not engage in any meaningful pretrial investigation as to the collision in question, and counsel's failure to investigate constituted deficient performance; however, prejudice was not shown, as the evidence against petitioner was overwhelming, and he failed to show that the outcome of his trial would have been any different had counsel presented an expert accident reconstructionist, and thus petitioner was not entitled to post-conviction relief. Stewart v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 766 (Tenn. Oct. 19, 2016).

Petitioner failed to show that his counsel was ineffective for failing to file a motion to suppress the evidence obtained during the search of the house and the curtilage, and therefore he was properly denied post-conviction relief, where counsel's strategy at trial was to establish that defendant was not staying at the house and was unaware of the illegal activity in the house, therefore he would not have standing to file a motion to suppress. Stanford v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 516 (Tenn. Crim. App. July 19, 2016).

Petitioner failed to show that his counsel was ineffective for failing to explain the State's plea offer adequately or the sentence he faced at trial where counsel testified that he explained each of the two plea offers to petitioner and he rejected the offers and wanted to proceed to trial because he did not live at the house and had not committed a crime. Stanford v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 516 (Tenn. Crim. App. July 19, 2016).

Petitioner failed to show that his counsel was ineffective for failing to call a witness to testify where it was clear from the record that the decision was made after adequate preparation and careful consideration given counsel's concern regarding the witness' credibility based on her inconsistent statements and his prior experience with her as an unreliable witness. Cox v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 894 (Tenn. Nov. 22, 2016).

Petitioner failed to show that his counsel was ineffective for failing to adequately advise him regarding lifetime supervision as a consequence of his guilty plea, and therefore he was properly denied post-conviction relief, where, during the plea submission hearing, the State raised the issue of lifetime supervision, both the trial court and counsel discussed the requirement with petitioner, and petitioner proceeded with the hearing and submitted a best interest plea to the charges. Cox v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 521 (Tenn. Crim. App. July 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 894 (Tenn. Nov. 22, 2016).

Inmate failed to prove he received ineffective assistance of counsel, as counsel testified that he advised the inmate to take the State's plea bargain offer because it was highly likely that the inmate would be convicted of first degree murder if he went to trial and the inmate expressed his understanding of the implications of his decision to plead guilty, affirmed he did not wish to proceed to trial, and had ample opportunities to express any misunderstanding of his plea. Elliott v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 546 (Tenn. Crim. App. July 26, 2016).

Inmate failed to show that his guilty plea was unknowing and involuntary due to counsel's ineffective assistance, as the record demonstrated that the inmate and trial counsel discussed in detail the discovery provided by the State, counsel explained to the inmate that the confidential informant's death did not affect the State's ability to prosecute him because the State had another witness, and the inmate knew the identity of the informant before his decided to plead guilty. Ramsey v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 572 (Tenn. Crim. App. Aug. 8, 2016).

Petitioner was not entitled to post-conviction relief on his claim that his trial counsel was ineffective for failing to request a mistrial during a sergeant's testimony where counsel made a hearsay objection that was sustained, and in the overall context of the trial and in view of the DNA and other evidence against petitioner, any inference that the jury may have drawn that more than one person saw the victim and petitioner together was inconsequential. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 779 (Tenn. Oct. 21, 2016).

Petitioner was not entitled to post-conviction relief on his claim that his trial counsel was ineffective for failing to file a motion to suppress evidence as a result of police questioning and collection of DNA evidence from him on the day after the victim's body was discovered where the totality of proof showed that a reasonable person in petitioner's position would not have thought that he was under arrest, as from the beginning of the encounter petitioner indicated his desire to talk to the police and accompanied them voluntarily to the police department. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 779 (Tenn. Oct. 21, 2016).

Petitioner was not entitled to post-conviction relief on his claim that his trial counsel was ineffective for failing to request an in camera inspection of a witness' medical or psychiatric records for exculpatory evidence given the witness' history of schizophrenia, where counsel made a strategic decision based on his belief that presenting evidence of the diagnosis would alienate the jury. No evidence suggested that an in camera review would have yielded any information that would assisted the defense. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 779 (Tenn. Oct. 21, 2016).

Petitioner was not entitled to post-conviction relief on his claim that his trial counsel was ineffective for failing to object to the State's DNA expert's report and testimony where petitioner failed to prove that the expert did not conduct the testing personally and therefore no confrontation or hearsay issues existed. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 779 (Tenn. Oct. 21, 2016).

Petitioner was not entitled to post-conviction relief on his claim that his trial counsel was ineffective for failing to call an impeachment witness where petitioner did not explain how, given the evidence that he had been with the victim near the park on the night of the offense, counsel's failure to present the witness' testimony was prejudicial. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 779 (Tenn. Oct. 21, 2016).

Petitioner was not entitled to post-conviction relief on his claim that his trial counsel was ineffective for failing to retain a defense DNA expert where he offered no proof that defense DNA testing would have revealed favorable evidence, as the DNA testing that was conducted failed to reveal the presence of any third-party DNA profile. Jones v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 779 (Tenn. Oct. 21, 2016).

Petitioner failed to produce the testimony of a DNA expert at the hearing, and thus it could not be assessed what impact such testimony would have had at trial; petitioner failed to prove that he was prejudiced by counsel's decision in this respect, and he was not entitled to post-conviction relief. Barrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 961 (Tenn. Dec. 14, 2016).

Petitioner failed to introduce any results of independent DNA testing and offered no explanation as to how he was prejudiced by the absence of such testing, and trial counsel made a decision not to request independent testing based on consultation with an expert and the conclusion that additional testing would not be helpful; although counsel expressed regret in hindsight that he did not request independent testing, at the time he made a reasonable strategic decision, and petitioner was not entitled to post-conviction relief. Barrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 961 (Tenn. Dec. 14, 2016).

Witness was not called at the evidentiary hearing and thus it was unclear what the witness would have actually testified to and what impact, if any, that testimony would have had on the outcome of trial; thus, petitioner did not show prejudice and he was not entitled to post-conviction relief. Barrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 610 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 961 (Tenn. Dec. 14, 2016).

Defendant did not show that, but for counsel's failure to file a motion to sever the especially aggravated kidnapping charge from aggravated robbery charges, there was a reasonable probability that he would not have been convicted of especially aggravated kidnapping. The robbery evidence was helpful as a means to provide the contextual background or full story for the kidnapping and the prosecutor's recount of the robbery was not improper given that it did provide a motive for the kidnapping charge before the jury. Little v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. Aug. 19, 2016).

Defendant did not prove that trial counsel provided deficient performance by failing to interview a potential witness because, without information regarding trial counsel's attempts to locate and interview the potential witnesses at the time of trial, the appellate court was unable to assess counsel's performance in this regard. The simple fact that the witness did not actually testify at trial did not establish that trial counsel's performance was deficient. Little v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. Aug. 19, 2016).

Defendant did not prove that defense counsel's performance was deficient because, based on the information which counsel had at the time, counsel made a reasonable decision to call a witness whom counsel believed would have provided favorable testimony. Although the testimony of the witness was subsequently rebutted by the testimony of a police officer, defendant failed to prove that defendant was prejudiced as it could not be concluded that the outcome of the proceeding would have been different if the witness had not been called. Little v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. Aug. 19, 2016).

Trial counsel was not ineffective in failing to challenge defendant's Range II sentencing based upon defendant's prior convictions, because the convictions were not void based upon the trial court's failure to complete a separate judgment form for each conviction. Moreover, defendant did not show that defendant was prejudiced by counsel's failure to challenge the Range II classification. Yokley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 661 (Tenn. Crim. App. Sept. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 29 (Tenn. Jan. 19, 2017).

Without proof regarding appellate counsel's decision-making process in choosing the issues to be raised on appeal, the record failed to show clear and convincing evidence that appellate counsel's performance was deficient. Moreover, defendant failed to present clear and convincing evidence that defendant was prejudiced by appellate counsel's representation relative to the non-disclosure of the facts surrounding a police officer's employment termination. Yokley v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 661 (Tenn. Crim. App. Sept. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 29 (Tenn. Jan. 19, 2017).

On direct appeal, it was determined that any incidents of alleged prosecutorial misconduct did not affect the outcome of the trial, and thus petitioner had not proven by clear and convincing evidence that he was prejudiced by counsels' failure to object to the State's closing argument, and petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Post-conviction court did not err in finding that petitioner had not proven by clear and convincing evidence, that he had received the ineffective assistance of counsel; co-counsel, who had medical training and experience, stated that his review of the medical records led him to the same conclusions as the State's expert, both counsels testified that after reviewing the proposed defense expert's affidavit, they still believed that his testimony would not have benefited the case, and thus he was not prejudiced by counsels' failure to retain an expert witness and petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Petitioner failed to establish that co-counsel had an actual conflict of interest; petitioner knew co-counsel had worked with the hospital experts and he was fine with co-counsel still representing him, co-counsel's interaction with these experts did not present an actual conflict in that he was not representing differing interests, plus co-counsel was not hindered in his ability to cross-examine the experts, and thus petitioner was not entitled to post-conviction relief. Barlow v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Sept. 9, 2016).

Post-conviction court erred when it denied petitioner post-conviction relief, as counsel was ineffective for failing to accurately inform petitioner that his sentence was not eligible for sentencing credit and that he would be required to serve the 15-year sentence day-for-day; petitioner, relying on Counsel's advice, was significantly misinformed, given that petitioner was required to serve two years and three months more than counsel had stated, and thus petitioner's plea was not knowing and voluntary. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 677 (Tenn. Crim. App. Sept. 9, 2016).

Defendant was not entitled to post-conviction relief because defendant failed to show that defendant's guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of counsel. Defendant failed to show that counsel was deficient in the investigation or preparation of defendant's cases, or that defendant would have insisted on proceeding to trial but for the ineffective assistance of counsel, while the trial court properly and thoroughly explained the nature and consequences of defendant's guilty plea. Gray v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 16, 2016).

Petitioner was properly denied post-conviction relief on his claim that he was denied effective assistance of counsel where the record showed that the delay in the delivery of the discovery materials to petitioner in prison was not due to any deficiency on the part of trial counsel and counsel testified that he met with petitioner many times, he ensured that petitioner understood the charges against him and potential sentences, and that he explained the State's plea offer to him, specifically that he would be sentenced to a term of 25 years at 100%. Cartwright v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 19, 2016).

Post-conviction court found trial counsel's testimony credible and found that nothing in the record indicated that counsel failed to meet with the inmate and keep him informed of the proceedings, or failed to prepare a strategy. Washington v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 715 (Tenn. Crim. App. Sept. 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 968 (Tenn. Dec. 15, 2016).

Trial counsel was not ineffective for failing to file a motion to suppress, as she testified she reviewed the search warrant but found no legal basis under which to contest probable cause, and the post-conviction court found that the inmate provided no legal basis for suppression at the post-conviction hearing. Washington v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 715 (Tenn. Crim. App. Sept. 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 968 (Tenn. Dec. 15, 2016).

Counsel was not ineffective for failing to filed a motion to recuse, as the inmate failed to prove that the trial court would have granted such a motion or that the motion would have affected the course of his trial if it had been granted, as noting showed that the judge could not be impartial because the inmate had previously been sentenced in the judge's court. Washington v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 715 (Tenn. Crim. App. Sept. 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 968 (Tenn. Dec. 15, 2016).

Counsel informed petitioner that his initial sentencing advice was incorrect and that a life sentence would require petitioner to serve a minimum of 51 years before she was eligible for release, and counsel testified that petitioner understood this; thus, petitioner failed to establish deficient performance on the part of counsel based upon his advice. Garrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 717 (Tenn. Crim. App. Sept. 22, 2016).

Waiver of the issue notwithstanding, the plea submission hearing transcript showed that the trial court conducted a thorough colloquy with petitioner and accepted her plea as knowingly and voluntarily made; it was the duty of counsel to inform petitioner that she would serve a minimum of 51 years on a life sentence, and counsel's accredited testimony was that he explained this to petitioner, and thus her plea was knowing and voluntary and ineffective assistance of counsel was not shown. Garrett v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 717 (Tenn. Crim. App. Sept. 22, 2016).

Trial counsel did object to statements by the investigator that he visited petitioner in jail to obtain a DNA sample because counsel saw no need to do so based on the theory of defense he was pursuing; this was a strategic decision made by trial counsel, to which deference was given, plus prejudice was not demonstrated, as the short colloquy would not have had an impact on the verdict in this case, and petitioner was not entitled to post-conviction relief. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Trial counsel cross-examined the eyewitnesses regarding their vantage point and ability to see the altercation, the post-conviction court found that trial counsel was well-prepared for trial, and petitioner was not entitled to relief on ineffective assistance of counsel grounds. Lewis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 722 (Tenn. Crim. App. Sept. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 38 (Tenn. Jan. 20, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel was not ineffective for failing to request a change of venue because trial counsel decided not to seek a change in venue as he was able to select a jury he felt was fair and impartial from the first panel; and because trial counsel testified that in his experience the alternative venue was usually a more rural East Tennessee county, and he did not think that defendant would draw a more favorable jury in such a county. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because, with regard to the transparencies admitted at trial, defendant failed to show that the State committed prosecutorial misconduct in its closing argument that it was defendant's vehicle shown on the transparencies, and thus counsel was not ineffective for failing to object. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel explained that he decided not to introduce the bank's tape of vehicles passing the bank between 12:15 and 12:30 p.m. on the day of the offense at trial because, according to the timeline presented by the State at trial, the crime occurred sometime between 11:50 and 12:00 p.m.; the tape did not show defendant's vehicle and therefore had no probative value; and defendant failed to establish that he suffered prejudice as a result of the State's disclosure of the bank tape 12 days prior to trial given that the tape lacked probative value. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied because trial counsel was not ineffective for failing to call a professor as an expert witness at trial as trial counsel testified that his primary reason for not calling the professor was because he did not think a jury would find his explanation that the transparencies were not of sufficient quality to allow for the identification of defendant's vehicle persuasive; and counsel was concerned that calling the professor would open the door to the State calling a rebuttal expert witness that had previously been excluded as the State's rebuttal witness would have been devastating to defendant's case. Fields v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Sept. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 21 (Tenn. Jan. 19, 2017).

Trial counsel was not ineffective for failing to challenge an alleged impermissibly suggestive lineup, as the trial testimony showed that the victim's nephew was shown more than one photo and had provided a description of the inmate, his car, and the hat he was wearing the night of the murder, enabling him to make the identification quickly once shown a photo. Braseel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Oct. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 128 (Tenn. Feb. 24, 2017).

Post-conviction court improperly concluded that the inmate received ineffective assistance of counsel for trial counsel's failure to file a motion to suppress, as the inmate failed to demonstrate that such a motion would have been successful since the identification by the nephew was not impermissibly suggestive. Braseel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Oct. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 128 (Tenn. Feb. 24, 2017).

Although trial counsels' failure to request a jury instruction on identity was deficient, the record reflected no circumstances surrounding the pretrial identifications that would derogate from those identifications or the witnesses' identifications at trial. Braseel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Oct. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 128 (Tenn. Feb. 24, 2017).

Record supported the post-conviction court's conclusion that petitioner received effective assistance of counsel where counsel ordered a mental health evaluation for petitioner and the results showed that he was competent to stand trial, and counsel discussed the plea offer with petitioner. Singleton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. Oct. 17, 2016).

Post-conviction court correctly concluded that counsel's failure to file a motion to suppress petitioner's statement did not amount to ineffective assistance where petitioner failed to present any evidence to suggest that the trial court would have granted such a motion. Singleton v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. Oct. 17, 2016).

Petitioner was properly denied post-conviction relief on his claim that trial counsel was ineffective for failing to raise issues other than sufficiency of the evidence in the original motion for new trial because no evidence was elicited at the post-conviction hearing regarding counsel's decision not to do so. Jaimes-Garcia v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 18, 2016).

Petitioner was properly denied post-conviction relief on his claim that trial counsel was ineffective for failing to negotiate a plea agreement where the record showed that although counsel attempted to negotiate a plea agreement, the prosecutor refused to do so unless all of the co-defendants would agree to plead guilty, which they did not. Jaimes-Garcia v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 18, 2016).

Petitioner had not shown that more frequent communication or further investigation would have led to a reasonable probability that the outcome of the trial would have been different, and his convictions were supported by overwhelming evidence, and thus petitioner failed to establish any sort of prejudice for ineffective assistance of counsel purposes, and he was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Counsel was not deficient in questioning the victim about an assault perpetrated by another person, thereby opening the door to evidence regarding prior abuse that the victim suffered at the hands of petitioner; this was a strategic decision and did not affect the results of the trial, and there was no reasonable probability that admitting this evidence would have affected the outcome, and thus petitioner was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Because the jury was charged with and rejected the intervening lesser-included offense of rape, petitioner could not show any prejudice from the failure to charge sexual battery or aggravated sexual battery as a lesser-included offense of aggravated rape; given that the proof established that the victim was sexually penetrated and sustained injuries, there was no reasonable probability that the jury would have convicted petitioner on any lesser-included offenses, and thus he was not entitled to post-conviction relief on the grounds of ineffective assistance. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Trial counsel's failure to require DNA testing was not deficient because testing could not have been conducted with the technology in existence at the time and also because choosing to avoid testing was a reasonable trial strategy; petitioner was not entitled to post-conviction relief. Medlock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 792 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 127 (Tenn. Feb. 21, 2017).

Trial court conducted a thorough examination to ensure that petitioner understood the rights he was waiving, and the post-conviction court credited counsel's testimony that petitioner was aware that the sentence was for 30 years' imprisonment, plus the plea hearing transcript showed that petitioner acknowledged his understanding; the evidence against him was a strong inducement to plead guilty to avoid a greater penalty, and thus the plea was knowing and voluntary, counsel was not ineffective, and petitioner was not entitled to post-conviction relief. Townsel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Oct. 21, 2016).

Petitioner did not substantiate his claim that counsel failed to disclose additional exculpatory evidence to him and failed to explain the extent of the State's proof; the testimony of counsel established that petitioner was informed of the evidence known prior to the plea agreement, and petitioner failed to show that counsel acted deficiently in communicating with him or that he suffered any prejudice, and he was not entitled to post-conviction relief. Townsel v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Oct. 21, 2016).

Only proof in support of claims of ineffective assistance was petitioner's and trial counsel's testimony, and the post-conviction court accredited trial counsel's testimony and completely discredited petitioner's testimony, which was not reviewed on appeal; petitioner failed to establish deficient performance or prejudice and he was not entitled to relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

Petitioner neither specified what discovery he wanted, nor described how the discovery would have affected his decision to go to trial, and thus he failed to establish deficient performance or prejudice resulting from trial counsel's failure to request the discovery, and petitioner was not entitled to post-conviction relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

Petitioner had not alleged that his proffer testimony was coerced or otherwise falsely given, and trial counsel did not have advanced notice that a proffer would be requested and he did speak with petitioner; he failed to show how trial counsel failed to prepare him for the proffer in this case and petitioner was not entitled to post-conviction relief. Thomas v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 840 (Tenn. Crim. App. Nov. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 153 (Tenn. Feb. 28, 2017).

It was clear from the testimony at the post-conviction hearing that appellate's counsel's decision not to raise the issue of consecutive sentencing on direct appeal was a strategic one and therefore petitioner was properly denied post-conviction relief. Neighbours v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 852 (Tenn. Crim. App. Nov. 14, 2016).

Because there was no transcript of closing arguments, the court was unable to consider the context of the prosecutor's comments within the overall argument and determine if the conduct was so improper or the argument so inflammatory that it affected the verdict to petitioner's detriment. Neighbours v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 852 (Tenn. Crim. App. Nov. 14, 2016).

Doctor testified that the hymenal notch was an indeterminate finding that neither indicated nor excluded sexual assault, and petitioner did not offer any additional proof regarding the interpretation of this finding; the record did not support a conclusion that the evidence would have been admissible under the rule's limited exception to the general rule of exclusion of evidence of a victim's other sexual behavior, and deficient representation was not shown. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

When considered in context, the complained-of questioning by the petitioner's attorneys was brief and occurred in the context of overall thorough cross-examination of two State witnesses, and the questions were not posed based upon an assumption that the victim's underlying statement had been truthful; petitioner failed to establish that his attorneys performed deficiently. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Victim's statement about petitioner having “freaked on” her was made during the course of the interview, and the victim's statement to the doctor was made for the purposes of medical diagnosis and treatment; petitioner failed to show that his attorneys provided deficient performance by not objecting, and prejudice was not shown. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

This rule pertains to admission of otherwise hearsay statements that qualify as prior inconsistent statements of a testifying witness, but petitioner had not explained this rule's relevance to the present case and none was found, and thus petitioner failed to show that his attorneys should have requested a hearing to determine the trustworthiness of a prior inconsistent statement of a testifying witness. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Import of the testimony was to explain why the witness took the victim to the hospital, not to prove petitioner's conduct toward the victim, and thus petitioner failed to show that his trial attorneys provided deficient performance when they did not make a hearsay objection; in any event, prejudice was not shown. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Decision to attack a witness's testimony in closing argument was a strategic decision entitled to deference and petitioner failed to establish ineffective assistance in this regard, in light of the trial court's pretrial determination that the witness had not asked leading questions in the interview and the ruling admitting the evidence. Davis v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 16, 2016).

Post-conviction court did not err in denying defendant's petition for relief because the court accredited trial counsel's testimony that counsel informed defendant of the State of Tennessee's sentencing offer, that counsel tried to get defendant a lesser offer, that counsel met with defendant numerous times prior to trial, that counsel reviewed the discovery materials and discussed trial strategy with defendant, and that counsel never told defendant that the State's offer included a percentage of service of defendant's sentence. Bobo v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 865 (Tenn. Crim. App. Nov. 16, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 157 (Tenn. Feb. 28, 2017).

Trial counsel was not deficient in failing to communicate to the inmate the possible consequences of proceeding to trial, as the evidence supported the post-conviction court's finding that trial counsel was credible when counsel testified that she informed the inmate of the possible sentencing ranges and the inmate adamantly told her he did not want to plead guilty and did not authorize her to negotiate with the State for a plea offer. Mills v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Nov. 21, 2016).

While trial counsel was deficient in failing to request an accomplice testimony jury instruction, the inmate was not entitled to relief on that basis, because the inmate failed to establish prejudice in light of the evidence that police officer found the inmate hiding in the victims' house and the victims identified the inmate as an assailant. Mills v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 875 (Tenn. Crim. App. Nov. 21, 2016).

Petitioner did not introduce any evidence regarding what a more thorough investigation of a particular telephone call would have uncovered, and even if trial counsel was deficient by not interviewing one witness, he did not testify during the post-conviction hearing, and thus petitioner could not establish prejudice and was not entitled to post-conviction relief. Muhammad v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Nov. 22, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 221 (Tenn. Apr. 13, 2017).

Unavailability of a recording did not render testimony about a telephone call inadmissible under the best evidence rule, and because an objection based on the rule would not have resulted in exclusion of the testimony, petitioner failed to establish that trial counsel was deficient, plus counsel said he did not object based on strategic grounds; in any event, any deficiency did not result in prejudice in light of the strong evidence of guilt and petitioner was not entitled to post-conviction relief. Muhammad v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Nov. 22, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 221 (Tenn. Apr. 13, 2017).

Petitioner's fingernail merely corroborated her presence at the scene, trial counsel elicited petitioner's testimony that she did not shoot the victims, and questioning her about other times she might have worn a glove would not have diminished the incriminating nature of the facts, such that petitioner failed to prove her ineffective assistance claim and thus she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Dismissal of one count charging first degree premeditated murder would have availed petitioner no benefit because no issue existed with regard to the counts charging felony murder; petitioner failed to establish deficient performance by counsel and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Trial counsel's testimony reflects that he considered the issues and raised the ones he thought held the possibility for appellate relief, and he did not raise issues for which he thought the possibility of relief did not exist; petitioner failed to establish deficient performance by counsel and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Petitioner did not testify about which items of clothing were hers, and thus the post-conviction court was without a basis for determining how it might have corroborated her testimony and demonstrated that she was not the shooter; the State relied upon a criminal responsibility theory as to petitioner, and she admitted her presence and participation in the offenses, and thus she failed to establish deficient performance by counsel and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Petitioner did not articulate a constitutional basis for suppressing certain evidence, and thus she failed to carry her burden of establishing deficient performance by counsel and prejudice, and she was not entitled to post-conviction relief. Myers v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 880 (Tenn. Crim. App. Nov. 23, 2016).

Petitioner failed to show that counsel was ineffective for failing to interview the lead detective; there was ample evidence that counsel thoroughly investigated and prepared this case, the evidence against petitioner was overwhelming, and petitioner failed to show that had the detective been interviewed, counsel would have been better prepared for trial; petitioner was not entitled to post-conviction relief. Glover v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Dec. 12, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 119 (Tenn. Feb. 16, 2017).

Petitioner did not prove by clear and convincing evidence that he had received the ineffective assistance of counsel; certain witnesses would not have aided in the defense strategy, plus petitioner failed to present these witnesses at the hearing and show that counsel could have located them. Glover v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 929 (Tenn. Crim. App. Dec. 12, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 119 (Tenn. Feb. 16, 2017).

Inmate was not entitled to post-conviction relief for counsel's failure to object to the State's sentencing statements that the inmate's crimes involved more than one victim, due to a victim's pregnancy, after which the sentencing court allegedly misapplied the multiple victim sentencing enhancement factor, because the inmate showed no prejudice, by clear and convincing evidence, as (1) the State had a good faith basis for asking about the inmate's knowledge of the victim's pregnancy, (2) the inmate's sentences were within applicable ranges, (3) three other enhancement factors were properly applied, and (4) the court properly heard testimony that the inmate held a knife to the victim's stomach and saw video footage showing the victim was visibly pregnant. Bush v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 33 (Tenn. Crim. App. Jan. 18, 2017).

Inmate's trial counsel was not ineffective for failing to adequately prepare him to testify at trial because counsel testified that he met with the inmate 37 times prior to trial, they discussed the inmate's proposed testimony and the potential negative consequences of it, including the possibility that his prior criminal record might be used against him, and the inmate confirmed at his Momon hearing that it was his decision not to testify. Watts v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 27, 2017).

Inmate's trial counsel was not ineffective for failing to file a motion for limine to exclude reference to the facts that the victim's mother lived in the projects and defendant lived on the streets because counsel testified that rather than filing a motion he questioned potential jurors during voir dire regarding potential bias caused by the inmate's economic status, which was a strategic decision made after adequate preparation for trial. Watts v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 27, 2017).

Inmate's trial counsel was not ineffective for failing to subpoena 13 witnesses because the inmate failed to call 12 of the witness testify at his post-conviction hearing and as to the one witness that the inmate did call, counsel testified that neither the inmate nor the witness advised him that the witness had been in the home on one of the dates of abuse. Watts v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 27, 2017).

In a second degree murder case, post-conviction relief was properly denied because counsel was not shown to be ineffective under the federal or state constitutions for failing to argue self-defense at trial and failing to request a jury instruction on the issue. The decision to use the defense of misidentification instead did not amount to deficient performance because this was a strategic decision that was determined to be well-founded. Mason v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 14, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 335 (Tenn. May 22, 2017).

Inmate's ineffective assistance claim lacked merit, as counsel testified that he informed the inmate that he faced 24 years as a maximum potential sentence, the inmate's mother testified that counsel advised them that the maximum sentence the inmate faced was 24 years, and the transcript from the guilty plea hearing reflecting that the trial court clearly and methodically informed the inmate of his rights and the inmate stated he was satisfied with counsel's representation. Tomlin v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 17, 2017).

Post-conviction court concluded that the lineup procedure was neither suggestive nor unreliable, and trial counsel's decision not to file a motion to suppress the identification was a tactical decision entitled to deference; even if the identification had been excluded, there was still other evidence that petitioner was the perpetrator, and a motion to suppress the identification would have been unsuccessful, and thus petitioner was not entitled to post-conviction relief. Gatewood v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 362 (Tenn. June 7, 2017).

Petitioner failed to prove that trial counsel provided ineffective assistance by failing to file a motion to suppress a search of his cellphone because petitioner did not prove that the motion would have been successful; it could not be determined whether he abandoned his expectation of privacy in the cellphone when he left the crime scene, and it could also not be determined if the search of the phone was justified by exigent circumstances, and he was not entitled to post-conviction relief. Gatewood v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 362 (Tenn. June 7, 2017).

Post-conviction court properly determined that trial counsel presented the best defense theory possible and petitioner had not presented a reasonable alternative strategy, trial counsel did not obstruct petitioner's ability to testify at trial, and petitioner's claim about potential expert testimony failed because he had not presented expert testimony at the evidentiary hearing; he was not entitled to post-conviction relief. Gatewood v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 362 (Tenn. June 7, 2017).

Defense counsel was not ineffective concerning petitioner's guilty plea, and therefore petitioner was not entitled to post-conviction relief, because counsel was not ineffective for failing to explain to petitioner that the kidnapping could have been incidental to the robbery and at the guilty plea hearing the trial court reviewed all of the aspects of the plea with petitioner, who expressed his understanding and affirmed that he did not wish to proceed to trial. Burdette v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 115 (Tenn. Crim. App. Feb. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 367 (Tenn. June 8, 2017).

Petitioner was not entitled to post-conviction relief on the grounds of ineffective assistance; trial counsel did not remember a meeting with any kisses between petitioner and co-defendant, petitioner's girlfriend, which petitioner claimed happened to convince him to plead guilty, and trial counsel denied telling petitioner that he would receive an all-white jury if he proceeded to trial. Valentine v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. Feb. 23, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 321 (Tenn. May 18, 2017).

Defendant failed to establish at a post-conviction hearing that defendant received ineffective assistance of counsel because defendant, by failing to present the testimony of counsel and defendant as to counsel not showing a video of defendant's performance on field sobriety tests to defendant before trial, failed to present clear and convincing evidence of counsel's deficiency. Moreover, defendant failed to present any evidence establishing other proof that counsel could have presented had counsel shown the video to defendant before trial. Hicks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 136 (Tenn. Crim. App. Feb. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 258 (Tenn. Apr. 12, 2017).

Trial counsel was not deficient for failing to obtain independent testing of a palm print match, as counsel had no more than a suspicion that something could be wrong with the match and an expert told counsel he would need more than that for an expert to question the veracity of the palm print evidence. Calhoun v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 137 (Tenn. Crim. App. Feb. 28, 2017).

Inmate's claim that trial counsel was ineffective for failing to inform her that she could not be sentenced to death failed, because he informed the inmate of that fact. Calhoun v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 137 (Tenn. Crim. App. Feb. 28, 2017).

Defendant could not show prejudice stemming from any alleged omissions by counsel in a negotiated sentence for a failure to appear conviction by counsel failing to challenge an agreed order declaring defendant a habitual motor vehicle offender (MVHO) as defendant failed to appear to serve defendant's prison sentences for theft, reckless endangerment, and resisting arrest in addition to the sentence for the MVHO violation. Defendant was obligated to appear in court and begin serving sentences regardless of the validity of the MVHO order Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 143 (Tenn. Crim. App. Mar. 1, 2017).

Trial counsel's failure to ask the witnesses about the location of the gunshot wound or the path of the bullet did not amount to ineffective assistance, as the inmate presented no evidence at the post-conviction hearing about how any hypothetical questions would have changed the outcome of the trial, and counsel said he did not approach the witnesses because his theory of the case was that the shooting was accidental and that he intended to present this theory through the inmate's testimony. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. Mar. 1, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 379 (Tenn. June 7, 2017).

Inmate failed to show that he received ineffective assistance based on counsel's advice to plead guilty when counsel was prepared to go to trial and had developed a strategy but advised the inmate to plead guilty because of the fact that confidential informant could identify the inmate personally and the inmate was subject to a lengthy sentence if found guilty by a jury. Nevils v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. Mar. 1, 2017).

Inmate's claim that trial counsel was ineffective for failing to advise the inmate he could be impeached with his prior convictions was belied by a letter in which counsel told the inmate his testimony would be questionable due to his extensive criminal history. Davenport v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 163 (Tenn. Crim. App. Mar. 6, 2017).

Inmate's claim that trial counsel was ineffective for failing to meet with him before the trial to formulate a defense failed, as the inmate's testimony was at odds with that of counsel, who testified that he reviewed the case in detail with the inmate on at least four occasions. Davenport v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 163 (Tenn. Crim. App. Mar. 6, 2017).

Inmate's claim that trial counsel was ineffective for failing to file a motion to suppress failed because counsel testified that he reviewed the relevant documents and determined that no legal basis existed to challenge the search warrant and the inmate failed to show that he would have prevailed on a motion to suppress. Davenport v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 163 (Tenn. Crim. App. Mar. 6, 2017).

Counsel was not ineffective for failing to request a mental health evaluation for petitioner because counsel testified that she looked for grounds to request an evaluation but could not find any, petitioner could not give counsel a reason to request the evaluation, and petitioner failed to produce any evidence at the post-conviction hearing regarding his pas or current mental health treatment. Burrell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 9, 2017).

Counsel did not submit a written request to the trial court regarding the jury instruction, although he did make an oral request and both the trial court and the court considered the issue; although counsel should have filed a written request, petitioner could not establish prejudice because fraudulent use of a credit card was not a lesser-included offense of identity theft, plus his claim had already been determined on direct appeal and could not be relitigated in a post-conviction proceeding. Wilson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. Mar. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 417 (Tenn. July 19, 2017).

Trial counsel's testimony that the police report in the discovery file indicated the hot water heater was not working property and led him to believe further investigation was not necessary as it was not a “smoking gun,” and that further investigation would have cumulative was sufficient to support the post-conviction court's determination counsel was not ineffective for failing to investigate. Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 206 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 318 (Tenn. May 18, 2017).

Trial counsel's testimony that he met with the inmate at least seven times prior to the plea and the inmate received a copy of discovery and thus discussed it, and the fact that the inmate failed to present any witnesses at the hearing on the post-conviction petition who he claimed counsel failed to investigate supported a finding that the inmate did not received ineffective assistance of counsel. Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 206 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 318 (Tenn. May 18, 2017).

Trial counsel was not ineffective for failing to file the motion to withdraw the guilty plea until one month after entry of the plea. Scott v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 206 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 318 (Tenn. May 18, 2017).

To the extent petitioner argued that subsequent counsel provided ineffective assistance because he failed to raise in the written motion for a new trial that trial counsel provided ineffective assistance by failing to rectify petitioner's hearing difficulties, he was not entitled to relief; a transcript showed that petitioner answered questions clearly without complaint of an inability to hear, plus trial counsel informed the trial court of his hearing difficulties, and subsequent counsel did not provide deficient performance in this regard. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Trial counsel was not ineffective for making the decision not to pursue additional DNA testing based on an expert's concern that further testing would confirm the initial results, as the decision was tactical, informed, based upon adequate investigation, and made in consultation with the retained expert. Schaffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 484 (Tenn. Aug. 18, 2017).

Inmate's claim that trial counsel was ineffective for failing to investigate and challenge the search warrant pursuant to Tenn. R. Crim. P. 41, lacked merit, because the inmate offered no proof that the State would have been impeded from seeking another warrant and obtaining another DNA sample in compliance with Rule 41(g). Schaffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 484 (Tenn. Aug. 18, 2017).

Because no error existed in the indictment, counsel was not ineffective by not challenging the indictment. Schaffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 484 (Tenn. Aug. 18, 2017).

Record supported the post-conviction court's finding that subsequent counsel's failure to question trial counsel about the note at the motion for a new trial hearing was deficient performance, but as petitioner failed to establish prejudice without any testimony from trial counsel regarding his failure to object to the note's admission, and the court would not speculate, petitioner was not entitled to relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Post-conviction court properly found that subsequent counsel provided deficient performance by failing to question trial counsel about the concession at the motion for a new trial hearing and that petitioner failed to establish prejudice; trial counsel's testimony regarding his concession was critical to determining whether subsequent counsel's deficient performance resulted in prejudice, but petitioner did not present counsel at the hearing and the court would not speculate what trial counsel's testimony might have been, and petitioner was not entitled to relief. Wagner v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. Mar. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 423 (Tenn. July 20, 2017).

Petitioner was not prejudiced by trial counsel's failure to adequately investigate the victim's prior history of violence because the fact of the victim's 1999 assault conviction would not have been admissible to corroborate petitioner's claim, and given the strength of the evidence at trial, petitioner could not prove that there was a reasonable probability that the outcome of the trial would have been different. Rittenberry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 251 (Tenn. Crim. App. Apr. 5, 2017).

Petitioner did not receive ineffective assistance of counsel during his guilty plea hearing on the ground that his counsel had a conflict of interest because there was no actual conflict of interest, as counsel testified that he withdrew from petitioner's case because he believed he would not be able to effectively cross-examine a potential witness who had been a past client; counsel later undertook representation of petitioner's case for purposes of entering a guilty plea and the potential witness played no part in the entry of petitioner's guilty plea and thus the potential conflict never arose. Kizer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 245 (Tenn. Crim. App. Apr. 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 513 (Tenn. Aug. 16, 2017).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; DNA evidence was not an issue in the case, and thus petitioner did not show deficient performance or prejudice based on counsel's decision not to share DNA results with petitioner prior to entering his guilty plea. Armstrong v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 493 (Tenn. Aug. 18, 2017).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel, as petitioner did knowingly and voluntarily enter his guilty plea based on the advice of counsel and that the plea was in his best interest; petitioner conferred with trial counsel numerous times about the potential DNA results and the alternatives to the guilty plea, and he could have received a significantly greater penalty had he proceeded to trial. Armstrong v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 6, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 493 (Tenn. Aug. 18, 2017).

Petitioner was not entitled to post-conviction relief because he failed to show ineffective assistance of counsel; no evidence showed that counsel knew or should have known of petitioner's incriminating statements in recordings before the State provided transcripts the week before the trial, counsel was not questioned about his reasons for not requesting recordings of petitioner's jail telephone communications and the court would not speculate, and nothing showed that the State intended to use the recordings at trial until after petitioner rejected the plea offer. Hughes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 252 (Tenn. Crim. App. Apr. 6, 2017).

Lead trial counsel was not ineffective in his representation leading up to the inmate's entry of a guilty plea, as counsel testified that the inmate wanted to plead guilty because he did not want to put his family and the victims' families through the stress of a trial, counsel advised the inmate to plead guilty because, if he went to trial, he most likely would have been convicted of first degree murder and sentenced to death, and counsel negotiated the plea to serve the wished of his client. Haydel v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 10, 2017).

Petitioner's trial counsel was not ineffective for advising him to plead guilty to Class D felony theft of property and unlawful possession of a firearm by a convicted felon, and therefore he was properly denied post-conviction relief, because, as counsel explained, it was either go to trial on the theft charge and run the risk of petitioner being convicted and sentenced as a career offender to incarceration or accept the plea offer on both offenses and receive concurrent sentences to be served on probation. Lawson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App. Apr. 13, 2017).

Counsel was not ineffective for failing to argue pending motions because counsel testified that he argued certain motions, the trial court granted one and overruled another, and it deferred ruling on other motions because they were not related to the theft case that was set for trial. Lawson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App. Apr. 13, 2017).

Petitioner failed to establish that the marital privilege applied to the statement in question, and even assuming his wife's statements were communications between the parties, nothing showed that the statement originated in confidence, nor were the other factors for application of the privilege shown; counsel was not ineffective for failing to further challenge the testimony on this basis after his objection was overruled, and petitioner was not entitled to post-conviction relief. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 500 (Tenn. Aug. 16, 2017).

Without a legal basis for a motion to suppress, counsel was not ineffective for not filing such a motion, nor was counsel ineffective for excluding this issue on appeal; petitioner was not entitled to relief. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 500 (Tenn. Aug. 16, 2017).

Petitioner failed to prove that certain testimony would have been excluded at trial, plus the testimony was corroborated; thus, petitioner had not shown that counsel or appellate counsel were ineffective and petitioner was not entitled to relief. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 500 (Tenn. Aug. 16, 2017).

Counsel was not ineffective for failing to object to the composition of the jury because petitioner did not allege any sort of systematic exclusion and he did not establish that there was a disparity in the number of African Americans in the panel compared to the number of African Americans in the community. Bowman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. Apr. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 530 (Tenn. Aug. 16, 2017).

Defendant was not entitled to post-conviction relief because defendant failed to prove, by clear and convincing evidence, that trial counsel was deficient in preparing for trial, interviewing a witness, failing to file a motion to suppress, or causing defendant to reject a plea offer. Northener v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. Apr. 25, 2017).

Petitioner's second trial counsel was not ineffective for failing to call a lieutenant to testify as to petitioner's claim of self-defense because another witness established through her testimony established petitioner's self-defense theory, namely that she felt threatened by the victim and that the victim had threatened petitioner. Clark v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 349 (Tenn. Crim. App. May 5, 2017).

Petitioner's second trial counsel was not ineffective for failing to properly cross-examine a witness because the testimony would have likely been excluded as inadmissible hearsay, as petitioner wanted the witness to testify that someone from the District Attorney's Office informed her that the victim was possibly shot by someone other than petitioner. Clark v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 349 (Tenn. Crim. App. May 5, 2017).

There was no factual basis to support petitioner's claims that he did not know that trial counsel would not put on proof at trial and that this supposed lack of knowledge caused him to reject a favorable plea offer and forego his right to testify; petitioner failed to establish deficient performance or any resulting prejudice, and he was not entitled to relief on this claim. Sellers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 492 (Tenn. Aug. 18, 2017).

Petitioner did not establish that the victim's in-court identification was impermissibly suggestive, as petitioner wanted to wear his jail clothes, and in any event, the more damning evidence was his DNA found on the victim's vaginal swabs, and he offered no proof to suggest that the DNA identification was faulty; petitioner failed to establish deficient performance or any resulting prejudice and he was not entitled to relief on this claim. Sellers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 492 (Tenn. Aug. 18, 2017).

Petitioner failed to show that his trial counsel was ineffective for not allowing him to testify because counsel testified that she advised him not to testify due to his extensive criminal history, much of which would have been admissible if he had testified, and petitioner acknowledged that his right to testify was explained to him during the Momon hearing and that he declined to testify. Richardson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 9, 2017).

Petitioner failed to show that his trial counsel was ineffective for changing trial strategy because counsel denied changing the strategy, petitioner failed to identify the change, and assuming that the change was that counsel was not going to mention petitioner's drug addiction but then did at trial, counsel's decision to offer the addiction as an explanation for his possession of drugs was an informed decision based on the evidence. Richardson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 9, 2017).

Petitioner failed to show that his trial counsel was ineffective for failing to exercise a peremptory challenge against a juror, petitioner's former employer's wife, because after speaking to the juror the trial court determined, with the agreement of the parties, that she could serve as a fair and unbiased juror, and counsel asked petitioner if he wanted to recuse her and petitioner stated that he did not. Richardson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 9, 2017).

Defendant failed to show ineffective assistance of counsel in a trial for vandalism and burglary of a building because defendant failed to show that counsel failed to prepare a trial strategy, failed to investigate to properly determine the owner of the building where the offenses occurred and the financial condition of the owner, failed to cross-examine witnesses properly, and failed to request jury instructions on duress or necessity. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

Trial counsel was not ineffective for failing to play a video from an officer's dash camera in its entirety, because the proof at trial was overwhelming against the inmate, and the video would only have served to reiterate the events in front of the jury and would have hurt the inmate. Hicks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 380 (Tenn. Crim. App. May 15, 2017).

Defendant did not show that trial counsel should have requested a psychiatric evaluation to determine defendant's mental capacity at the time of a murder and at the time of trial because the record was void of evidence as to what an expert would have said and how it would have aided in the defense. Moreover, trial counsel testified that when interacting with defendant, counsel was able to have a coherent conversation as defendant logically responded to counsel's questions and appeared to understand everything trial counsel told defendant. Spicer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 591 (Tenn. Sept. 22, 2017), cert. denied, Spicer v. Tennessee, 200 L. Ed. 2d 274, 138 S. Ct. 1007, — U.S. —, 2018 U.S. LEXIS 1339 (U.S. Feb. 20, 2018).

Appellate court deferred as a matter of trial strategy to trial counsel's decision not call a witness to present an alternative theory as to who was responsible for the victim's death because there was no evidence to support the theory. Spicer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 591 (Tenn. Sept. 22, 2017), cert. denied, Spicer v. Tennessee, 200 L. Ed. 2d 274, 138 S. Ct. 1007, — U.S. —, 2018 U.S. LEXIS 1339 (U.S. Feb. 20, 2018).

Defendant did not show that defendant was prejudiced by trial counsel's failure to speak with and subpoena certain potential witnesses, as the witnesses did not testify at defendant's hearing for post-conviction relief, nor did defendant show that defendant was prejudiced by counsel's failure to retain and call a medical causation expert to testify at trial. Spicer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 591 (Tenn. Sept. 22, 2017), cert. denied, Spicer v. Tennessee, 200 L. Ed. 2d 274, 138 S. Ct. 1007, — U.S. —, 2018 U.S. LEXIS 1339 (U.S. Feb. 20, 2018).

Trial counsel's performance was not deficient for failing to argue that a letter allegedly authored by defendant was not properly authenticated. While it was unclear from the record who wrote the letter and how it ended up in the victim's possession, it was unlikely that the jury's verdict would have been different if the letter had been excluded from evidence. Stovall v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. May 16, 2017).

Trial counsel's performance was not deficient for failing to object to hearsay introduced by the State of Tennessee because counsel did not want to alienate the jury by constantly objecting to evidence that did not matter, a reasonable trial strategy which the appellate court did not want to second-guess. Additionally, it was clear from the record that the evidence presented at trial weighed strongly against defendant. Stovall v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. May 16, 2017).

Defendant failed to establish that defendant was prejudiced by trial counsel's failure to proffer evidence of defendant's actual height to the jury because the State of Tennessee's strongest evidence of defendant's identity was the identification of defendant by a witness. It was unlikely that actual evidence that defendant was a few inches taller than the description of the perpetrator by a different witness would have altered the jury's verdict. Winn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. May 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 602 (Tenn. Sept. 22, 2017).

Defendant failed to establish prejudice by trial counsel's failure to investigate an alleged deal between an inmate and the State of Tennessee in exchange for the testimony of the inmate at defendant's trial. Defendant offered no evidence to support the allegation that the State had a deal with the inmate besides defendant's own assertion of the claim. Winn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. May 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 602 (Tenn. Sept. 22, 2017).

Although defendant asserted ineffective assistance due to trial counsel's failure to obtain an enhanced version of a surveillance video of the murder of a store clerk during a robbery and present it to the jury, defendant failed to show resulting prejudice in that defendant did not establish how showing an enhanced version of the video would have altered the jury's verdict as the video, which showed a perpetrator wearing dark clothing and a mask, was not a salient part of the evidence that defendant was the perpetrator of the felony murder. Winn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. May 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 602 (Tenn. Sept. 22, 2017).

Defendant failed to establish prejudice by trial counsel's failure to submit defendant's clothing for testing for the victim's blood weeks after the murder of the victim during a store robbery. Furthermore, because the State of Tennessee's strongest evidence against defendant was the identification of defendant by a witness, analysis of defendant's clothing would not have contradicted the testimony of the witness. Winn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. May 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 602 (Tenn. Sept. 22, 2017).

Inmate failed to establish both deficient performance and prejudice based on his claim of ineffective assistance of counsel, as the record supported the post-conviction court's finding that trial counsel never promised the inmate that he would receive a particular sentence from the trial court if he pled guilty but that the inmate understood he was pleading “open.” Roseman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 424 (Tenn. Crim. App. May 23, 2017).

Petitioner failed to show that he was prejudiced by his trial counsel's failure to advise him to accept the State's plea offer because he failed to show that the State actually made him an offer to reject and he introduced no proof that the second co-defendant or the victim would have agreed to the plea agreements, upon which the State's acceptance of any plea was contingent. Dunkley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. July 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 803 (Tenn. Nov. 16, 2017).

Petitioner failed to show that he was prejudiced by counsel's failure to call a witness to testify because the witness did not testify at the post-conviction hearing. Dunkley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. July 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 803 (Tenn. Nov. 16, 2017).

Petitioner failed to show that he was prejudiced by counsel's failure to move to suppress evidence based on the assertion that the judicial subpoenas used to obtain his cell phone records did not comply with T.C.A. § 40-17-123 because he could not show that the outcome of the proceeding would have been different, as the evidence, which was largely already confirmed through the victim's service provider, was of marginal value at trial. Dunkley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. July 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 803 (Tenn. Nov. 16, 2017).

Petitioner failed to show that counsel was deficient for failing to suppress the text messages based on the State's loss or destruction of evidence because the record showed that counsel raised the loss of the telephone as an issue and obtained a telephone for inspection prior to trial. Dunkley v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. July 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 803 (Tenn. Nov. 16, 2017).

Petitioner failed to show that his trial counsel was ineffective for failing to convey a plea offer because counsel testified that he had discussions with petitioner about the State's initial offer and that he encouraged petitioner to accept it, and petitioner's own testimony confirmed that he was aware of the plea deal. Dowell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. July 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 792 (Tenn. Nov. 16, 2017).

Petitioner failed to show that his trial counsel was ineffective for failing to effectively communicate with him because petitioner testified that counsel met with him before both trials, counsel also met with him during numerous courtroom appearances, counsel reviewed discovery with him, they discussed defense strategies, and he was able to express his concerns to counsel. Dowell v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. July 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 792 (Tenn. Nov. 16, 2017).

If trial counsel had been successful in convincing a jury that the victims did not suffer serious bodily injury, the inmate was at risk of receiving a longer sentence and thus, even if trial counsel was ineffective in failing to investigate the victims' injuries, the inmate was not prejudiced. Jelks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 593 (Tenn. Crim. App. July 6, 2017).

Even if trial counsel was in error in advising the inmate that he could be classified as a career offender, that error did not prejudice the inmate, as before the State made any plea offer, the inmate instructed trial counsel to offer a plea to attempted aggravated robbery in exchange for a 10-year sentence as a persistent offender. Jelks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 593 (Tenn. Crim. App. July 6, 2017).

Defendant failed to establish by clear and convincing evidence that plea counsel was deficient for failing to adequately explain the concept of criminal responsibility for the conduct of another, failed to show that counsel was deficient for advising defendant to accept the plea deal, failed to prove by clear and convincing evidence that counsel forced defendant to plead guilty, and failed to show that defendant was prejudiced by counsel's representations to defendant about consecutive sentencing. Green v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. July 7, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 785 (Tenn. Nov. 16, 2017).

Although trial counsel's lacked of knowledge about the ability to seek state funds for an expert and failure to question his client about his refusal to hire an expert was deficient performance, the inmate was not entitled to relief, as he failed to establish prejudice given that he failed to show that a request for state funds could have been granted by the trial court. Sprunger v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 603 (Tenn. Crim. App. July 10, 2017).

Because codefendant testified and was subject to cross-examination by petitioner's counsel, the admission of his statement implicating petitioner did not violate case law and severance was not required; petitioner failed to show deficiency or prejudice and was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Even though the completed offense of voluntary manslaughter was defined as a dangerous felony under T.C.A. § 39-17-1324(i)(1)(C), the trial court specified attempt to commit voluntary manslaughter, and without knowing that the completed offense of voluntary manslaughter in count one was a statutorily enumerated dangerous felony, it was reasonable that the jury considered only the attempted voluntary manslaughter in count two as the underlying felony; counsel was not deficient and petitioner was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Petitioner failed to establish that counsel's performance in arguing for severance was deficient; there was no transcript provided of any hearing on the severance motion, the court had previously held that the severance issue was without merit given the proof the State could have presented in a separate trial against petitioner, there was no reason to deviate from the court's prior evaluation, and petitioner was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel made a sound tactical decision to confront an inculpatory statement head-on, and later abandon the self-defense theory after none of the witnesses testified that they saw the gun in petitioner's hand at the scene; petitioner had not met her burden of overcoming the strong presumption that counsel provided adequate assistance, nor could petitioner establish prejudice, and thus she was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel was not ineffective for failing to file a written motion for severance because none was required, and counsel was not ineffective for failing to raise the severance issue during the trial because such a motion had to be made pre-trial unless it was based on a ground not previously known, and petitioner did not claim that counsel was unaware of the statement in question; thus, petitioner was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel made a valid strategic decision not to object to the State's closing arguments and thus counsel did not render constitutionally deficient performance, plus none of the statements were so inflammatory as to have constituted reversible error; thus, petitioner did not suffer any prejudice and thus was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Counsel filed the motion for new trial one day late, but despite the late filing, the motion was heard by the trial court; although petitioner alleged ineffective assistance, she was not prejudiced because the appellate court reviewed her issues beyond sufficiency of the evidence, and thus she was not barred from pursuing issues on appeal, for purposes of T.C.A. § 40-30-113, and she was not entitled to post-conviction relief, for purposes of T.C.A. §§ 40-30-103, 40-30-110(f). Summers v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. July 14, 2017).

Although petitioner argued that trial counsel failed to include all grounds as to why a new trial should be granted, petitioner did not specify which issues should have been included and appeared to solely rely on trial counsel's testimony at the post-conviction hearing that counsel believed the motion was insufficient. Without proof to the contrary, deference was given to trial counsel's tactical decisions. Petty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 782 (Tenn. Nov. 16, 2017).

Trial counsel was not ineffective for failing to request a mistrial after learning that a sequestered juror had spoken to a waitress during lunch, as the juror's conversation was only about an ink pen and was not improper. Petty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 782 (Tenn. Nov. 16, 2017).

Without any showing otherwise by petitioner, deference was given to trial counsel's decision not to file a motion to suppress. Accordingly, petitioner failed to establish by clear and convincing evidence that counsel was deficient. Petty v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 782 (Tenn. Nov. 16, 2017).

Petitioner failed to show that his trial counsel was ineffective because in light of the overwhelming evidence presented by the State, counsel presented an effective strategy of attempting to obtain the least severe sentence possible for petitioner, and she successfully negotiated with the State to drop their pursuit of the death penalty. Petitioner also failed to show that he was prejudiced, as he claimed that there were potential witnesses who would have testified on his behalf but he failed to present the witnesses at his post-conviction hearing. Mellon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 640 (Tenn. Crim. App. July 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 687 (Tenn. Oct. 3, 2017).

Petitioner failed to show that his trial counsel was ineffective because counsel testified that he met with petitioner to discuss his case and review the discovery file, counsel's failure to pursue a motion to suppress the blood evidence was not deficient because he obtained a search warrant to ensure that petitioner's blood matched the blood sample and retested the remaining blood drawn from petitioner, and counsel negotiated a plea agreement in which petitioner pleaded guilty to a lesser-included offense and received a substantially shorter sentence. Hoover v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 642 (Tenn. Crim. App. July 21, 2017).

Petitioner failed to show that trial counsel was ineffective for failing to challenge the trial court's application of certain enhancement factors because the court had previously held that when sentencing petitioner the trial court imposed appropriate sentences. Hayes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. July 21, 2017).

Petitioner failed to show that trial counsel was ineffective for failing to object to the trial court's use of his Louisiana convictions to classify him as a Range II offender because at least one of his prior burglary convictions would be classified as a Class D felony and the other would be classified as either a Class D or E felony. Petitioner failed to prove that his status as a minor would have prohibited the trial court using his Louisiana convictions during sentencing. Hayes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. July 21, 2017).

Petitioner failed to show that his appellate counsel was ineffective for failing to raise sufficiency of the evidence as an issue on appeal because counsel testified that after reading the trial transcript he determined that the evidence was sufficient to support petitioner's convictions. Hayes v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. July 21, 2017).

Petitioner offered no factual basis for his claim that medical records would have been relevant to his trial or what a medical examination would have revealed, and thus he failed to establish prejudice for ineffective assistance purposes. James v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 652 (Tenn. Crim. App. July 26, 2017).

Post-conviction court determined that trial counsel chose to pursue a theory of self-defense prior to trial and that decision was reasonable and did not fall below the minimal required competency' petitioner failed to establish that counsel's decision was deficient. James v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 652 (Tenn. Crim. App. July 26, 2017).

Witness's testimony had no impact on the reliability of petitioner's conviction and counsel's failure to call the witness did not prejudice petitioner, and thus ineffective assistance was not shown. James v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 652 (Tenn. Crim. App. July 26, 2017).

Had counsel obtained his requested jury instruction, petitioner's chance of acquittal would have been higher, and without showing how counsel's requested instruction prejudiced petitioner and that, but for this error, the outcome of the trial would have been different, he was not entitled to post-conviction relief on the basis of ineffective assistance. James v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 652 (Tenn. Crim. App. July 26, 2017).

Evidence did not preponderate against the trial court's finding that the inmate received effective assistance of counsel, as trial counsel testified that he did not have any problems with the indictment, and, even if trial counsel had convinced the trial court to dismiss the subject counts to the indictment pretrial, the State would have resubmitted the aggravated child neglect charges to the grand jury. Hester v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Aug. 3, 2017).

Trial counsel was not ineffective for failing to object to the jury selection procedures because counsel was a veteran lawyer that practiced exclusively within the district at the time of petitioner's trial and counsel agreed that Tenn. R. Crim. P. 24 was not complied with based on the subsequently-issued decision in Frausto but that decision had not been issued at the time of petitioner's trial. Defendant was not prejudiced because counsel was experienced with the jury selection process, was not confused by it, was advised that he could backstrike any juror in the waiting room, and a party did exercise a backstrike. Phillips v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 713 (Tenn. Crim. App. Aug. 14, 2017).

Petitioner failed to provide any evidence showing that counsel talked him out of taking a plea by exhibiting confidence that his case could be won at trial. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Aug. 24, 2017).

Defense counsel was not ineffective for failing to obtain a satisfactory plea agreement because counsel and the State's attorney testified that there was no plea offer made by the State, counsel testified that he conveyed to the State petitioner's proposed six-year deal that was rejected, and the State's attorney testified that he was unlikely to accept an offer from petitioner because of the strong case developed against him as the leader in the crime. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Aug. 24, 2017).

Despite defendant's waiver of a claim of ineffective assistance of counsel, defendant failed to prove any of defendant's claims by clear and convincing evidence because, with regard to witness preparation and strategy, defendant failed to present the testimony of any proposed witnesses to show how counsel's failure to call them at trial inured to defendant's prejudice and the strategic decisions of counsel were challengeable as counsel testified the decisions were made after adequate preparation and defendant offered no proof otherwise. Brandon v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. Aug. 25, 2017).

Lead and co-counsel was not deficient in their decision to pursue a narrow legal strategy nor in their decision not to investigate a witness, whom they wanted to the jury to believe and thus, did not want to impeach. State v. Patel, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Aug. 25, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 12 (Tenn. Jan. 17, 2018).

Defendant was not entitled to post-conviction relief following defendant's plea of guilty because defendant failed to show ineffective assistance of counsel by clear and convincing evidence in that defendant told the trial court that defendant understood defendant's classification as a Range III offender and was satisfied with trial counsel's representation. Moreover, defendant confirmed at the post-conviction hearing that defendant reviewed discovery with trial counsel and met with trial counsel numerous times before the guilty plea hearing. Hurtch v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 805 (Tenn. Crim. App. Sept. 5, 2017).

Defendant was not entitled to post-conviction relief because defendant failed to offer any evidence at a post-conviction hearing that the challenged actions of defendant's counsel; failure to call a witness to testify, failure to object to the testimony of a witness, failure to adequately prepare a witness to testify, failure to adequately question witnesses, failure to object to the admission of evidence, and failure to effectively cross examine witnesses were anything but tactical decisions made after adequate preparation for trial. Saitta v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 825 (Tenn. Crim. App. Sept. 8, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 51 (Tenn. Jan. 18, 2018).

Petitioner was properly denied post-conviction relief because trial counsel's decision against using a witness's letter to impeach her testimony was a part of counsel's reasonable trial strategy, as counsel testified that the prosecutor threatened to introduce more evidence against petitioner if the letter was admitted, and counsel was able to elicit much of the information in the letter that was helpful to petitioner from the witness's cross-examination. Kwaku Aryel Okraku v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 836 (Tenn. Crim. App. Sept. 12, 2017).

Defendant, who alleged ineffective assistance of counsel, was not entitled to post-conviction relief because defendant did not establish that there was a reasonable probability that, but for counsel's unprofessional errors in failing to investigate a police detective, the result of the proceeding would have been different. Tate v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 837 (Tenn. Crim. App. Sept. 13, 2017).

Petitioner was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f), given that deficient performance was not shown; counsel's conclusion that State v. Watkins regarding double jeopardy would apply in this case was reasonable, there was no indication that counsel was inadequately prepared, and his decision to forego an argument for the application of other case law was a reasonable tactical decision, plus no prejudice was found in any event. Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 122 (Tenn. Feb. 23, 2018).

Defendant was not entitled to post-conviction relief because defendant failed to present clear and convincing evidence that defense counsel provided ineffective assistance, with regard to counsel filing a motion for a change of venue, instead of a motion for recusal, to address defendant's concern about being treated fairly by the clerk's office when the alleged victim's father was an employee of the trial court clerk's office, as counsel's decision was a strategic one in that counsel believed that a motion for recusal would not have succeeded. Poston v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Sept. 22, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 53 (Tenn. Jan. 18, 2018).

Petitioner failed to prove any prejudice based on trial counsel's alleged failure to explain the difference between actual and constructive possession. Simons v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Sept. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 768 (Tenn. Nov. 17, 2017).

Petitioner failed to prove that trial counsel was deficient in failing to file a second motion to reduce his bond. Even if trial counsel had filed a motion to reduce bond, it was unlikely, based on petitioner's previous conduct, that the motion would have been successful. Simons v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Sept. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 768 (Tenn. Nov. 17, 2017).

Petitioner failed to prove that trial counsel's performance in not filing a motion to suppress was deficient. Petitioner did not present any testimony or evidence to support his allegation that he would have been successful in suppressing the evidence obtained during a consensual search of a co-defendant's residence. Simons v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Sept. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 768 (Tenn. Nov. 17, 2017).

Inmate did not show counsel's failure to retain a mental health expert was ineffective assistance because the inmate did not show (1) why the expert was needed, (2) what the expert would have said, or (3) how the expert would have aided the defense. Schaeffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 898 (Tenn. Crim. App. Oct. 6, 2017).

Inmate did not show counsel's failure to call certain witnesses was ineffective assistance because the inmate did not call these witnesses to testify at the inmate's post-conviction hearing, so it was unknown if the witnesses would have assisted the defense. Schaeffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 898 (Tenn. Crim. App. Oct. 6, 2017).

Inmate did not show counsel's failure to request a change of venue was ineffective because (1) counsel made a tactical decision to wait until closer to trial to request a change, and (2) the inmate did not show prejudice by showing the inmate would not have pled guilty but for counsel's failure to request a change of venue. Schaeffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 898 (Tenn. Crim. App. Oct. 6, 2017).

Petitioner failed to prove that his trial counsel's failure to file a pre-trial motion regarding video evidence of the crime under Ferguson was ineffective assistance of counsel because nothing indicated that counsel's strategy was not sound, as upon learning that the video footage was unavailable for trial, counsel ensured that the police officers who viewed the video were available to testify, and then presented inconsistencies between the officers' descriptions of the shooter's appearance on the video and the victim's description of petitioner's appearance at the time of the shooting. Berry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 907 (Tenn. Crim. App. Oct. 10, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 110 (Tenn. Feb. 15, 2018).

With regard to counsel's investigation of a mental health defense, counsel used his experience to determine that petitioner did not meet the criteria for an insanity defense, and the only way for petitioner to show prejudice was to present testimony that would be the basis for that defense, but petitioner made no such showing; thus, he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f) on the basis of ineffective assistance of counsel. McWilliams v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 942 (Tenn. Crim. App. Nov. 2, 2017).

Evidence did not preponderate against the finding that counsel knew all there was to know about the case, and even if counsel did not formally file for discovery, he was not deficient in that regard; moreover, prejudice was not shown and petitioner was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f) on the basis of ineffective assistance of counsel. McWilliams v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 942 (Tenn. Crim. App. Nov. 2, 2017).

Petitioner failed to show any development in his case that counsel failed to communicate to him, such that counsel was not deficient in his communication; moreover, petitioner failed to show that he was prejudiced, counsel's lack of communication did not affect petitioner's guilty plea, and he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f) on the basis of ineffective assistance of counsel. McWilliams v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 942 (Tenn. Crim. App. Nov. 2, 2017).

Counsel was not ineffective for failing to file a motion for new trial because defendant told counsel that defendant did not wish to pursue an appeal. However, after the deadline for a motion for new trial, defendant changed defendant's mind and informed counsel that defendant wanted to pursue an appeal. Dunn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 129 (Tenn. Feb. 14, 2018).

Counsel was not ineffective for failing to file a motion regarding the lack of a video recording from an officer's in-car video camera because the only testimony was that of the officer, who said that no recording was made of the interaction with defendant as the storage of the video recording equipment was full. Dunn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 129 (Tenn. Feb. 14, 2018).

Although defendant's counsel erred by failing to file a motion to suppress evidence found in the vehicle which defendant was driving, defendant could not prove that defendant was prejudiced by counsel's deficient performance because defendant did not have an expectation of privacy in the vehicle as defendant disclaimed ownership of the items found in the vehicle, defendant did not contest the search of the vehicle, and a police officer had probable cause to search the vehicle. Dunn v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 975 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 129 (Tenn. Feb. 14, 2018).

Petitioner failed to show that the State ever extended a plea offer, and counsel could not be found ineffective for failing to communicate an offer that never existed; the State was under no obligation to enter into plea negotiations, and when the State rejected petitioner's original offer to plead guilty, counsel rightfully prepared for trial, such that petitioner failed to show that counsel's actions were ineffective and he was not entitled to post-conviction relief under T.C.A. §§ 40-30-103, 40-30-110(f). Cunningham v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 983 (Tenn. Crim. App. Nov. 28, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 169 (Tenn. Mar. 14, 2018).

Successor counsel did not perform deficiently when he raised the ineffective assistance of trial counsel claims at the motion for a new trial because petitioner made no concrete allegations regarding how raising the issues on direct review deprived him of a meaningful opportunity to present his claims. Newton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 985 (Tenn. Crim. App. Nov. 29, 2017).

Appellate counsel was not ineffective in failing to raise several issues on appeal because petitioner's conviction was supported by physical evidence and the victim's testimony, petitioner presented no evidence that the trial court's decision denying him alternative sentencing constituted an abuse of discretion, and given that petition had insisted on a mistaken identity defense, trial counsel could not credibly change that strategy for closing argument. Newton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 985 (Tenn. Crim. App. Nov. 29, 2017).

Successor counsel was not deficient for failing to uncover and present a witness' testimony because counsel made a reasonable strategic decision not to present testimony that lacked credibility, was inconsistent with petitioner's claim of mistaken identity, and did not contradict the State's timeline of events. Newton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 985 (Tenn. Crim. App. Nov. 29, 2017).

Successor counsel was not ineffective failing to call petitioner to testify at the hearing on the motion for a new trial because counsel testified that petitioner chose to testify and the post-conviction court determined that petitioner had made a knowing and voluntary choice not to testify both at the trial and at the hearing on the motion for a new trial. Newton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 985 (Tenn. Crim. App. Nov. 29, 2017).

Defendant failed to show ineffective assistance of counsel because counsel did not coerce defendant into pleading guilty in that, after hearing the court's explanation concerning potential sentences, a summary of the evidence against defendant, and the court's explanation of the difference between pleading guilty and a jury trial, defendant informed the trial court that defendant wanted to accept the plea offer. After speaking with trial counsel and defendant's parent, defendant again informed the court of defendant's desire to plead guilty. Curry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Dec. 5, 2017).

Defendant failed to show ineffective assistance of counsel because his counsel had a mental health evaluation conducted on defendant at the outset of counsel's representation which revealed that defendant understood the charges against him and was competent to aid counsel in his defense. Furthermore, because defendant failed to call an educational specialist trained in mental defects and retardation during the post-conviction hearing, he could not meet his burden of proof Curry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Dec. 5, 2017).

Because defendant failed to offer any proof refuting or contradicting the State of Tennessee's proof and simply argued that defendant's counsel should have presented proof of defendant's innocence, defendant could not meet the burden of proof to show that counsel was ineffective in failing to offer evidence of defendant's innocence. Furthermore, the evidence against defendant consisted of the testimony of a cooperative victim, defendant's own confession, and DNA analysis of the victim's unborn child establishing defendant as the father. Curry v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. Dec. 5, 2017).

Inmate was not entitled to post-conviction relief based on trial counsel's alleged ineffective assistance because (1) witness testimony not presented was cumulative or not exculpatory, (2) the inmate showed no crime scene contamination, (3) the inmate's informed choice not to testify barred claiming counsel did not prepare the inmate to testify, and (4) the inmate's failure to show deficient performance barred showing prejudice through a juror's testimony. Kiser v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Dec. 21, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 223 (Tenn. Apr. 19, 2018).

Petitioner was properly denied post-conviction relief on his claim that his trial counsel was ineffective for failing to sufficiently explain the plea agreement and failing to correct the plea agreement form because the record showed that, while counsel did not correct a clerical error in the plea agreement form, both counsel and the trial court discussed the aspects and ramifications of the plea agreement with petitioner, and at the plea submission hearing petitioner testified that he was satisfied with counsel's representation. Weaver v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1058 (Tenn. Ct. App. Nov. 7, 2017).

Trial court did not err by denying petitioner postconviction relief because he failed to show that the ineffective assistance of counsel caused him to reject the State's more favorable 10-year offer and agree to an open guilty plea, as petitioner provided different explanations of what had happened, and counsel testified she advised petitioner that 10 years was the minimum sentence petitioner could receive and recommended that he accept it. Counsel testified that petitioner refused to accept the plea because he believed that his criminal history was not relevant and he wanted to serve less than a year in confinement, and counsel then argued for a sentence of full probation with petitioner's approval. Bennett v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 83 (Tenn. Crim. App. Feb. 6, 2018).

Trial counsel's investigation into potential witnesses was inadequate and deficient, but petitioner did not establish that he was prejudiced, as he failed to offer the testimony of any of the potential witnesses whom he contended that counsel should have investigated, and petitioner offered no proof that he sought out any of the witnesses but was unable to locate them. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Trial counsel could not be held constitutionally deficient for failing to raise issues relating to a detective in a petition for writ of error coram nobis under T.C.A. § 40-26-105(b), and in any event, because petitioner failed to offer proof of the allegations relating to the detective, petitioner could not establish prejudice resulting from trial counsel's failure to pursue coram nobis relief. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Evidence of a separate fight was relevant to establish motive for the underlying offense, and thus petitioner did not establish deficient performance or prejudice in regards to trial counsel's failure to object to evidence regarding the fight. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Trial counsel's advice that petitioner testify was a matter of trial strategy, which was not second-guessed on appeal, and because under T.C.A. § 40-30-110 petitioner failed to testify that he did not understand his rights and the consequences of his decision to testify, he could not demonstrate that the evidence preponderated against the post-conviction court's determinations. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Trial counsel knew petitioner's drug dealing would come to light at trial and made the strategic decision not to hide it, and counsel's failure to object to evidence of petitioner's drug dealing was a matter of trial strategy, which was not second-guessed on review. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Petitioner claimed he was denied effective assistance of counsel based on trial counsel's failure to question co-defendant about her initial statement to police, but because neither co-defendant nor the officer to whom she allegedly gave the statement testified at the evidentiary hearing, petitioner could not established prejudice. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Petitioner failed to show ineffective assistance based on counsel's failure to raise issues relating to information contained in the State's motion to nolle in co-defendant's case; counsel attempted to present the contents of the motion, but the contents did not constitute post-judgment facts capable of consideration under T.R.A.P. 14, and as the assertions contained in the motion to nolle were not known by the trial court during petitioner's case, the motion could not be added to the appellate record under T.R.A.P. 24. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Petitioner failed to establish that he was prejudiced based on trial counsel's failure to investigate two witnesses, neither of whom testified at the hearing; in any event, counsel cross-examined both of them, showing that one witness gave inconsistent stories to police and another witness agreed it was only after the police threatened her that she said petitioner admitted to the murders, and thus no prejudice was shown. Johnson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 87 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 344 (Tenn. June 6, 2018).

Petitioner was properly denied postconviction relief on his claim that counsel was ineffective for failing to conduct a proper investigation of the case because counsel's decision not to raise a witness' prior inconsistent statement was a strategic decision, as counsel testified that she knew that a witness had told a detective that he had bought marijuana from petitioner in the past and she did not think that delving into petitioner's history of selling drugs would have helped his defense. Keller v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. Feb. 8, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 282 (Tenn. May 18, 2018).

Petitioner was properly denied postconviction relief on his claim of ineffective assistance of counsel because he failed to show that counsel's decision not to call a witness at trial amounted to deficient performance, as based on the information in the police report and relayed to counsel by petitioner, counsel determined that the witness' testimony would not have been useful to petitioner's case. Petitioner also failed to show that the result of the trial would have been different if counsel had called the witness to testify because while the witness owned the house and invited petitioner over that evening, he did not give him permission to enter the back room of the house, which could only be accessed via a separate entrance on the outside of the house. Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 15, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 265 (Tenn. Apr. 23, 2018).

Petitioner failed to show that his counsel was ineffective in his preparation of the certified questions of law because on direct appeal the court held that the certified question was not dispositive of the case, as the law enforcement officers had a valid search warrant based upon anonymous tips and the smell of marijuana, and therefore whether petitioner was unlawfully seized was not dispositive of the case. In addition, the court held that petitioner received a meaningful appeal, and he could not prove that, but for counsel's error in drafting the certified questions of law, he would not have entered a guilty plea and gone to trial. Snider v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 21, 2018).

Defendant failed to prove ineffective assistance of counsel by clear and convincing evidence because there was no evidence that plea counsel in one case conducted an inadequate investigation and there was no prejudice because the post-conviction court granted defendant a delayed appeal of the sentence, which the appellate court ruled upon. Because alleged deficiencies by trial counsel in another case occurred after defendant's pleas in one case, defendant failed to show that but for counsel's actions, defendant would not have pleaded guilty. Phifer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 440 (Tenn. July 19, 2018).

Petitioner failed to show that he was prejudiced by counsel's failure to respond the State's motion to use petitioner's prior convictions as impeachment evidence because he had 32 prior convictions, and he failed to show that the trial court would have precluded the State from using them as impeachment. Aho v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 347 (Tenn. June 6, 2018).

Petitioner failed to show that his counsel was ineffective for failing to adequately prepare for trial, and therefore he was properly denied postconviction relief, because counsel was prepared to subpoena at least one witness to testify on petitioner's behalf, the defense team adequately investigated the background of an alternative suspect and counsel was prepared to effectively cross-examine him, the alternative suspect was ruled out in one of petitioner's cases, and the victim was clear that it was petitioner who had been in her driveway at the time of the burglary. Aho v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 347 (Tenn. June 6, 2018).

Petitioner failed to show that counsel's failure to call two witnesses to testify at trial prejudiced the outcome of the trial, and therefore he was properly denied postconviction relief, because he failed to offer any proof regarding what the witnesses would have said had they been called to testify, counsel testified that petitioner never informed her that the first witness drove him to the movie theater on the night in question, and counsel made a strategic decision not to call the second witness because he had been having seizures, could not remember anything, and did not want to appear at trial. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 6, 2018).

Petitioner failed to show that his counsel was ineffective for failing to be prepared for trial, and therefore he was properly denied postconviction relief, because counsel testified that she did extensive research about the proper use and admittance into the present pending indictment that was set for trial, and petitioner failed to show that he was prejudiced, as on direct appeal the court found that the evidence relating to the 2005 charges was admissible and there was overwhelming proof of petitioner's guilt. Bell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 8, 2018).

Petitioner failed to show that counsel was ineffective for failing to look into the victim's sexual history because counsel testified that she could not find the victim. Bell v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. Mar. 8, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's failure to move to dismiss new charges on grounds of vindictive prosecution and unreasonable delay because (1) the inmate was told the charges could be brought, and (2) the State had probable cause to bring the charges. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Defendant failed to establish by clear and convincing evidence that defendant's trial counsel was aware of a photograph and deficient in failing to introduce the photograph into evidence because there was not a reasonable probability that the verdict would have been different, even if the watch in the post-conviction photograph was the same watch allegedly stolen from the victim, as the evidence supported the conclusion that defendant attempted to commit aggravated robbery by taking the victim's money, even if the victim's watch was not taken. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 144 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 426 (Tenn. July 18, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's alleged failure to argue the inmate's stop was invalid under the “cite and release” statute or to argue the inmate was intoxicated when the inmate confessed because (1) counsel researched the statute and found the statute did not apply, and (2) the inmate did not timely make counsel aware of the intoxication. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for appellate counsel's failure to raise bond revocation and denial of the inmate's right to self-representation because (1) bond was properly revoked when the inmate dismissed counsel the day before trial, and (2) the inmate's assertion of the right to self-representation at that time was untimely. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's alleged failure to “timely” inform the inmate of the inmate's confession or to adequately prepare for a suppression hearing because counsel credibly testified counsel informed the inmate of the confession and adequately prepared for the hearing. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Defendant failed to establish by clear and convincing evidence that defendant's trial counsel provided ineffective assistance of counsel because the evidence showed that defendant's trial counsel was only absent in defendant's trial during jury deliberations and the reading of the verdict. Accordingly, defendant failed to establish that trial counsel effectively pressured defendant not to testify in defendant's own defense by informing defendant that counsel would be absent during defendant's testimony. Perry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 144 (Tenn. Crim. App. Feb. 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 426 (Tenn. July 18, 2018).

Inmate was not entitled to post-conviction relief for appellate counsel's failure to argue the proper sentencing range because trial counsel had correctly determined that the inmate's prior convictions could be used to enhance the inmate's sentence. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Inmate was not entitled to post-conviction relief for trial counsel's alleged failure to interview witnesses because the inmate did not present the witnesses at the evidentiary hearing on the inmate's petition for post-conviction relief. Pettie v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 153 (Tenn. Crim. App. Feb. 27, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to argue that the victim did not suffer serious bodily injury still failed, as counsel testified that he could not make a good faith argument to that effect, the post-conviction court determined this was a matter of trial strategy, and the court agreed on review. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Petitioner failed to state his claim of ineffective assistance regarding the failure to object to a machete photograph with any specificity in his petition, and because the issue was not addressed in the order denying relief and petitioner cited no authority or argument, he did not overcome the presumption of waiver; in any event, his claim failed, as the photographs were not a part of the record, plus petitioner confessed to swinging the machete, and neither deficient performance nor prejudice was shown. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to visit the crime scene still failed, as he failed to explain what further investigation by trial counsel of the crime scene would have revealed, and the court would not speculate as to what evidence further investigation might have uncovered. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to prepare him to testified for trial still failed, as the State withdrew its notice of its intent to impeach the him with prior convictions if he chose to testify, he still did not testify, and the court had previously addressed the issue on direct appeal and concluded that the record showed he voluntarily and personally waived his right to testify in his own defense. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to negotiate a more favorable plea offer still failed; trial counsel wrote petitioner a letter outlining, in part, the potential sentencing outcomes and counsel's recommendation to accept a plea offer, which defendant initialed and recognized. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to call witnesses at the sentencing hearing still failed, as he offered no citation in support of his argument, the sentencing hearing was not a part of the record, and the court failed to see how petitioner growing up without a father would have caused the trial court to fashion a different sentence, and he failed to show that presenting his mother at the hearing would have resulted in a different outcome. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Petitioner failed to establish that he received improper advice about his Range II classification or that any improper advice from counsel impacted his decision to reject the 15-year-offer and proceed to trial; petitioner was aware of the information he needed to make an informed decision about whether to accept or reject the plea agreement. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Defendant failed to establish that defendant received ineffective assistance from defendant's trial and appellate counsel by the alleged inadequacy of the investigation by counsel of the relationship between defendant and the alleged rape victim. Furthermore, although defendant argued that trial and appellate counsel were ineffective in their handling of prosecutorial misconduct and jury instruction issues, defendant's claims were without merit. Guinn v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 257 (Tenn. Crim. App. Apr. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 499 (Tenn. Aug. 8, 2018).

Law enforcement had the option of having petitioner's car towed and subsequently searched, and while the State had to show that impounding the vehicle was necessary, the search would have likely been justified pursuant to this exception, and nothing showed that impounding petitioner's car was inappropriate, such that ineffective assistance of counsel was not established and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Petitioner failed to show deficient performance from counsel's failure to challenge the his arrest for lack of probable cause, and thus he was not entitled to post-conviction relief; witnesses testified to helping arrange a drug deal between petitioner and the victim on the evening the victim was killed, one witness was present when petitioner tried to rob the victim and shot him, and the other witness testified that petitioner made some questionable statements indicating that he had taken money from the victim. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Trial counsel was not deficient for failing to impeach an attorney with mere allegations of misconduct, the introduction of which might have resulted in a mini-trial concerning those collateral matters and unnecessarily alienated the jury; the court could not speculate what might have happened at petitioner's state trial had the attorney been so impeached, and thus petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Waiver notwithstanding, petitioner failed to show deficient performance or prejudice regarding trial counsel's failure to seek recusal due to any ex parte communication involving enhanced security procedures; on direct appeal, it was determined that the trial court did not abuse its discretion by imposing additional security measures in the courtroom, and petitioner failed to establish that the increased measures prejudiced his trial, such that he was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

After his original motion in federal court was denied, trial counsel had the unique benefit of hindsight and made a strategic decision not to file a similar motion in state court, and because there was no apparent reason to anticipate any more success with the same suppression motion in state court, counsel's strategic decision was not questioned, and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Trial counsel was not ineffective for failing to file a motion to recuse the trial judge on the ground that he was the same judge who issued the search warrant for petitioner's automobile; a trial judge's issuing a search warrant would not disqualify the same judge from later presiding over the case, and there was no need why the judge who issued the search warrant was a needed witness at a Franks hearing, and thus petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Petitioner's arrest was based upon probable cause and he failed show that the government delayed the probable cause hearing for unreasonable purposes, and thus even if trial counsel had raised this issue in a motion to suppress, the trial judge would have found no violation; ineffective assistance was not shown and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Because petitioner's underlying issues regarding recusal of the trial judge are without merit, trial counsel was not required to file a futile motion irrespective of the deliberate nature of the decision, and petitioner was not entitled to post-conviction relief. Harris v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 526 (Tenn. Aug. 13, 2018).

Counsel thoroughly investigated the economic motive defense, but rather than pursue it and expose petitioner to a likely damaging challenge to his credibility, counsel chose to focus on the victims' credibility; as counsel made a reasonable strategic decision not to pursue the defense at trial, petitioner's claim of ineffective assistance of counsel failed, and petitioner was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Trial court did not err by failing to instruct the jury on the lesser-included offenses of misdemeanor assault and misdemeanor child abuse and neglect and counsel was not ineffective for failing to request such instructions, as petitioner was convicted of either the charged offenses or attempt, the issue had no merit, petitioner's claim of ineffective assistance of counsel failed, and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Counsel's decision not to object to the prosecutor's reference to certain evidence in closing argument was a reasonable tactical decision, and the prosecutor's use of the term “pedophile” was not improper, as there was evidence that petitioner picked up the child victim from school and the topic of grooming and pedophilia was discussed; petitioner's claim of ineffective assistance of counsel failed and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Petitioner's claims of ineffective assistance failed and he was not entitled to post-conviction relief; although he claimed that counsel failed to properly investigate the case, there was no proof regarding either petitioner's alleged alibi or mental health defenses presented at the post-conviction hearing, the court could not speculate, and these claims were not proven by clear evidence. Jones-Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. Apr. 25, 2018).

Counsel testified that he discussed the issue of testifying with petitioner several times and that petitioner made his own decision not to testify; petitioner's claim of ineffective assistance of counsel failed and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Counsel and a jury consultant used questionnaire information to rank potential jurors, and counsel believed that the jurors' positives outranked the negatives, and as petitioner failed to show that the jury was not impartial, his claim of ineffective assistance of counsel failed and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Petitioner's claims of ineffective assistance failed and he was not entitled to post-conviction relief; although he claimed he was confused about the charges and would not have pleaded guilty but for the actions of counsel, counsel testified that petitioner understood and made the decision to accept the plea agreement himself, and the record supported the finding that he knowingly and voluntarily entered his guilty pleas. Jones-Smith v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. Apr. 25, 2018).

Trial counsel's decision not to seek a severance was a reasonable strategic decision, petitioner's claim of ineffective assistance of counsel failed, and he was not entitled to post-conviction relief. Presson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 570 (Tenn. Sept. 13, 2018).

Trial counsel was not ineffective for failing to present evidence regarding the victim's cause of death that the inmate thought was more reasonable, because trial counsel made a reasonable strategic decision to use a former medical examiner that counsel had used before as an expert in the inmate's case. Scott v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. Apr. 27, 2018).

There was not a reasonable probability that if trial counsel had presented expert testimony on alcoholism and intoxication the result would have been different, because even if the inmate only found the victim unconscious and battered the morning after the incident, he did not call 9-1-1 until the afternoon when instructed to do so by someone else. Scott v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. Apr. 27, 2018).

Trial counsel was not ineffective for failing to advise the inmate to testify at trial, as the prosecutor would have cross-examined the inmate about his prior had acts, claim he did not notice the victim's injuries when he first saw her, and his calling a friend to come check on the victim rather than 9-1-1. Scott v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. Apr. 27, 2018).

Defendant failed to prove by clear and convincing evidence that defense counsel provided ineffective assistance, at defendant's trial for rape by coercion and criminal exposure to HIV, by failing to request a bill of particulars, failing to call particular witnesses at trial, failing to obtain cell phone records and cell tower data, failing to advise defendant of the nature of the charges and the potential penalties that defendant faced, failing to effectively cross-examine the victim, and failing to request an accomplice jury instruction. Chandler v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. May 9, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 592 (Tenn. Sept. 13, 2018).

Inmate was not entitled to postconviction relief on his claim that counsel was ineffective for failing to call several witnesses to aid in his defense, because the inmate failed to meet his burden of proof by presenting any of those witnesses or records during the postconviction hearing. Lanier v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2018).

Trial counsel was not ineffective for failing to object to alleged prosecutorial misconduct, as counsel stated that, in his professional experience, nothing in the State's case constituted prosecutorial misconduct, and the postconviction court found no proof of prosecutorial misconduct during the trial. Lanier v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2018).

Counsel was not deficient for failing to interview witnesses, where counsel credibly testified to interviewing the inmate's witnesses and making a strategic decision not to call the character witnesses because he did not fell they were helpful. Bishop v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 15, 2018).

Inmate could not prove counsel was deficient for failing to object to leading questions, which the inmate identified as questions calling for a “yes or no” response, as he could not show any objection would have resulted in the reasonable probability of an acquittal Bishop v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 15, 2018).

Inmate made no specific allegation regarding how viewing the victim's forensic interview would have effected his trial strategy and thus, counsel was not ineffective for failing to permit the inmate to view the interview. Bishop v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 15, 2018).

Trial counsel testified that he attempted to secure a pathologist but was unable to do so, and he put considerable effort into reviewing and understanding the medical proof, such that petitioner had not shown deficiency or prejudice as to her claim of a failure to investigate and call witnesses, and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Petitioner did not specify how counsel could have further discredited certain testimony regarding her emotional state, and counsel presented proof tending to counter the prosecution's evidence that petitioner was unemotional; she did not establish either deficiency or prejudice and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Decision not to move for a severance was a strategic decision, and petitioner failed to present any argument that a motion to sever would have been granted, such that she had not shown deficiency or prejudice and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Doctor considered petitioner's ability to work with counsel and determined that petitioner met the medical criteria for competency, including the ability to consult with counsel and assist in her defense; without expert testimony showing that petitioner was not competent, she could not establish prejudice for ineffective assistance of counsel purposes and she was not entitled to post-conviction relief. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 17, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 608 (Tenn. Sept. 17, 2018).

Appellate counsel was not deficient for failing to file the transcript from the hearing on the motion in limine to exclude evidence of the victim's prior drug use where the outcome of the inmate's appeal would not have changed even if the transcript had been included, since the trial court did not abuse its discretion by excluding evidence of the victim's drug use prior to or subsequent to the incident. Lucio v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. May 21, 2018).

Inmate's claim that counsel was ineffective under the Sixth Amendment and Tenn. Const. art. I, § 9, counsel did file an application for permission to appeal to the supreme court under Tenn. R. App. P. 11, and the supreme court denied an application under Rule 11, thought it was not clear it was the one counsel filed or the one the inmate filed, on the merits. Thomas v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 21, 2018).

Although trial counsel was ineffective by failing to request a jury instruction regarding accomplice testimony, the post-conviction court did not err in denying relief because defendant failed to show that defendant was prejudiced by the absence of the instruction as there was sufficient evidence, wholly apart from the accomplice's testimony, from which the jury could have found defendant guilty of the offenses beyond a reasonable doubt. Boatwright v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 22, 2018).

Although trial counsel's failure to learn of a victim's recanting statement made to an investigator constituted deficient performance, defendant failed to prove that defendant was prejudiced by the deficiency because even if the victim had been asked about making the prior inconsistent statement at trial, and had denied making it, the investigator's testimony would not have changed the outcome of the trial as the victim testified about the events in the robbery and said that the victim was able to identify defendant's voice and face. Boatwright v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. May 22, 2018).

Inmate's claims that trial counsel was ineffective failed, as the inmate did not introduce testimony at the post-conviction hearing to show he was prejudiced by photos of the victim, counsel testified that the testimony of another inmate was admissible and counsel called witnesses to impeach the testimony, and the inmate failed to present testimony at the post-convictiong hearing to support the claim that counsel was deficient in failing to present evidence of his mental state at sentencing. Fritts v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. May 24, 2018).

Petitioner did not specify which mitigating factors applied to him and did not present any evidence of mitigating factors, such that he failed to meet his burden of showing that counsel was deficient, and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Counsel discussed the decision of whether to testify with petitioner and advised him against testifying, and contrary to petitioner's claim, counsel was not deficient in this regard and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Petitioner failed to prove his ineffective assistance allegation and therefore was not entitled to relief; counsel testified that he advised petitioner that an appeal had to be filed within 30 days and that petitioner stormed out, petitioner would not return counsel's calls requesting permission to file an appeal and warning that time was limited, and petitioner did not present evidence as to the scope of counsel's representation beyond the trial, or whether counsel failed to file a motion for a new trial. Mpawinayo v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 421 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 563 (Tenn. Sept. 13, 2018).

Counsel testified that he obtained discovery, met with petitioner a number of times, reviewed the discovery with him, and utilized an investigator, and as petitioner failed to present evidence of any additional investigative steps that counsel should have taken or what an additional investigation would have revealed, petitioner failed to show that counsel was deficient and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

There was no evidence establishing that the State was willing to offer a plea and that petitioner would have accepted a plea agreement; counsel was not deficient in this regard, and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Counsel testified that he reviewed the discovery materials, he advised petitioner against relying solely upon an alibi defense and prepared a defense that petitioner did not know the victim based on petitioner's repeated representations, and counsel did not learn until the trial that petitioner had a prior relationship with the victim; petitioner presented no evidence that a viable alternative defense theory existed, trial counsel was not deficient in this regard, and petitioner was not entitled to post-conviction relief. Moutry v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 582 (Tenn. Sept. 14, 2018).

Petitioner failed to prove ineffective assistance of counsel and therefore he was not entitled to post-conviction relief; although petitioner challenged the voluntariness of his guilty pleas, he failed to include the guilty plea hearing transcript in the record and the transcript was not offered at the post-conviction hearing, defense counsel testified that he did not recall petitioner having mental health issues and he had no basis to believe that he suffered from such, and no expert was offered to refute this testimony. Osborne v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. June 1, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 542 (Tenn. Sept. 14, 2018).

Inmate's ineffective assistance claims failed, as he failed to demonstrate he was prejudiced when trial counsel did not use an expert on the issue of the inmate's epilepsy because the inmate did not present such an expert to testify at the post-conviction hearing, trial counsel's decision on which witnesses to call was strategic, and the inmate's own testimony admitting that counsel had properly prepared him left his claim that counsel failed to adequately prepare him lacking in merit. Greenwood v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 7, 2018).

Petitioner was properly denied postconviction relief on his claim that his counsel was ineffective for failing to appeal whether the cumulative effect of the errors at trial rendered the trial fundamentally unfair because counsel preserved and presented several issues, and because the appellate court found that there was only one error, the court concluded that petitioner could not show that he was prejudiced by counsel's failure to appeal the cumulative error issue. Clark v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. June 19, 2018).

Lead counsel's failure to argue in the motion for new trial and on appeal that the trial court erred by declining to instruct the jury that unauthorized use of a motor vehicle was a lesser-included offense of carjacking was deficient, but the inmate failed to prove prejudice and thus, he was not entitled to relief. Moore v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 493 (Tenn. Crim. App. July 3, 2018).

State presented witnesses to testify regarding the chain of custody of the cocaine and petitioner had not shown that counsel's failure to move for a hearing to establish the chain of custody prior to trial was deficient, nor had he shown a reasonable probability that the proceeding would have had a different outcome had counsel done so, and thus the post-conviction court properly denied relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Counsel testified that he and petitioner discussed the ramifications of petitioner giving testimony on several occasions, and counsel filed a motion to exclude evidence of petitioner's prior convictions; petitioner failed to show that counsel performed deficiently and thus petitioner was not entitled to post-conviction relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Because the record did not show that petitioner informed counsel of the factual basis for asserting entrapment, he had not demonstrated deficiency in counsel's failure to file a pretrial notice; furthermore, petitioner could not establish a reasonable probability that a properly preserved entrapment defense would have changed the outcome of trial, as he did not accidentally and unexpectedly find rocks of crack cocaine in his pocket and then give them to law enforcement only because he was persuaded to do so. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Counsel testified that he met with petitioner numerous times, that petitioner disappeared for a period of time while counsel made strenuous efforts to find him, and that he reviewed discovery with petitioner; counsel was not deficient in failing to meet with petitioner, and he was not entitled to post-conviction relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Petitioner claimed that counsel failed to investigate or call witnesses on his behalf at trial, but those witnesses were not presented at the post-conviction hearing, such that petitioner failed to establish prejudice, plus the testimony that he claimed would have come from the witnesses did not relate to the commission of the offense; he was not entitled to post-conviction relief. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Trial counsel's examination of a witness was not deficient, as counsel had no legal basis for objecting to the trial court's limitation of the witness's testimony and it was unlikely that the witness's testimony would have altered the result of the inmate's trial. Carter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 591 (Tenn. Crim. App. Aug. 8, 2018).

Inmate failed to establish that he was prejudiced by trial counsel's failure to discover and interview a restaurant server, because the sever remembered serving the inmate while police drove past but could not remember the date of that event and thus, the server would not have been able to provide a solid alibi for the inmate. Carter v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 591 (Tenn. Crim. App. Aug. 8, 2018).

Ineffective assistance of counsel claim failed, as trial counsel's strategy and tactical decisions were sound and made after thorough preparation and investigation, and the inmate failed to prove counsel was ineffective for failing to allow him to testify to establish that he acted in defendant of others, as the inmate agreed that the theory would not survive cross-examination where the defense would have to overcome the inmate having used more force than necessary to eliminate the threat. Naive v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 599 (Tenn. Crim. App. Aug. 10, 2018), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 21 (Tenn. Jan. 15, 2020).

Petitioner's trial counsel was not ineffective for failing to argue that petitioner's arrest was not supported by probable cause, and therefore petitioner was properly denied postconviction relief, because from the facts, a prudent person would have believed that petitioner was involved in the matter, including that after the murder petitioner was found in his girlfriend's car which matched the description of the vehicle at the scene of the shooting, he had been in possession of the vehicle and his girlfriend's phone around the time of the murder, and petitioner admitted his involvement to the officers. McKay v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 15, 2018).

Petitioner's counsel was not ineffective for not timely filing his motion for new trial because counsel was granted a delayed appeal and appealed issues pursuant to a plain error review, and petitioner could not show that he was prejudiced because he did not offer proof that he would have been entitled to appellate relief had any of the issues been raised. McKay v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 15, 2018).

Petitioner's trial counsel was not ineffective for failing to raise the 48-hour hold issue in his motion to suppress because petitioner did not give his statement beyond the 48-hour time period mandated by Gerstein. McKay v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 15, 2018).

Counsel was not ineffective for failing to instruct the jury on the lesser included offense of facilitation of aggravated robbery because there was no evidence that someone else committed the robbery and that petitioner knew and gave them substantial assistance, as the State offered evidence that petitioner committed the robbery, which included DNA evidence and petitioner's admissions to two witnesses. Brown v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 674 (Tenn. Crim. App. Aug. 31, 2018).

Petitioner failed to prove that trial counsel was deficient for not calling petitioner as a trial witness, and he was not entitled to post-conviction relief; counsel stated that he and petitioner had extensive discussions relative to petitioner testifying and that his testimony would have been devastating to the defense, and the trial court conducted a hearing in which petitioner was advised of his right to testify and he stated that he elected not to testify. Oliver v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Sept. 5, 2018).

Counsel was not ineffective for failing to cross-examine petitioner's girlfriend with letters petitioner had provided because while cross-examining the girlfriend on her statement that she spoke to the police because she was angry may have aided petitioner slightly, the letter also contained multiple damning statements. Brown v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 674 (Tenn. Crim. App. Aug. 31, 2018).

Defense counsel was not ineffective for failing to interview petitioner's cellmate before trial, and therefore petitioner was properly denied postconviction relief, because the evidence did not preponderate against the postconviction court's finding that the cellmate was not credible during his postconviction hearing testimony when he testified that he had believed he had reviewed discovery and was unsure whether his trial testimony was based on discovery or what petitioner had told him. Brown v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 674 (Tenn. Crim. App. Aug. 31, 2018).

Defendant failed to show that defendant received deficient representation of counsel because defendant pointed to no facts in defendant's brief which showed that trial counsel was deficient, but merely referred to defendant's own testimony about trial counsel's alleged lack of communication, failure to explain the charges, and threat to withdraw if defendant did not take a guilty plea. Additionally, trial counsel met with defendant multiple times, reviewed all of the discovery materials, and successfully bargained for a lower sentence. Al-Khafajy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 746 (Tenn. Crim. App. Oct. 2, 2018).

Trial court did not err by denying defendant's ineffective assistance of counsel claim because the record support the trial court's determination that defendant did not show prejudice as a result of counsel's failure to show the video recording taken from the police cruiser to defendant before the trial, as it rejected defendant's testimony that he would not have pleaded guilty if he had known of the recordings contents before trial. State v. Gibson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 754 (Tenn. Crim. App. Oct. 3, 2018).

While petitioner claimed that but for counsel's deficient advice, he would not have entered his guilty plea, he never said he would have rejected the plea as a whole; the only way for him to avoid the risk of a first degree murder conviction and life sentence was to accept the State's offer in exchange for his guilty pleas to voluntary manslaughter and possession of a firearm; counsel did not provide ineffective assistance and petitioner was not entitled to post-conviction relief. Evans v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 769 (Tenn. Crim. App. Oct. 15, 2018).

Petitioner had not demonstrated a reasonable probability of a different verdict had the motion to suppress been file and thus he was not entitled to post-conviction relief; the telephone, which was used as collateral in the commission of the crime, was seized during a search incident to arrest, the drugs were in the possession of police because petitioner delivered them to an officer, and the evidentiary value of the telephone was marginal. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

Trial counsel was not ineffective for failing to obtain independent ballistics testing of the cartridge casings found at the crime scene because counsel made a reasonable decision, given that at the time there was no physical evidence linking petitioner to the crime scene and there was a chance that the testing might reveal inculpatory evidence. Clardy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 17, 2018).

Trial counsel was not ineffective for foregoing DNA testing of the blood trail that led away from the crime scene because there was no evidence that any suspect was injured and it was likely, even without DNA testing, that the blood belonged to one of the victims. Clardy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 17, 2018).

Petitioner failed to show that he was prejudiced by trial counsel's failure to procure an eyewitness expert because the expert petitioner presented could not opine as to the correctness of the witness's identification. Clardy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 17, 2018).

Petitioner failed to show that he was prejudiced by counsel's failure to obtain DNA testing of various objects because he presented no evidence to what DNA testing should have been conducted and/or how it would have benefitted him. Clardy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 17, 2018).

Petitioner failed to show that he was prejudiced by trial counsel's failure to file an alibi notice for petitioner's wife because she provided an alibi for petitioner on cross-examination when she stated that he was at home with her the whole day and evening of the crime, and petitioner presented an additional alibi witness. Clardy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 17, 2018).

Trial counsel was not ineffective for failing to cross-examine an eye witness about alleged drug activity at the body shop because it was clear to the court that counsel made a reasonable strategic decision to avoid the mention of drugs. Clardy v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Oct. 17, 2018).

Petitioner failed to show that his trial counsel was ineffective for inadequately preparing for trial, and therefore he was properly denied postconviction relief, because even though counsel estimated that she spent only 15 to 20 hours preparing, the case was not complicated, as it was petitioner's version of events versus the two victims' version, and by its verdict the jury accredited some of petitioner's version. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. Nov. 29, 2018).

Petitioner failed to show that his trial counsel was ineffective for failing to request a jury instruction on facilitation because he was not charged with criminal responsibility and no reasonable jury could have found from the evidence that he knew that the other person in the car was going to attempt to kill the victim but lacked the intent for criminal responsibility. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. Nov. 29, 2018).

Petitioner failed to show that his trial counsel was ineffective for failing to properly impeach of object to the State's characterization of the victim's testimony because counsel cross-examined him about his inconsistent testimony, she brought out that he had previously said that petitioner did not have a weapon, and how the victim might have responded had counsel questioned him more or further on the issue was pure speculation. Jackson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. Nov. 29, 2018).

Petitioner failed to show that she was prejudiced by trial counsel's failure to hire an expert witness in the field of pediatric orthopedics to testify about the victim's injuries, and therefore she was properly denied postconviction relief, because she did not present the testimony of any expert witness at the postconviction hearing. Hurtado v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 6, 2018).

Petitioner failed to show that counsel was ineffective for failing to properly investigate and prepare for trial for the issues of domestic violence to be presented at trial because counsel testified that he got the impression from petitioner's boyfriend that the domestic abuse did not happen, petitioner admitted during the postconviction hearing that she never told counsel that she was abused by her boyfriend, and the jury heard testimony concerning the alleged abuse against petitioner and the victim, petitioner's infant son, by the boyfriend but chose to convict petitioner of child abuse and neglect. Hurtado v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 6, 2018).

Petitioner failed to show that counsel was ineffective in the plea negotiation process because counsel testified that while he could not specifically recall if there was a 12-year offer from the State that it was always his practice to convey settlement offers to his clients, he would have communicated the seriousness of petitioner's case to her and family, and that he would never have told her that he could beat a plea offer of 12 years at 100 percent. The postconviction did not find credible petitioner's testimony that she did not understand the seriousness of the charges against her when she went to trial. Hurtado v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 6, 2018).

Petitioner failed to show that his trial counsel was ineffective for failing to conduct a Momon hearing because counsel testified that he was absolutely certain that petitioner was given the option to testify, had petitioner made it clear to counsel that he wanted to testify he would have been allowed to, and that there was no disagreement about him not testifying at the time counsel and the State had a bench conference about him testifying. Petitioner also failed to show any prejudice because his testimony would have been cumulative to his statement to police that was introduced at trial. Thompson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 893 (Tenn. Crim. App. Dec. 11, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 188 (Tenn. Apr. 12, 2019).

Defendant failed to prove ineffective assistance of counsel due to defendant's trial counsel failing to call defendant's parent as a witnesses because counsel made an informed tactical decision not to call defendant's parent as a witness given the weakness of the parent's testimony. Doria v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. Dec. 12, 2018).

Defendant failed to prove ineffective assistance of counsel due to defendant's original counsel forcing defendant to participate in a television interview prior to trial because defendant failed to prove by clear and convincing evidence defendant's factual allegation that the State of Tennessee ceased plea negotiations due to the television interview. Doria v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. Dec. 12, 2018).

Trial counsel was not ineffective as the suppression hearing, as the outcome of the suppression hearing would have been same even if the evidence showed that the officer knew there was no outstanding warrant for the inmate at the time of his arrest, as the officer had reasonable suspicion the inmate was engaged in narcotics activity and the inmate failed to show that the State knowingly presented false testimony at the hearing on the motion to suppress. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 915 (Tenn. Crim. App. Dec. 21, 2018).

Inmate failed to show that trial counsel improperly advised the inmate concerning the gang enhancement statutes, which had not been ruled unconstitutional at the time of the plea. Nelson v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 915 (Tenn. Crim. App. Dec. 21, 2018).

Claim of ineffective assistance of counsel failed because trial counsel's failure to conduct further investigation into the victim's juvenile record based on a belief that a more abrasive cross-examination risked making the jury angry was reasonable. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Claim of ineffective assistance of counsel failed because counsel made a reasoned tactical decision not to file any motions to suppress and any alleged error did not affect the outcome of the trial where, inter alia, the inmate could not show that a motion to suppress text messages with the victim would have been granted because the records were lawfully obtained through another method and the inmate had no right of privacy to a video taken of him at an ATM. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Claim of ineffective assistance of counsel failed because the inmate failed to show that a motion to suppress his statements to police would have been successful give his valid waiver of his Miranda rights. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Claim of ineffective assistance of counsel failed because the inmate failed to show that a motion to suppress a video of him at an ATM or his bank records would have been successful since the provision of both by the bank did not violate the inmate's right to privacy. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Claim of ineffective assistance of counsel failed because the inmate failed to show that a motion to suppress records of cell phone related to third parties would have been successful. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Counsel's failure to investigate issues concerning the State's expert medical testimony about the timing of the victim's injury did not amount to ineffective assistance, as the evidence, including the ATM recording, the hotel owner's testimony, text messages, and the victim's own statements overwhelmingly supported a finding of guilt. Blunkall v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 11 (Tenn. Crim. App. Jan. 4, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to object to the prosecutor's cross-examination of petitioner concerning his silence following his arrest, and therefore he was properly denied postconviction relief, because the prosecutor's line of questioning was not improper, as the purpose of the questioning was to highlight the discrepancies between petitioner's post-arrest statement and his testimony at trial. Fuller v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 11, 2019).

Petitioner failed to show that his counsel was ineffective for meeting with him only once, and therefore petitioner was properly denied postconviction relief, because counsel testified that they met five times to discuss the State's plea offer, petitioner elected to accept the plea offer of his own volition, and at the plea hearing petitioner testified that he was both happy with counsel's representation and understood the plea. Shutt v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Feb. 5, 2019).

Petitioner failed to show that his counsel was ineffective for not contacting witnesses that might have testified on his behalf at trial because counsel did not recall any such requests, confirmed that he had no records of any calls from family members, and petitioner failed to present any witnesses at the hearing. Shutt v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Feb. 5, 2019).

Petitioner failed to show that his trial counsel performed deficiently for failing to use petitioner's voluntary intoxication as a defense because counsel testified that his trial strategy was to use petitioner's statement to police to prove self-defense, petitioner had told the police, family members, and counsel that he stabbed the victim in self-defense, and his description of what happened was consistent throughout the proceedings. Gibson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 129 (Tenn. Crim. App. Feb. 26, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to subpoena a witness before trial, and therefore he was properly denied postconviction relief, because the witness testified that he was absent from the trial due to his hospitalization and he would have testified without a subpoena but for his illness. Counsel testified that the witness had been present in court prior to his hospitalization and therefore counsel was not unreasonable in expecting that the witness would have been available to testify. Vales v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Mar. 11, 2019).

Petitioner failed to show that his trial counsel was ineffective for allegedly failing to properly cross-examine two victims because evidence that the victims were intoxicated was presented to the jury and counsel could not be faulted for not impeaching the victims with evidence that only came to light at the postconviction hearing. Vales v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Mar. 11, 2019).

Post-conviction court did not err in denying petitioner relief, as his guilty pleas were knowingly and voluntarily entered and ineffective assistance of counsel was not shown; counsel's failure to inform petitioner that he would be subject to lifetime registration did not render his pleas invalid as counsel was not required to explain fully the sexual offender registry. Counsel explained to petitioner that he would be on the sex offender registry and the ramifications of what that meant. Ford v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 14, 2019).

Post-conviction court did not err in denying relief as ineffective assistance was not shown; counsel objected to the prosecutor's use of Florida police reports during her argument, but the majority of the facts described were contained in the presentence report, which was reliable hearsay, plus prejudice was not shown, as the Florida police reports were not used to establish any enhancement factor, plus the trial court found he was dangerous offender as justification for imposing consecutive sentences. Thompson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 14, 2019).

Post-conviction court did not err in denying relief regarding counsel's conduct at petitioner's sentencing hearing, as he failed to show ineffective assistance of counsel; his guilty pleas were knowingly and voluntarily entered, as the trial court informed him of the range of punishment, he stated that he understood, plus he testified that he had instructed counsel to accept a plea agreement without an agreed upon sentence. Thompson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. Mar. 14, 2019).

In a postconviction proceeding, the evidence did not preponderate against the post-conviction court's findings that trial counsel was not ineffective, but showed that counsel reviewed the discovery, negotiated a favorable plea, met with the inmate on multiple occasions both in and out of court, and advised the inmate regarding the strength of the State's case and the terms of the plea agreement. Fisher v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 215 (Tenn. Crim. App. Apr. 5, 2019).

Petitioner failed to show that his counsel was ineffective for failing to explain the foundational basis of the felony murder charge, and therefore he was properly denied postconviction relief, because co-counsel testified that he and petitioner discussed the elements of first degree felony murder and aggravated burglary, and that he recalled telling petitioner that the mental state of felony murder related to whether petitioner intended to commit a burglary, not the victim's death. Ray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Apr. 16, 2019).

Petitioner failed to show that his counsel was ineffective for failing to investigate whether the evidence supported the aggravated burglary as the basis for the felony murder conviction because co-counsel testified that a witness stated that the victim was stabbed inside the victim's apartment and the victim was found inside the apartment. Ray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Apr. 16, 2019).

Petitioner failed to show that his counsel was ineffective for failing to advise him of all possible defenses because the evidence showed this his counsel explained to petitioner the possible outcomes of the case before he pleaded guilty, co-counsel testified that the prosecutor believed petitioner's mental health mitigated his culpability for second degree murder but made clear that the 25-year offer was the State's only offer and that if the case proceeded to a trial, the State would seek a first degree felony murder conviction, and co-counsel said that nobody pressured petitioner to accept the offer and that the Petitioner had to decide whether to accept the offer or to proceed to trial. Ray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Apr. 16, 2019).

Claim of ineffective assistance of counsel failed because trial counsel testified that the inmate was correctly advised as to release eligibility dates and that counsel made the decision not to call defendant's wife as an alibi witness because the wife's alibi seemed contrived, included time gaps, and the wife said she did not want to testify. Green v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Apr. 30, 2019).

Petitioner failed to show that his counsel was ineffective for failing to file various motions petitioner requested, and therefore he was properly denied postconviction relief, because petitioner failed to identify what information would have been garnered if counsel had filed the motions and he did not identify the evidence he thought counsel should have sought to suppress. Counsel unsuccessfully sought the suppression of petitioner's confession to the police. Scott v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 280 (Tenn. Crim. App. Apr. 30, 2019).

Petitioner failed to show that her counsel was ineffective for allegedly telling her that the trial court would order her to serve her voluntary manslaughter sentence on probation, and therefore she was properly denied postconviction relief, because the postconviction court credited counsel's testimony that he did not promise petitioner a particular outcome at the sentencing hearing and that he believed that there was a good chance petitioner would get a probation sentence or at least split confinement. Jetton v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 281 (Tenn. Crim. App. Apr. 30, 2019).

Allegations of ineffective assistance of counsel lacked merit because the inmate failed to establish that had trial counsel been better prepared there was a reasonable probability the drugs would have been suppressed, failed to show counsel was ineffective for not investigating whether the inmate was a Range I or a Range II offender as the inmate failed to establish what further investigation would have revealed, and trial counsel adequately advise the inmate on the concept of constructive possession. Brewer v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 678 (Tenn. Crim. App. May 7, 2019).

Petitioner failed to show that his trial counsel was ineffective for urging him to reject a plea offer because any advice counsel gave was based on a thorough investigation of the case and the codefendant testified that the offer was almost immediately rescinded because the trial court would not accept it. Gray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. May 8, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to object the jury instructions on criminal responsibility because the instruction incorporated the language of T.C.A. § 39-11-403(a). Gray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. May 8, 2019).

Petitioner failed to show that his trial counsel was ineffective for advising him not to testify, and therefore he was properly denied postconviction relief, because counsel's advice that if he testified his prior conviction for having a gun on school grounds may have been admissible had legal merit, and petitioner's proposed testimony would have added little to the proof at trial. Gray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. May 8, 2019).

Inmate was not entitled to post-conviction relief based on the alleged ineffective assistance of counsel, because counsel was not ineffective for failing to file a motion to sever as it would not have been granted and the inmate received benefits from being tried together with co-defendant, the inmate failed to show that more meetings with trial counsel would have altered the course of the trial, the claim of failure to investigate lacked merit as the inmate could not show prejudice, and trial counsel's cross-examination of an officer was not deficient. Williams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. June 7, 2019).

Defendant was not entitled to post-conviction relief on defendant's claims of ineffective assistance of trial counsel because defendant failed to prove that trial counsel failed to provide discovery to defendant, and/or that defendant was prejudiced by not being able to personally review a CD, or that counsel did not properly advise defendant of defendant's rights and options concerning sentencing. McMath v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. June 10, 2019).

Defendant was not entitled to post-conviction relief on defendant's claims of ineffective assistance of appellate counsel because defendant failed to prove that appellate counsel did not provide effective assistance as appellate counsel consulted with defendant, met with trial counsel, and reviewed transcripts from the trial. Furthermore defendant failed to show how appellate counsel's informed decisions, based on appellate counsel's adequate preparation, amounted to unreasonable representation. McMath v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. June 10, 2019).

Record supported the postconviction court's determination that appellate counsel did not provide ineffective assistance because the postconviction court found that counsel did the best he could with the facts and law with which he was presented, and although appellate counsel may not have complied with the letter of Tenn. Ct. Crim. App. R. 10(b) and Tenn. R. App. P. 27(a)(7), the court had determined in the previous appeal that petitioner's ineffective assistance allegations did not warrant relief. Stone v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 358 (Tenn. Crim. App. June 24, 2019).

Inmate was not entitled to post-conviction relief due to counsel's ineffective assistance because (1) counsel rejected the theory that a vehicle collision, rather than the inmate's acts, caused a victim's injuries after thoroughly investigating that theory and reasonably concluding the evidence did not support the theory, in favor of pursuing the victim's letter stating the inmate did not assault the victim, and (2) counsel's failure to include two issues in a new trial motion or on appeal was not prejudicial, as neither alleged error affected the trial's outcome, since a limiting instruction was given regarding testimony that the inmate previously assaulted the victim, and a detective's one general statement about abuse victims' behavior was not prejudicial given the strength of the State's case. Baxter v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. June 25, 2019).

Trial counsel was not ineffective for failing to present evidence that the witness and the victim were cousins in an effort to establish the witness's bias and lack of credibility, and therefore petitioner was properly denied postconviction relief, because petitioner presented no evidence showing that the witness and the victim were cousins and counsel questioned the witness about his friendship with the victim in an effort to show the witness's potential bias toward the victim. Bayman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. July 12, 2019).

Trial counsel was not ineffective for failing to question the witness about the victim's aggressive conduct at the time of the offense because the evidence supported the postconviction court's determination that the victim's returning to the home to obtain his belongings was not a display of aggression. Bayman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. July 12, 2019).

Trial counsel was not ineffective for failing to question the witness about when he provided his police statement because even though the statement initially stated that the witness spoke to the police on September 29, 2009, approximately one and one-half years before the shooting, the last page of the statement reflected the witness' signature and the date and time as May 4, 2011, at 5:46 a.m. Bayman v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 420 (Tenn. Crim. App. July 12, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to present an expert to testify about the spiking of water temperatures in an effort to explain how the child victim's injuries could have occurred quickly because counsel stated that although he consulted with a medical expert, he did not present medical testimony because he did not think that expert would have benefited the defense, and although he did not present expert testimony related to the water heater, counsel researched possible problems with the water heater inside the home and obtained the maintenance records. Pewitte v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. July 31, 2019).

Petitioner failed to show that he was prejudiced by trial counsels' handling of the admissibility of the victim's prior statements because the record made it clear that the victim alleged sexual abuse against petitioner, petitioner confirmed portions of the abuse during a controlled telephone call with the victim, and even though the victim recanted some of her allegations at trial, she did not deny making the prior allegations of abuse against petitioner. Hochhalter v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. Aug. 6, 2019).

Nothing in the record indicated that trial counsel was deficient for failing to review the entirety of the victim's journals because the record showed that counsel was aware of the victim's prior statements, including the ones made in the journals, which they used to support their defense theory. Hochhalter v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. Aug. 6, 2019).

Petitioner failed to show that trial counsel was ineffective for failing to adequately consult with him regarding his right to testify because petitioner stated he decided not to testify after hearing the victim recant at trial and discussing the same with trial counsel, after doing so petitioner engaged in a Momon colloquy and relinquished his right to testify, and the State's case was very strong against petitioner and his proposed trial testimony would not have overcome the overwhelming amount of evidence presented by the State which included his own admissions to the abuse of the victim. Hochhalter v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 464 (Tenn. Crim. App. Aug. 6, 2019).

Petitioner was not prejudiced by trial counsel's failure to seek a pretrial ruling on the admissibility of his juvenile adjudication for felony murder, even though petitioner chose not to testify due to the State's notice that it would impeach him with that evidence, because other evidence that petitioner was not present during the shooting was before the jury, and the jury's verdict reflected that it credited the victim's testimony and rejected evidence that petitioner was not at the scene. In addition, petitioner's previous drug-related conviction could have been used as impeachment evidence. Johnson v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. Aug. 6, 2019).

Post-conviction court did not err in denying the inmate's petition for relief, alleging ineffective assistance because the inmate failed to show that trial counsel, who spend more than an hour going over the plea agreement, failed to advise him and failed to show that failure to conduct further investigation into his gamertag name resulted in prejudice. Shaver v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 502 (Tenn. Crim. App. Aug. 20, 2019).

Petitioner failed to show that his counsel was ineffective for failing to effectively cross-examine an investigator about inconsistencies in his statements, and therefore he was properly denied postconviction relief, because counsel testified that he identified discrepancies in the testimony and used the transcript from the preliminary hearing during cross-examination to highlight those inconsistencies. Duncan v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Sept. 20, 2019).

Petitioner failed to show that his counsel was ineffective for failing to call his codefendant as a witness because counsel testified that the codefendant's charges related to the incident were not yet resolved at the time of petitioner's trial and therefore he was unavailable for discussion and unwilling to testify on petitioner's behalf. Duncan v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Sept. 20, 2019).

Petitioner failed to show that his counsel was ineffective for allegedly talking him out of testifying at his trial because during the Momon hearing petitioner testified that he was knowingly and willingly making the decision not to testify at trial, he signed a form indicating the same, and counsel testified that he reviewed petitioner's right to testify extensively with him and that petitioner decided not to testify. Duncan v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Sept. 20, 2019).

Circuit court properly denied defendant's petition for post-conviction relief because he failed to establish that he received ineffective assistance of counsel inasmuch as trial counsel relied on a behavioral health services' conclusion that defendant was competent to stand trial and able to appreciate the wrongfulness of his actions, trial counsel testified that his personal interactions with defendant led him to believe defendant was competent for trial, and defendant did not present any proof, other than his own testimony, to establish that further expert evaluation would have assisted his case at trial. Webb v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. Aug. 23, 2019).

Record supported the postconviction court's determination that petitioner failed to show that his trial counsel's performance was deficient for failing to file a separate motion to suppress evidence obtained from the search of the computer recovered from the trunk of his car because counsel filed a motion to suppress that conformed to the law as it existed at the time, as counsel filed a motion to suppress the evidence obtained from the search of the car which included the evidence obtained from the search of the computer. Alberts v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. Sept. 16, 2019).

Petitioner failed to prove that counsel's performance was deficient and thus he was not entitled to post-conviction relief; counsel communicated plea offers to petitioner and was justified in believing he rejected them. Although petitioner testified that he thought he had accepted a plea offer for a sentence of four years and one month, the record supported at most that he might have desired an offer involving that sentence, and the evidence showed that the State never formally extended a four-year offer. Torres v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. Oct. 9, 2019).

Counsel was not ineffective for failing to challenge the length of defendant's sentence on direct appeal, and therefore the postconviction court erred by granting a defendant a delayed appeal under T.C.A. § 40-30-113(a)(1), because the evidence presented during the postconviction hearing and the record from the trial established that counsel made a reasonable, strategic decision to forgo challenging defendant's sentence. Counsel testified that he believed the sentenced imposed was consistent with the verdict and the sentencing guidelines, and the transcript of the sentencing hearing and applicable law supported counsel's testimony. Leonard v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 719 (Tenn. Crim. App. Nov. 12, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to investigate the value of the stolen truck and failing to argue that its value was less than $1,000 because the evidence presented was that counsel researched the value of the truck and, based on a guide published by a vehicle valuation and automotive research company, determined that the truck had a value of more than $1,000. Evidence also showed that the truck had been purchased for $1,400. Dalton v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. Nov. 13, 2019).

Petitioner was not entitled to post conviction relief, as he failed to show that counsel falsely threatened that he could be sentenced to death if he proceeded to trial and that this threat induced him to plead guilty; ineffective assistance was not shown. Simmons v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 735 (Tenn. Crim. App. Nov. 14, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to present on direct appeal the argument that the trial court erred by failing to declare a mistrial after being advised of an interaction between jurors, petitioner's girlfriend, and petitioner's son because the trial court conducted a hearing on the issue and found no improper outside influence. The girlfriend testified that she had an interaction with two male jurors during a break in the trial and their conversation was limited to their car battery and jumper cables, and that petitioner's son also spoke to the jurors but she did not know what they talked about. Hughes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Nov. 19, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to explore racial bias during jury selection because counsel testified that he would have questioned any juror about racial bias if he had heard anything indicating a possible bias during his questioning and petitioner presented no proof that racial animus was a significant motivating factor in one or more jurors' finding of guilt. Hughes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Nov. 19, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to challenge the lack of diversity in the venire because counsel testified that he researched the issue by checking census records for the count, he found no evidence that African Americans had been systematically excluded from the jury selection process, and petitioner presented no evidence to the contrary. Hughes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Nov. 19, 2019).

Petitioner failed to show that his trial counsel was ineffective for failing to advise him that he could make an allocution statement at sentencing because petitioner's proposed allocution statement would not have affected his sentence, as he agreed that he told the detective that his motive behind the robbery had been that he had bills to pay and he acknowledged that, at the time of sentencing, the trial court was aware of his statement to the detective regarding why he committed the offense. Hughes v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Nov. 19, 2019).

Defendant was not entitled to post-conviction relief following a conviction for sexually abusing defendant's stepdaughter because defendant failed to prove that defendant was denied effective assistance of counsel based on trial counsel's failure to raise in a motion for new trial the admissibility of opinion testimony from a school resource officer and character testimony regarding the victim from a school counselor and failure to object to the prosecutor's statements during closing argument about the truthfulness of the victim's testimony. Petr Pompa v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Dec. 2, 2019).

Petitioner failed to show that his attorneys performed deficiently in failing to call a witness, and in view of the evidence regarding the witness's potential damaging testimony, petitioner failed to show prejudice; the post-conviction court did not err in concluding that he failed to prove his ineffective assistance claim and he was properly denied post-conviction relief. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Record supported the post-conviction court's determination tha counsel made an informed, tactical decision to agree to a change of venue, and petitioner was not entitled to relief; after a mistrial occurred due to a friendship between a court officer and a juror and after consideration of several factors that counsel thought might affect the likelihood of petitioner's receiving a fair trial in Hickman County, counsel consented to a change of venue to Williamson County. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Petitioner had not identified a reason why the post-conviction court erred in concluding that the evidence fell under a hearsay exception and the court declined to speculate; the post-conviction court did not err in determining that petitioner failed to prove his ineffective assistance claim and he was not entitled to relief. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Record supported the post-conviction court's determination that petitioner failed to show that his attorneys performed deficiently in advising him not to testify; their advice was based on their concerns about his testimony adversely affecting the jury, plus he did not testify at the post-conviction hearing. Without knowing how he might have testified, the post-conviction court had no basis from which to conclude that he suffered prejudice from following his attorneys' advice and he was not entitled to post-conviction relief. Anglin v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 790 (Tenn. Crim. App. Dec. 19, 2019).

Although trial counsel was deficient in failing to lay the foundation for the testimony of a witness, this deficiency was not, standing on its own, prejudicial as the testimony highlighted one inconsistent statement by another witness in a trial rife with inconsistent statements. Adams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Dec. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 218 (Tenn. Apr. 15, 2020).

Defendant failed to prove that trial counsel provided ineffective assistance by failing to present a cohesive defense theory, investigate, interview defendant and witnesses, explain the sufficiency of the evidence, and advise defendant of the right to testify. Although counsel was deficient failing to object to the trial court's ex parte communication with the jury during deliberations and by failing to request that the jury be brought in for supplemental instructions, defendant did not prove that the issue would have been successful on appeal. Adams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Dec. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 218 (Tenn. Apr. 15, 2020).

Postconviction court did not err by determining that even though trial counsel's performance was deficient for failing to timely file a motion for new trial, petitioner was not prejudiced because of the overwhelming evidence against him at trial. Howard v. State, — S.W.3d —, 2020 Tenn. LEXIS 268 (Tenn. July 16, 2020).

Claim of ineffective assistance of trial counsel failed because counsel was not ineffective for failing to file a motion to suppress the inmate's statement to a law enforcement officer, in which the inmate admitting to shaking the victim, because the inmate voluntarily signed a Miranda waiver and counsel was not ineffective for using an expert that the State impeached because counsel effectively rehabilitated the expert by showing his testimony for the defense was credible despite his conflicting testimony from an earlier case. Iceman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Nov. 14, 2019).

Petitioner failed to show that his counsel was ineffective for pressuring him into taking a plea deal after a motion to suppress was denied because counsel thoroughly investigated the case, obtained a favorable statement from the victim, explained the seriousness of the charges petitioner was facing and his sentencing exposure, and negotiated a favorable plea agreement to a lesser charge that also resolved pending drug charges for which counsel had not been retained to represent petitioner. Stevens v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. Jan. 8, 2020).

With regard to petitioner's claim that counsel told him he could not appeal the trial court's ruling on the motion to suppress, petitioner failed to show that such an appeal would have been granted or that the outcome would have affected his decision to take his case to trial rather than plead guilty. Stevens v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. Jan. 8, 2020).

Counsel effectively cross-examined each of the witnesses, and while petitioner complained that counsel should have asked the witnesses more questions regarding discrepancies or inconsistencies, he had not shown that counsel's performance fell below a reasonable standard and prejudice was not shown; therefore, he was not entitled to post-conviction relief on his claim of ineffective assistance of counsel Winters v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 9, 2020).

Petitioner did not question counsel about his decision not to object during the post-conviction proceedings, which could have been a strategic one, plus he waived the issue by failing to include the appropriate references to the record; he was not entitled to post-conviction relief. Winters v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. Jan. 9, 2020).

Inmate's claim of ineffective assistance failed because the inmate failed to prove prejudice in regard to trial counsel's examination of the victim's cousin since the inmate's involvement in the murder was not established by the cousin alone, the inmate failed to prove prejudice from the joint trial because he did not argue grounds upon which a severance would have been granted, and although counsel should have requested an instruction on the natural and probable consequences rule relative to premeditated first-degree murder, counsel was not deficient as the inmate was acquitted of the charge and thus, suffered no prejudice. Crockett v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 10, 2020).

Petitioner failed to establish deficient performance or prejudice on the part of trial counsel, and petitioner was not entitled to post-conviction relief. Although trial counsel was aware of the victim's different descriptions of a gun used in a robbery prior to trial, trial counsel emphasized that the victim never said that there was not a gun involved in the robbery and that the color of the gun was not relevant. Ridley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 20 (Tenn. Crim. App. Jan. 16, 2020).

It was unclear whether petitioner's defense would have benefited from the testimony of the medical professionals because they were not presented at the evidentiary hearing, and thus he failed to present any proof that the medical record offered any information different than that which was already addressed with the victim at trial or that trial counsels' failure to call the professionals at trial was deficient and prejudicial, and he was not entitled to relief on this claim. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner failed to present any witnesses or photos of the crime scene to show that the evidence would have assisted in his defense, and he was not entitled to relief on this issue due to his failure to present any evidence of prejudice by alleged deficient performance. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner failed to show that his trial counsels failed to obtain and/or communicate a negotiated plea agreement that he would accept; he was adamant about going to trial from the beginning and he was made aware of an offer by the State but ultimately refused it. Petitioner had also failed to present any witness to show that he would have been given the option to plead guilty and continue his service in the military and he was not entitled to post-conviction relief. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

Petitioner failed to show with clear and convincing evidence that his trial counsels' failure to file pretrial motions preventing the State from introducing evidence of prior bad acts was prejudicial; he failed to conduct a Tenn. R. Evid. 404(b) hearing within his evidentiary hearing to prove deficient performance or prejudice, and thus he was not entitled to post-conviction relief. Grimes v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 23 (Tenn. Crim. App. Jan. 16, 2020).

As petitioner failed to show ineffective assistance , he was not entitled to post-conviction relief; counsel testified that he met with petitioner multiple times, both with and without an interpreter, and counsel explained that he was able to effectively communicate with petitioner without an interpreter and petitioner understood English to a greater extent than his actions indicated, such that counsel was not deficient for failing to use an interpreter in all meetings. Vasquez v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. May 28, 2015).

Counsel advised petitioner not to testify due to his admission that he was connected to money seized from the vehicle and there was no indication that counsel's strategy was from a lack of preparation; ineffective assistance was not shown and petitioner was not entitled to post-conviction relief. Vasquez v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. May 28, 2015).

Defendant did not prove that defendant's counsel was ineffective as counsel explained to defendant the ramifications of being a Range II offender, the elements of the offenses, and the evidence which the State of Tennessee intended to use. Counsel also fully advised defendant about the plea agreement, explained to defendant the theory of criminal responsibility, informed defendant of the rights defendant was waiving, and gave sound advise given the evidence for defendant to enter a guilty plea. Chapman v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 30 (Tenn. Crim. App. Jan. 23, 2020).

Petitioner failed to show that his counsel provided ineffective assistance by stating in open court that petitioner would testify before he had made his decision because petitioner did not testify at the post-conviction hearing that he would not have testified if he had been given more time. Petitioner also failed to allege that he would have been acquitted if he had not testified. Jones v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Feb. 3, 2020).

Petitioner failed to show that his counsel provided ineffective assistance during the trial because counsel testified that no basis for a motion to suppress existed, petitioner did not present any proposed character witnesses at the postconviction hearing, petitioner did not specify which mitigating factors should have applied, and counsel was not deficient for advising petitioner to plead guilty to the marijuana and traffic offenses and implying that his refusal to plead guilty to the cocaine charge was based on his innocence. Jones v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Feb. 3, 2020).

Petitioner failed to show that his counsel provided ineffective assistance in his investigation of the case because he visited the scene of the traffic stop, petitioner did not explain why obtaining a written witness list was necessary in light of counsel's verbal discussion of the four anticipated witnesses with the prosecutor, counsel had a valid tactical reason not to order DNA or fingerprint testing as the results could have possibly inculpated petitioner, and petitioner did not present what evidence counsel would have discovered if he had conducted a more thorough investigation. Jones v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Feb. 3, 2020).

Counsel was not ineffective for failing to request withdrawal from petitioner's case; a conflict of interest was not created by petitioner's complaint against counsel and withdrawal was not necessary, plus petitioner had not presented more than a vague allegation of a conflict, and thus he was not entitled to post-conviction relief. Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Evidence did not preponderate against the post-conviction court's finding that counsel made a strategic decision not to pursue the withdrawal of the guilty plea, and counsel's multiple discussions with petitioner dealt with his sentencing exposure if he withdrew his guilty plea and went to trial; counsel's strategy included a decision not to explain the further difficulties involved of withdrawing the plea after sentencing, which was not second guessed on review, and petitioner was not entitled to post-conviction relief. Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Petitioner was not entitled to post-conviction relief and counsel was not ineffective for failing to request withdrawal of petitioner's guilty plea; he communicated to counsel that he wished to go forward with sentencing following the entry of his plea and he never raised his desire to withdraw his plea during the sentencing hearing. As petitioner failed to provide a just reason to withdraw his plea, he failed to show that, but for counsel's inaction, the trial court would have granted a request to withdraw his plea, Talley v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 6, 2020).

Defendant was not entitled to post-conviction relief for ineffective assistance of counsel because defendant failed to establish deficient performance and prejudice relative to counsel's informed decision not to pursue a mental health defense. Walton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 110 (Tenn. Crim. App. Feb. 19, 2020).

Defendant failed to prove that defendant's trial counsel provided ineffective assistance of counsel in failing to impeach a witness with the prior inconsistent statements of the witness denying that the witness could identify the shooter in an incident and in failing to move for a mistrial when the State of Tennessee referenced defendant's exercise of the right to remain silent because counsel's decisions were tactical in nature and entitled to deference. Furthermore, another eyewitness to the shooting identified defendant as the shooter. McEwen v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 19, 2020).

Defendant did not show that counsel was ineffective based on counsel's decision not to seek suppression of the statement which defendant made to the police because, in the situation of counsel presenting self-defense as defendant's primary theory if a mistaken identity theory was not borne out by the testimony of witnesses, parts of defendant's statement aided this theory and thus counsel opted to keep the statement as part of the evidence, so counsel could have used the helpful portions were the self-defense theory to have been presented. Dowdy v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 115 (Tenn. Crim. App. Feb. 19, 2020).

Defendant was not entitled to a new trial because defendant's trial counsel did not provide deficient representation, rendering defendant's pleas involuntary, in that defendant's counsel met numerous times with defendant and conducted extensive pretrial preparations, including obtaining expert evidence. Furthermore, defendant failed to demonstrate any prejudice from counsel's alleged failure to develop a defense strategy. Wade v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Feb. 21, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to object to alleged pervasive prosecutorial misconduct because co-counsel agreed that the defense team made a considered decision to refrain from objecting and explained that he and trial counsel decided to just let the prosecutor go because she was helping petitioner's case. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to make an offer of proof under Tenn. R. Evid. 412 about additional allegations of rape made by the victim and thereby failed to preserve the issue for appeal because counsel testified that he did not know any of the specifics of the additional 50 to 60 allegations and therefore would have been unsuccessful in pursuing an offer of proof, and the defense theory was that none of the sexual abuse took place. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to retain an independent medical expert to rebut the testimony of the State's medical experts and their theory of the case because trial counsel interviewed the State's expert, consulted with a doctor in the area of obstetrics and gynecology, and determined after talking with the doctor that the testimony of State's own expert would support the defense theory that the victim had never had sex. Trial counsel was able to elicit on cross-examination of two of the State's witnesses that there was no evidence of vaginal or anal trauma to the victim. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to interview and/or call character witnesses to testify at trial in a case where credibility of petitioner was crucial to the defense because the evidence presented at the hearing indicated that trial counsel made the decision to forego character witnesses based on trial strategy after assessing the positives and negatives. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to call a witness to testify as a recantation witness because it was a strategic decision not to call the witness as trial counsel felt like the trial was going well and did not want to open the door for the State to question the witness about other matters. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to object to a witness's testimony that allegedly bolstered the credibility of the victim and diminished the credibility of petitioner because it was reasonable trial strategy, as during the witness's testimony, prior to the statement about which petitioner complained, trial counsel had objected at least 29 times, the witness's direct testimony lasted only approximately 40 minutes, and trial counsel explained that there was a balance between objecting too many times and not objecting enough during a witness's testimony. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to poll the jury at the conclusion of the trial under Tenn. R. Crim. P. 31 and T.C.A. § 20-9-508, and therefore he was properly denied postconviction relief, because there was no indication that the jury verdict was not unanimous. Whitehair v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel concerning counsel's failure to file a pretrial motion to suppress the photographic lineup; counsel testified that he wanted to use the witness's inconsistencies to impeach his testimony, there was nothing suggestive about the photographic lineup, and he saw no legal basis to file a suppression motion. Vargas v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 145 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; a detective did not testify as to a statement by co-defendant that petitioner had left the jurisdiction and thus counsel had no reason to file a motion to suppress or to object to a statement that did not exist. Trial counsel was not deficient. Vargas v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 145 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; petitioner failed to show a reasonable probability that, but for counsel's eliciting petitioner's mention of an illegal border crossing, the result of his trial would have been different, especially considering the abundance of evidence of his guilt. The fact that he was forcibly removed from the country and subsequently reentered bolstered the defense theory that he was not fleeing a crime. Vargas v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 145 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner was not entitled to post-conviction relief based on ineffective assistance of counsel; while petitioner claimed counsel failed to investigate a particular bar fight, petitioner offered no evidence that the shooting was related to the fight. Vargas v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 145 (Tenn. Crim. App. Feb. 26, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to object to the admission of alleged inadmissible evidence because counsel also stated that the evidence log and the hammer comported with her theory of the case that because the hammer was in the trailer on the counter it could not have been used in the commission of the robbery, and she did not object because the defense's own witnesses were going to testify that the hammer was on the counter. Crites v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Mar. 9, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to object to the admission of alleged inadmissible evidence, and therefore he was properly denied postconviction relief, because counsel stated she did not object during the detective's testimony because the evidence was going to come in later through different witnesses and she did not want to call attention to the testimony. Crites v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Mar. 9, 2020).

In an action challenging the denial of postconviction relief, the inmate failed to show by clear and convincing evidence that trial counsel was deficient for failing to call three witnesses, as the inmate presented only one witness at the post-conviction hearing, who did not indicate what her testimony would have been at trial, and without the testimony of the other two witnesses, the appellate court could not speculate as to what those witnesses might have said or whether they might have been credible. Tumlin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 23, 2020).

Trial counsel was not ineffective for failing to challenge the verdicts as inconsistent because he did not believe that the issue had merit and the appellate court found that trial counsel's belief was reasonable in that regard. Tumlin v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 23, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to properly advise him whether or not to testify because counsel testified that he explained to petitioner, both pretrial and at trial, his right to testify and his right not to testify, and petitioner signed a waiver of his right to testify as part of the Momon hearing after the State presented its proof. Doss v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 24, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to object to a letter written by petitioner, and therefore he was properly denied postconviction relief, because counsel did object to the letter being introduced and when he learned that his objection was going to be denied, he made a strategic decision to seek redaction of the letter. Doss v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 24, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to obtain an independent cell phone tower expert because counsel felt the issue was covered favorably by the statement from the phone provider which was reasonable trial strategy. Doss v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 24, 2020).

Petitioner failed to show that his counsel was ineffective for failing to raise jury misconduct on appeal because counsel raised the issue of a juror knowing the trial judge in the motion for new trial, counsel interviewed all jurors and determined that the issue was not meritorious, so he decided not to raise the issue on appeal. Doss v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 24, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to regularly meet with petitioner because he failed to submit any evidence to establish how he was prejudiced by the insufficiency of the communications, and therefore he failed to show that he was prejudiced. Doss v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 24, 2020).

Petitioner failed to show his trial counsel was ineffective for waiving the juvenile transfer hearing, and therefore he was properly denied postconviction relief, because counsel testified that he waived the hearing to obtain open discovery and other advantages, that the juvenile judge always approved motions to transfer, and that it would have been fruitless to hold the hearing. In addition, a psychological exam indicated that petitioner was not committable to a psychiatric facility and that he could be transferred to adult court, and therefore the record did not contain evidence that petitioner would have been successful in preventing his case from being transferred if a transfer hearing had been conducted. Siler v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 24, 2020).

Defendant failed to show that trial counsel was ineffective for failing to call three witnesses to testify because trial counsel stated that he spoke with the attorneys for the witnesses and understood that each of them would be cooperating with the State and therefore, he would not call them as favorable witnesses. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Defendant failed to show that he was prejudiced by trial counsel's failure to litigate the motion to suppress GPS evidence because no phone number is specified in the motion and therefore defendant failed to show that, as written, the motion to suppress would have been granted. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Defendant failed to show that he was prejudiced by trial counsel's failure to litigate the motion to suppress the evidence seized during defendant's arrest because counsel testified that many of the motions he filed would need to be amended before they were heard, the trial court gave permission to trial counsel to object to any evidence admitted during the trial, and defendant has failed to show that, as written, the motion to suppress would have been granted. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Defendant failed to show that trial counsel was ineffective for failing to review discovery and discuss trial strategies and defense with him prior to trial because the trial court found that counsel repeatedly tried to contact defendant prior to trial, defendant never made an effort confer or meet with counsel, and defendant insisted on going to trial rather than agreeing with counsel's request for a continuance. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Defendant failed to show that trial counsel was ineffective for failing to discover and disclose the identity of the confidential informant along with her criminal record because the record showed that the witness's identity was disclosed to defendant well in advance of the trial and defendant was not cooperative with trial counsel and had stated that he had gone over discovery a “thousand times.” State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Trial counsel was ineffective for failing to object to erroneous jury instructions for defendant's convictions of conspiracy to sell and conspiracy to deliver heroin in a drug-free zone because the jury was incorrectly instructed on conspiracy to possess with the intent to sell and conspiracy to possess with intent to deliver heroin in a drug-free zone. Defendant was prejudiced because the jury convicted him of offenses that were not charged in the jury instructions, and therefore those convictions were vacated. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Defendant failed to show that he was prejudiced by trial counsel's failure to litigate the motion to sever unrelated charges for failure to appear because the jury acquitted defendant on each count charging Defendant with failure to appear. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020).

Inmate was not entitled to postconviction relief based on his claim that trial counsel was deficient for failing to interview the arresting officer and investigate the case, especially as it related to the weather conditions on the night of the traffic stop because the inmate failed show what further investigation would have revealed. McCullough v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 210 (Tenn. Crim. App. Mar. 31, 2020).

Petitioner failed to establish that counsel provided ineffective assistance in failing to request the sequestration of witnesses because the record showed that trial counsel did request the exclusion of witnesses from the courtroom and the post-conviction court found that the officer remained in the courtroom as the State's representative. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

Petitioner failed to establish that counsel provided ineffective assistance in failing to request an instruction on the lesser included offense of facilitation because the proof did not support an instruction on facilitation, as there was no evidence at trial regarding the existence or role of a third party. Instead, the evidence at trial established that petitioner, and not the confidential informant or a third party, sold the drugs. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

Petitioner failed to establish that counsel provided ineffective assistance regarding the testimony of the witnesses who were not listed on the presentment because the record showed that the defense was aware of the identity of the witnesses and that the testimony at trial explored both the special agent's procedure for weighing the drugs and the confidential informant's addiction and credibility. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

Petitioner failed to show that he was prejudiced by counsel's failure to object to an officer's alleged hearsay testimony regarding a conversation between petitioner and the confidential informant because counsel was able to explore on cross-examination the fact that the officer did not personally hear the conversation and the informant had already testified that petitioner called her and changed the location. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

Petitioner failed to show that he was prejudiced by counsel's failure to object to the indictment on the basis that it was multiplicitous because even if counsel performed deficiently in not requesting merger, any error was corrected on appeal. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

Petitioner failed to establish that counsel provided ineffective assistance in failing to investigate whether petitioner was the person with whom the confidential informant arranged the drug transaction because counsel's investigation confirmed that it was petitioner who called, both the officer and the confidential informant identified petitioner as the person who brought crack cocaine to the meeting spot and exchanged it for cash, and choosing not to challenge petitioner's identity was a sound strategic choice entitled to deference. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

Defendant's claim that trial counsel's performance was deficient because counsel was ill at the start of trial failed because counsel stated he had not felt well two days earlier but felt better by the first day of trial and was merely explaining his raspy voice to the jury. State v. Robinson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 21, 2020).

Defendant's claim that trial counsel's performance was deficient for asserting in his opening statement that the allegations of sexual abuse were devised by the victims' mother to regain custody, when the victim's had no contact with their mother until after they disclosed the abuse, and thus, the statement promised an unprovable defense lacked merit because defendant failed to establish a reasonable probability that, but for trial counsel's assertion, the results of the proceeding would have been different. State v. Robinson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 21, 2020).

Without introducing any proof to show that a motion to suppress would have been successful, petitioner failed to establish that she was prejudiced by trial counsel's failure to file a motion to suppress, and petitioner was not entitled to post-conviction relief. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner failed to show that counsel's performance was deficient and thus petitioner was not entitled to post-conviction relief; the record did not support her claim that counsel failed to adequately communicate with her, as counsel testified that he met with petitioner four times and used her father as an intermediary, meeting with him on seven or eight occasions, and by petitioner's own admission, counsel informed her of the State's plea offer, which she rejected. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner failed to demonstrate that a motion to suppress would have been successful if filed and therefore failed to prove that counsel was deficient; petitioner testified she was confined as a result of her convictions, which were about 10 years old, but she did not state her date of release from confinement or introduce evidence to show that more than 10 years had elapsed between the date of her release and the date of her trial. She was not entitled to post-conviction relief. Smith v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. Apr. 24, 2020).

Trial counsel was not deficient based on an alleged lack of communication because, during the post-conviction hearing, both the inmate and trial counsel testified that they had multiple face-to-face meetings and that the inmate was given his discovery, and the inmate did not attempt to establish any way in which better communication with his trial counsel or better involvement of the inmate in trial preparation could have altered the outcome of the case. Tate v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 24, 2020).

Trial counsel was not deficient based on an alleged failure to advocate, as trial counsel testified that he explained to the inmate that a self-defense strategy was not available because the inmate illegally possessed a handgun and, at the behest of the inmate, he entered information about the drugs that were in the victim's car at the time of the murder into evidence. Tate v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 24, 2020).

Regardless of whether a statement was hearsay or whether counsel's failure to object was deficient, petitioner was not prejudiced by the admission of the statement; he was not prejudiced by the driver's statement that he got the vehicle from petitioner because petitioner, a passenger in the vehicle, admitted to police that he had gotten the vehicle from another individual, who police discovered was the victim. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Evidence did not preponderate against the post-conviction court's conclusions that counsel's failure to interview a witness and present her testimony that petitioner had a different hairstyle than what the victim described did not affect the outcome of petitioner's trial, and thus he was not entitled to relief; the most incriminating proof at trial was not the victim's description of the perpetrator, but rather evidence that petitioner was apprehended in the victim's stolen vehicle. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Photo lineup was not unduly suggestive and was not subject to suppression, and thus deficient performance of counsel was not shown and petitioner was not entitled to post-conviction relief; the court did not discern an obvious difference in the skin tones of the six individuals pictured and the hairstyles of the men were not so grossly dissimilar that a motion to suppress the lineup would have been granted. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner did not establish that counsel's failure to present a prior arrest report or booking photo was deficient or that he was prejudiced; discrepancies in the victim's description of him were insignificant in light of the proof of his guilt at trial, and he was not entitled to relief on the issue. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

In order to determine whether counsel's failure to introduce a photo of petitioner's wrist taken three months after the robbery was deficient, petitioner should have produced the photo at the post-conviction hearing, and because he did not, ineffective assistance was not shown; the court already held that a witness's testimony was not material to the defense and the omission of any scars on the arrest report did not affect the outcome of the case, and the court would not speculate what a photograph of petitioner's wrist would have shown. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Petitioner failed to establish that he was prejudiced by counsel's failure to investigate petitioner's traffic stop and thus he was not entitled to relief; proof that he was given a traffic citation while driving the victim's stolen car two days after the robbery would not have been beneficial to petitioner, plus he failed to present the officer at the post-conviction hearing and the court would not make an exception to the rule that one had to introduce whatever evidence he claimed that counsel should have introduced at trial. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Despite the issue being waived, the evidence also did not preponderate against the post-conviction court's finding that a detective advised petitioner of his Miranda rights and thus petitioner did not show that a motion to suppress his statement likely would have been granted and he was not entitled to relief; petitioner maintained that his testimony was more credible than the detective's testimony on the issue, but questions concerning the credibility of the witnesses were to be resolved by the post-conviction judge. Brent v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 24, 2020).

Postconviction court erred by granting relief on petitioner's claim that he received ineffective assistance of counsel based on trial counsel's having a conflict of interest and his failure to obtain a severance because counsel determined, after consideration of the facts and consultation with petitioner and his girlfriend who was also charged, that a joint defense was in petitioner's best interests and petitioner consented, and moving for a severance or a mistrial would have been contrary to that objective. It was counsel's view that a joint trial benefitted petitioner and his girlfriend because the total denial of culpability of each bolstered the other. Rathbone v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. Apr. 30, 2020).

Postconviction court did not err by denying petitioner relief on his claim that counsel was ineffective for failing to challenge the victim's competency to testify because petitioner did not show that the victim was, at the time of trial, unable to understand and relate facts from his personal knowledge. Rathbone v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. Apr. 30, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to raise objections and failing to effectively cross-examine the State's expert, and therefore he was properly denied postconviction relief, because counsel testified that she lodged several objections to the expert's testimony and cross-examined her about her general research as a pediatric nurse, and further questioning of the expert would have resulted in more testimony that would have been harmful to petitioner's case. Sanders v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. May 12, 2020).

Petitioner failed to show that his trial counsel was ineffective for not utilizing an expert at trial on the subject of false confessions because counsel testified she was not aware of experts in that field and her strategy was to aggressively question the victim's mother about the alleged confession to the abuse. Sanders v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. May 12, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to object to the State's closing argument because counsel chose to object at one point during the State's argument but otherwise made the strategic decision not to interrupt any further. Sanders v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. May 12, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to obtain a transcript of the victim's forensic interview because counsel testified that she reviewed the video recording before trial and could have challenged the victim on her inconsistent statements but counsel knew this would be tricky given the victim's age. Counsel made the tactical decision not to “go after” the victim but instead to aggressively challenge her mother. Sanders v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 336 (Tenn. Crim. App. May 12, 2020).

Post-conviction relief was properly denied because, contrary to the inmate's contention, trial counsel did not concede the inmate's guilt but maintained the inmate's innocence throughout the trial and advanced a theory consistent with that strategy and thus, the inmate failed to show that he was prejudiced by counsel's decision to cross-examine the victim about his claim that the inmate sodomized him and asking the victim to set the scene in an effort to discredit the victim's recollection of the rape, which contained inconsistencies. Thornton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 347 (Tenn. Crim. App. May 15, 2020).

Although counsel's claim that he did not seek suppression of the inmate's confessions to avoid the jury's hearing about women's underwear in his truck was not a sound one, the issue had no bearing on the inmate's forming premeditation before killing the victim and thus, it did not make a difference at trial. Hatchel v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. May 15, 2020).

Petitioner did not receive the ineffective assistance; counsel sought to exclude the firearm by claiming the officers lacked reasonable suspicion to initiate the stop, and counsel litigated the issue of whether the “be on the lookout” had expired before the stop and before the firearm was seen. The trial court credited the investigating officers' testimony that they did not receive notice the BOLO was canceled until after the stop was initiated, and petitioner was not entitled to post-conviction relief. Theus v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 391 (Tenn. Crim. App. June 5, 2020).

Defendant was not entitled to relief on a claim of ineffective assistance of counsel because defendant could not prove that defendant was prejudiced by trial counsel's representation in that, even if a motion to suppress evidence found in defendant's apartment had been granted, there was sufficient evidence to support defendant's aggravated domestic assault by reckless conduct conviction as defendant testified that defendant hit the victim with a metal broomstick, while the victim testified that defendant beat the victim with a heavy metal rod. Parker v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. June 11, 2020).

Petitioner failed to show that his counsel was ineffective for failing to file a motion to disqualify the district attorney's office, and therefore he was properly denied postconviction relief, because the postconviction court stated that counsel did not feel that any issues justified the pursuit of disqualification and found that there was no basis for counsel to have filed such a motion. Lipton v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 410 (Tenn. Crim. App. June 15, 2020).

Petitioner failed to show that counsel was ineffective for failing to suppress petitioner's statement because the court on direct appeal found that the statement was improperly admitted but that the error was harmless. Buford v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 413 (Tenn. Crim. App. June 16, 2020).

Petitioner failed to show that counsel was ineffective for failing to object to the co-defendant's appearance at trial in prison clothes, handcuffs, and shackles because counsel testified that he made a strategic decision not to do so because he wanted the codefendant to look like a liar. Buford v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 413 (Tenn. Crim. App. June 16, 2020).

Petitioner failed to show that his trial counsel was ineffective for failing to investigate the co-defendant's claim that petitioner robbed someone earlier in the evening of the shooting, and therefore he was properly denied postconviction relief, because counsel testified that he chose not to investigate because he was confident that the person petitioner allegedly robbed did not exist and petitioner did not present that person at the post-conviction hearing. Buford v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 413 (Tenn. Crim. App. June 16, 2020).

Petitioner's ineffective assistance claim failed and he was not entitled to post-conviction relief; while counsel's decision to call an officer was unsuccessful, it was a tactical decision, plus the evidence introduced through the officer had already been introduced and the State had evidence that petitioner was in possession of guns that matched those used in the shooting. Thus, the outcome of his trial would not have been different even had counsel not called the officer as a witness. Lagrone v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. June 19, 2020).

Defendant failed to prove that counsel in defendant's trial for rape of a child was ineffective for failing to file a pre-trial motion in limine, failing to object when the State of Tennessee asked the victim about other times when defendant forced the victim to perform sexual acts, asking a witness about defendant's character for truthfulness, failing to object when the State asked the victim about counseling and medication, and failing to argue that defendant was to be permitted to introduce evidence of the victim's prior sexual behavior. Bailey v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 429 (Tenn. Crim. App. June 19, 2020).

Petitioner failed to show that his counsel was ineffective for failing to file motions for change of venue and for recusal of the trial judge because counsel testified he did not believe the motion for change of venue would have been successful since there was no publicity surrounding the crimes and that the motion for recusal would not have been successful because there was no proof of any relationship between the judge and the police officer that would cause impartiality. Johnson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 564 (Tenn. Crim. App. Aug. 14, 2020).

Petitioner failed to show that his counsel was ineffective for failing to adequately investigate other potential witnesses who may have supported his defense because he failed to identify those witnesses or present their testimony. Johnson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 564 (Tenn. Crim. App. Aug. 14, 2020).

Petitioner failed to show that his counsel was ineffective for advising him to proceed with a bench trial rather than a jury trial because petitioner made an informed decision, based on the well-reasoned advice of counsel, to opt for a bench trial, and petitioner's decision to have a bench trial resulted in a not guilty verdict as to especially aggravated kidnapping, which benefitted him. Johnson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 564 (Tenn. Crim. App. Aug. 14, 2020).

Denial of post-conviction relief was appropriate because defendant failed to demonstrate deficiency or prejudice with regard to defendant's claims of ineffective assistance of counsel as defendant failed to establish a reasonable probability that the outcome of the proceeding would have changed if defendant's trial counsel had performed the acts which defendant claimed were necessary for counsel to have performed. Davis v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. Aug. 25, 2020).

Petitioner failed to show that his counsel performed deficiently in assisting him with his guilty plea, and therefore he was properly denied postconviction relief, because the postconviction court found that counsel provided discovery to petitioner, discussed the case with him on several occasions, and informed him of the available options. At the plea colloquy petitioner testified that he discussed the facts of the case with counsel and that counsel answered all of his questions sufficiently, and counsel testified that petitioner was adamant about pleading guilty even after reviewing the discovery. Lucas v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. Sept. 18, 2020).

Petitioner failed to show that his counsel was deficient for failing to seek a second mental evaluation following his stroke, or how the lack of a second mental evaluation was prejudicial to him, because counsel testified that she met with him both before and after the stroke, she noted that although the he was more physically weak following the stroke he demonstrated nothing to indicate a concern regarding his mental competency, and counsel's observations of petitioner were supported by the transcript of the plea colloquy. Wright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Sept. 24, 2020).

Petitioner failed to show by clear and convincing evidence that his counsel failed to investigate his case or failed to discuss possible defenses with him, and therefore he was properly denied postconviction relief on his ineffective assistance of counsel claim, because counsel testified that she reviewed all of the discovery with petitioner and discussed possible defenses, but his admission to sexual activity with the seven-year-old victim left few options for a defense strategy, a mental evaluation determined that petitioner was competent to stand trial and that he appreciated the wrongfulness of his conduct, and counsel negotiated the lowest possible sentence and explored alternative sentencing due to petitioner's age and health issues. Wright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Sept. 24, 2020).

Although defendant claimed that defendant's trial counsel denied defendant of defendant's fundamental right to testify, defendant failed to prove that counsel's performance as to this issue was deficient or prejudicial because, although counsel encouraged defendant not to testify, it was ultimately defendant's decision to voluntarily and personally waive the right to testify. Alvarado v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 638 (Tenn. Crim. App. Sept. 25, 2020).

Inmate's claim that counsel was ineffective for failing to interview material witnesses lacked merit because the inmate failed to prove that but for counsel's failure the inmate would not have entered a plea of guilty. Freemon v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Oct. 13, 2020).

Defendant was not entitled to post-conviction relief because any error by trial counsel in failing to object to the testimony of a witness, who was responsible for monitoring inmate phone calls for the sheriff's office, regarding the recordings of defendant's phone calls from jail on the ground that the State of Tennessee had not qualified the witness as an expert in voice recognition was harmless as defendant readily admitted under cross-examination at trial that it was defendant's voice on the calls. Harris v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Oct. 16, 2020).

Defendant was not entitled to post-conviction relief because defendant did not prove that trial counsel was ineffective by not calling witness as defendant failed to present the proposed witnesses or a mental health expert at the post-conviction hearing. Defendant also failed to establish that trial counsel was ineffective in failing to present a mental health defense as there was no proof at the post-conviction hearing to establish if or how defendant's diagnosis of generalized anxiety disorder impacted the offense. Harris v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Oct. 16, 2020).

Defendant was not entitled to post-conviction relief because defendant failed to prove resulting prejudice from defendant's ineffective assistance of counsel claims based on trial counsel failing to subpoena alibi witnesses to testify, failing to present video evidence to show that defendant was not at the scene of the crime, and failing to challenge an allegedly biased juror. Defendant failed to show prejudice as defendant did not present the alibi witnesses to testify, show the video evidence, or call the juror at the evidentiary hearing. Lee v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 706 (Tenn. Crim. App. Oct. 30, 2020).

Defendant was not entitled to post-conviction relief because defendant failed to prove that defense counsel did not allow defendant to effectively participate in defendant's own defense. Furthermore, counsel was not ineffective for failing to file a motion to sever the child neglect, aggravated child abuse, and felony murder counts against defendant for separate trials because the cases were mandatorily joined as the incidents were part of a single continuing episode of multiple abuse of the victim over the course of days. Demeza v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 707 (Tenn. Crim. App. Oct. 30, 2020).

16. — —Effective Assistance Denied.

Counsel's failure to raise issues regarding defendant's attempted guilty plea in a formal motion supported with legal argument at trial or on appeal constituted ineffective assistance. Goosby v. State, 917 S.W.2d 700, 1995 Tenn. Crim. App. LEXIS 72 (Tenn. Crim. App. 1995).

Defendant charged with rape of a child was denied effective assistance of counsel where trial counsel failed to investigate the facts sufficiently to determine the county in which one alleged rape occurred, and failed to offer evidence to support misstatements made in his opening statement. State v. Taylor, 968 S.W.2d 900, 1997 Tenn. Crim. App. LEXIS 772 (Tenn. Crim. App. 1997).

Defendant was deprived of the effective assistance of counsel when counsel failed to adequately investigate and present evidence regarding whether a person other than defendant had been responsible for soliciting victim's death. State v. Burns, 6 S.W.3d 453, 1999 Tenn. LEXIS 572 (Tenn. 1999), superseded by statute as stated in, State v. Campbell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 860 (Tenn. Crim. App. Oct. 20, 2015), superseded by statute as stated in, State v. Whitehair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2016), superseded by statute as stated in, State v. Harris, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 3, 2016), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Defendant was not required to show actual prejudice in order to prove an ineffective assistance of counsel claim under the U.S. Const. amend. 6, and Tenn. Const. art. I, § 9, because trial counsel's failure to preserve and pursue available post-trial remedies by filing a motion for a new trial was presumptively prejudicial. Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

Defendant may receive a delayed appeal under T.C.A. §§ 40-30-113(a)(1) and (3), and 40-30-111(a), if he was denied effective assistance of counsel in violation of the U.S.Const. amend. 6 or Tenn. Const. art. I, § 9. Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

Defendant had received ineffective assistance of trial counsel under Tenn. Const. art. I, § 9, and U.S. Const. amend. 6, where trial counsel had failed to file a timely motion for a new trial and withdraw to allow defendant to file a pro se motion challenging his first degree murder conviction and that failure had resulted in the waiver of post-trial and appellate remedies and violated counsel's duties under Tenn. R. Crim. P. 37(e). Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

Fact that defendant was entitled to direct review on the issue of the sufficiency of the evidence supporting a first degree murder conviction did not resolve the prejudice prong of the Strickland test, as nothing in T.C.A. § 40-30-113 limits the trial court's discretion to order a delayed direct appeal to circumstances, where there was a complete denial of such an appeal. Wallace v. State, 121 S.W.3d 652, 2003 Tenn. LEXIS 1213 (Tenn. 2003).

Where two defendants were convicted of first degree murder, both counsels' failure to object to the erroneous jury instructions regarding the release eligibility date for a person convicted of first degree murder was deficient and prejudicial, thus denying each defendant of his constitutional right to effective counsel. Vaughn v. State, 202 S.W.3d 106, 2006 Tenn. LEXIS 843 (Tenn. 2006), overruled in part, Brown v. Jordan, 563 S.W.3d 196, 2018 Tenn. LEXIS 728 (Tenn. Dec. 6, 2018).

Counsel was ineffective for failing to ask an expert directly whether petitioner lacked the capacity to premeditate because the law explicitly permitted him to ask the “ultimate question” regarding whether petitioner was capable of forming premeditation at the time of the offense. However, the error did not prejudice petitioner because counsel rebutted the issue of premeditation in other ways and the evidence was sufficient to sustain the convictions. Mobley v. State, 397 S.W.3d 70, 2013 Tenn. LEXIS 200 (Tenn. Feb. 21, 2013).

Trial counsel's deficient performance in failing to adduce expert proof about a faulty trigger mechanism in a rifle was prejudicial to the defense, as the jury was deprived by counsel's deficient performance of substantive evidence concerning a police officer's initial explanations of how the officer came to be shot by the rifle; this proof was critical to the theory of the defense. Kendrick v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. June 27, 2013), rev'd, 454 S.W.3d 450, 2015 Tenn. LEXIS 9 (Tenn. Jan. 16, 2015).

Counsel was ineffective for failing to present psychological mitigating evidence during sentencing, and therefore defendant's death sentence was vacated and the case was remanded for a new capital sentencing hearing, where counsel possessed several decades worth of Tennessee Department of Correction records that habitually characterized defendant as mentally ill, including his diagnosis of schizophrenia. Post-conviction counsel's experts opined that defendant had the reasoning skills of a nine or ten-year-old, they believed that records showed that his brain had atrophied, and described his social and emotional development as stunted. Davidson v. State, 453 S.W.3d 386, 2014 Tenn. LEXIS 918 (Tenn. Nov. 17, 2014), cert. denied, Davidson v. Tennessee, 191 L. Ed. 2d 768, 135 S. Ct. 1897, — U.S. —, 2015 U.S. LEXIS 2976 (U.S. 2015).

Petitioner's counsel was ineffective for advising defendant to plead guilty to employing a weapon during the commission of a dangerous felony under this section because petitioner's underlying felonies of aggravated robbery were not qualified prior felonies, as they were not listed within the statutory definition of dangerous felonies. Bowman v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. Apr. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 530 (Tenn. Aug. 16, 2017).

Inmate showed counsel's advice to accept a plea agreement providing defendant's sentences would run concurrent to a federal sentence was ineffective assistance because (1) such an agreement was unenforceable, as the federal government could not be forced to observe such an agreement, showing deficient performance, and (2) the inmate showed the inmate would not have pled guilty but for the agreement, showing prejudice. Schaeffer v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 898 (Tenn. Crim. App. Oct. 6, 2017).

Witnesses' testimony about the victim's mother's history of erratic and irrational behavior in stressful situations would have been irrelevant and inadmissible at trial, plus the witnesses' testimony would not have been material to petitioner's defense in light of the fact that the mother testified that she did not handle stressful situations well; therefore, petitioner was properly denied post-conviction relief. Lewis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Sept. 7, 2018).

Trial counsel was not deficient for failing to certain witnesses, as their testimony would not have been material to the petitioner's defense, nor was he prejudiced by counsel's failure to introduce certain evidence, and therefore petitioner was not entitled to post-conviction relief. Lewis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Sept. 7, 2018).

Petitioner was properly denied post-conviction relief; testimony about his having driven around after the death of his first child in 1994 would have opened the door for the State to introduce possible evidence of his bad character, and counsel made an informed strategic and tactical decision not to call two witnesses to testify regarding petitioner's actions after the victim's death. Lewis v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. Sept. 7, 2018).

Petitioner claimed that counsel failed to adequately investigate his case or meet with him, but counsel testified that he met with him a few times and discussed various strategies, and counsel further found in his investigation that inconsistencies in the victim's statements were not particularly significant; the postconviction court credited counsel's testimony, and petitioner was not entitled to post-conviction relief on the ground of ineffective assistance of counsel. Chambers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 12, 2018).

Trial counsel investigated petitioner's alleged alibi and was adequately prepared, counsel did not recall petitioner requesting any motions to be filed, plus counsel found no legal basis for a motion to suppress or a motion to challenge the charges, counsel advised petitioner to accept the offer but said the ultimate decision was petitioner's, and petitioner stated at the plea hearing that he was satisfied with counsel's representation, such that petitioner was not entitled to post-conviction relief. Chambers v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 12, 2018).

Issues relating to the stop and subsequent search of petitioner's vehicle were extensively litigated and fully considered on direct appeal and found to be without merit; counsel's performance was not deficient nor had petitioner shown that he was prejudiced by any alleged deficiency in counsel's performance. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

There were several factors that supported a finding of premeditation besides whether the victim was unarmed, including the use of a deadly weapon, repeated blows, calmness after the killing, failing to render aid, the concealment of evidence, and motive; counsel testified that there was no proof that the victim ever displayed a knife, and thus petitioner's claim that counsel was ineffective for failing to challenge the notion that the victim was unarmed failed and he was not entitled to post-conviction relief. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Petitioner claimed counsel failed to effectively explain that if he did not testify, then counsel would be unable to present petitioner's version of events, but this claim was not established and petitioner was not entitled to relief on ineffective assistance grounds; counsel recalled having multiple conversations with petitioner about whether he should testify, it was ultimately petitioner's decision as to whether he testified, plus he admitted that he never asked the trial court if he would be able to tell his side of the story if he did not testify. Hooten v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 757 (Tenn. Crim. App. Oct. 5, 2018).

Petitioner failed to establish that counsel provided deficient performance, and thus he was not entitled to post-conviction relief; trial counsel questioned a witness about the inconsistency regarding whether he reported to the police that he heard a gunshot in a particular recording, which recording was played several times during the trial, and it was up to the jury to determine the witness's credibility and if there was a gunshot. Jones v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 763 (Tenn. Crim. App. Oct. 9, 2018).

Petitioner showed that his counsel was ineffective for failing to timely file a motion for new trial, and therefore the trial court erred by denying him postconviction relief, because the untimely motion resulted in the failure to preserve and pursue petitioner's additional issues on direct appeal, and because the resulting waiver constituted the failure to subject the State to the adversarial appellate process, petitioner was presumptively prejudiced by trial counsel's deficient performance. Howard v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 51 (Tenn. Crim. App. Jan. 24, 2019).

Defendant showed that defendant's trial counsel provided deficient performance because, although the chosen defense was mistaken identity, counsel failed to challenge the sufficiency of the evidence of defendant's especially aggravated robbery and aggravated robbery convictions. Furthermore, defendant showed that counsel's deficient performance resulted in prejudice because a reasonable probability existed that the trial court or the appellate court would have acted in defendant's favor if the sufficiency issues had been raised. Boatwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 10, 2020).

Trial counsel was ineffective in failing to challenge the sufficiency of the evidence to support the criminal littering conviction under T.C.A. § 39-14-504, because the State did not present sufficient evidence that the items littered weighed over five pounds, as required for classification of the conviction as a Class B misdemeanor. McCullough v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 210 (Tenn. Crim. App. Mar. 31, 2020).

17. —Substitution of Counsel.

When an accused seeks to substitute counsel, the accused has the burden of establishing that: (a) the representation being furnished by counsel is ineffective, inadequate, and falls below the range of competency expected of defense counsel in criminal prosecutions; (b) the accused and appointed counsel have become embroiled in an irreconcilable conflict; or (c) there has been a complete breakdown in communications between them. Whether an accused is entitled to a substitution of counsel is a question which addresses itself to the sound discretion of the trial court. State v. Gilmore, 823 S.W.2d 566, 1991 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. 1991).

Trial court did not abuse its discretion by denying defendant's motion for the appointment of substitute counsel because the record showed that counsel was willing to work with defendant to address any conflicts or communication problems that had developed between them, and counsel did not state that he could no longer represent defendant due to defendant's offensive personality; defendant failed to show that he was prejudiced by the trial court's denial of the motion to withdraw. State v. Troglin, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Sept. 14, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 94 (Tenn. Jan. 29, 2007), dismissed, Troglin v. Westbrooks, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 157955 (E.D. Tenn. Nov. 7, 2014).

Court properly denied defendant's motion for substitution of counsel because the parties could not find a date upon which they could all be available, defendant was provided counsel at his trial, and counsel of defendant's choosing was unable to be ready on the trial date and was unavailable on the other dates offered by the court. State v. Watt, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 10, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 437 (Tenn. May 15, 2014).

Trial court did not err in denying defendant's motion to remove appointed counsel, as the record reflected that defendant actively participated in his defense and communicated with trial counsel both before and after the denial of his motion, and defendant presented no evidence regarding his claims that counsel failed to investigate potential witnesses. State v. Marsh, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 865 (Tenn. Crim. App. Sept. 4, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 139 (Tenn. Feb. 19, 2015).

18. —Dual Representation.

The privilege of dual representation should be granted only in exceptional cases when the interests of justice require. Before the trial court may allow a defendant to participate in the defense, the court must determine that the defendant: (1) Is not seeking to disrupt orderly trial procedure; and (2) Has the intelligence, ability and general competence to participate in his own defense. Smith v. State, 757 S.W.2d 14, 1988 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1988).

State established by a preponderance of the evidence that counsel's representation of defendant and co-defendant was an actual conflict of interest, as a major part of the defendant's defense was to implicate co-defendant; the trial court was informed that defendant wanted to be represented by counsel, suggesting that defendant waived his right to conflict-free counsel, even though neither he nor co-defendant executed a written waiver of conflict-free counsel, and defendant was not entitled to relief on this issue. State v. Trent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2017).

19. —Effect on Joinder of Offenses.

Presentment joining felony with misdemeanor was proper in view of Tenn. Const. art. I, § 9 guaranteeing right of counsel and various code provisions changing common law differences in rights of one charged with felony and one charged with misdemeanor. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, 1924 Tenn. LEXIS 94 (1925), overruled in part, State v. Parker, 525 S.W.2d 128, 1975 Tenn. LEXIS 651 (Tenn. 1975).

20. —Waiver.

The right of accused to have the assistance of counsel for his defense imposes upon the trial judge the responsibility of determining whether there is an intelligent and competent waiver by the accused. To discharge that duty, the court must investigate as long and as thoroughly as the circumstances of the case reasonably demand. The determination must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Where indigent defendant rejected counsel appointed by court, because they would not conduct case as he directed, and personally prepared motion for new trial in which right to aid of legal counsel was asserted, his waiver of constitutional right to counsel was intelligently as well as intentionally waived. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Constitutional right to counsel was intentionally and competently waived by indigent defendant who, having full knowledge of right, rejected services of four attorneys appointed by court for his defense. Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5, 1951 Tenn. LEXIS 353 (1951), cert. denied, Cogdell v. Tennessee, 343 U.S. 951, 72 S. Ct. 1044, 96 L. Ed. 1352, 1952 U.S. LEXIS 2117 (1952), overruled, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984), overruled in part, State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Where the right to have counsel present during statements taken in incommunicado police surroundings is waived or the right is not exercised until after incriminating statements are made, the state has a heavy burden to show that such a waiver was freely, voluntarily and knowingly exercised. Lee v. State, 560 S.W.2d 82, 1977 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. 1977).

Merely because a defendant at one time before the trial could (or thought he could) afford a lawyer, his failure to actually retain a lawyer will not operate as a waiver of his right to counsel. State v. Dubrock, 649 S.W.2d 602, 1983 Tenn. Crim. App. LEXIS 383 (Tenn. Crim. App. 1983).

Failure to diligently examine the defendant's background and experience, failure to notify defendant as to the possible extent of any penitentiary sentence, and failure to elaborate fully to defendant why he thought it unwise to waive counsel left the trial judge entirely unaware of the facts essential to an informed decision that the accused had executed a valid waiver of his right to counsel. State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

A criminal defendant's pro se trial performance is irrelevant in determining whether he knowingly and voluntarily waived his right to counsel, and this is true even if a defendant did a commendable job and even the most competent counsel could have fared no better. State v. Northington, 667 S.W.2d 57, 1984 Tenn. LEXIS 923 (Tenn. 1984).

Where a suspect has been fully informed of his rights in accordance with Miranda prior to executing a waiver, but does not invoke any of those rights, including the right to counsel, then the failure of law enforcement officials to inform the suspect that an attorney is present and attempting to see him does not invalidate the waiver. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

Juvenile's waiver of Miranda rights should be analyzed under a totality of the circumstances test that includes consideration of the following factors: (1) Consideration of all circumstances surrounding the interrogation, including the juvenile's age, experience, education, and intelligence; (2) The juvenile's capacity to understand the Miranda warnings and the consequences of the waiver; (3) The juvenile's familiarity with Miranda warnings or the ability to read and write in the language used to give the warnings; (4) Any intoxication; (5) Any mental disease, disorder, or retardation; and (6) The presence of a parent, guardian or interested adult. These factors do not include whether the juvenile was warned that he might be tried as an adult. State v. Callahan, 979 S.W.2d 577, 1998 Tenn. LEXIS 576 (Tenn. 1998).

There is no constitutional right to the appointment of advisory counsel where a defendant has knowingly and intelligently waived the right to counsel. State v. Carruthers, 35 S.W.3d 516, 2000 Tenn. LEXIS 683 (Tenn. 2000), cert. denied, Carruthers v. Tennessee, 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757, 2001 U.S. LEXIS 5032 (2001).

Like other constitutional rights, the right to counsel can be implicitly waived or forfeited if a defendant manipulates, abuses or utilizes the right to delay or disrupt a trial. State v. Carruthers, 35 S.W.3d 516, 2000 Tenn. LEXIS 683 (Tenn. 2000), cert. denied, Carruthers v. Tennessee, 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757, 2001 U.S. LEXIS 5032 (2001).

Judgment was not void on its face and was instead entitled to the presumption of regularity where it contained a blank line where defense counsel was ordinarily listed, and the preprinted waiver of attorney was not signed by defendant. The judgment did not clearly reflect that the defendant was denied the right to counsel, the judgment was at most voidable, rather than void, and a post-conviction petition was the proper method for attacking a voidable judgment. Hickman v. State, 153 S.W.3d 16, 2004 Tenn. LEXIS 828 (Tenn. 2004).

Defendant's right to counsel was not violated by post-presentment interrogations where he was meticulously informed of his right to counsel and of the consequences of failing to exercise that right before he confessed to murder; he not only agreed to speak with an officer, but he also signed an advice and waiver of rights form. State v. Rollins, 188 S.W.3d 553, 2006 Tenn. LEXIS 191 (Tenn. 2006), cert. denied, Rollins v. Tennessee, 549 U.S. 866, 127 S. Ct. 162, 166 L. Ed. 2d 115, 2006 U.S. LEXIS 6933 (2006).

Trial court did not err by denying defendant's motion to suppress his statement to police on the ground that he did not know he was being charged with murder until after he had waived his rights and submitted to questioning, because defendant was informed of his Miranda rights and signed a waiver of his rights, and an investigator testified that defendant did not request an attorney at any time; there was nothing in Tennessee law that required a police officer to inform a suspect that a grand jury had returned an indictment against him before a U.S. Const. amend. 6 waiver was deemed valid. State v. Tolson, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 1019 (Tenn. Crim. App. Dec. 28, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 409 (Tenn. Apr. 16, 2007), dismissed, Tolson v. Howerton, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 124381 (M.D. Tenn. Sept. 8, 2016).

Defendant knowingly and voluntarily waived his Miranda rights, because officers testified that defendant read the advice of rights form aloud and expressed in his own words his understanding that he did not have to make a statement unless he wanted to, and defendant stated that he was not under the influence of drugs and had no mental problems; defendant had completed 11th grade, was able to answer the questions in a rational manner, and gave a coherent account of the crime, his motivation to commit the robbery, and the actions he took following the crime. State v. Threat, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. Aug. 8, 2007), cert. denied, Threat v. Tennessee, 553 U.S. 1008, 128 S. Ct. 2059, 170 L. Ed. 2d 800, 2008 U.S. LEXIS 3564 (2008).

Defendant was not denied his constitutional right to counsel, because defendant never requested an attorney following his arrest or suggested that he wished to speak with one in the future, and defendant waived any right that had attached by signing the waiver after receiving the Miranda warnings. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

Defendant forfeited his right to the assistance of counsel, U.S. Const. amend. 6 and Tenn. Const. art. I, § 9, where defendant verbally threatened his attorney and physically attacked him by pushing his finger into his face; these actions qualified as the extremely serious misconduct sufficient to warrant the trial court's finding. State v. Holmes, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 168 (Tenn. Crim. App. Mar. 2, 2009), rev'd, 302 S.W.3d 831, 2010 Tenn. LEXIS 3 (Tenn. Jan. 12, 2010).

Where defendant moved the trial court seven times for a change of appointed counsel in his murder case, the court did not err by finding that he forfeited his right to counsel under U.S. Const. amend. 6 and Tenn. Const. art. I, § 9. Defendant repeatedly refused to cooperate with counsel, did not establish any basis for complaint against any of his attorneys, and his conduct was egregiously manipulative and abusive of the judicial process. State v. Willis, 301 S.W.3d 644, 2009 Tenn. Crim. App. LEXIS 547 (Tenn. Crim. App. July 6, 2009).

Defendant's conviction for aggravated robbery was proper because the denial of his motion to suppress was warranted. The evidence did not preponderate against the trial court's finding that a sergeant's testimony was credible and based upon that testimony at the suppression hearing and at trial, defendant voluntarily waived his constitutional right against compulsory self-incrimination and right to an attorney. State v. Gray, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 947 (Tenn. Crim. App. Nov. 10, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 348 (Tenn. Apr. 13, 2011).

Defendant's conviction for aggravated assault was reversed because defendant did not waive or forfeit his right to counsel where: (1) The trial court did not properly warn defendant regarding the pitfalls of waiving his right to counsel and proceeding pro se; (2) The trial court did not obtain a written waiver; and (3) The trial court also did not give the general warnings which would serve to support the finding that the defendant, by refusing to cooperate with his attorneys, had implicitly waived his right to counsel. State v. Reece, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 231 (Tenn. Crim. App. Mar. 14, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 524 (Tenn. June 17, 2013), dismissed, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 27 (Tenn. Crim. App. Jan. 14, 2015).

Defendant was not entitled to suppression of statements due to questioning after invocation of the right to counsel, as defendant knew her family had retained an attorney and chose to speak to police. State v. Taylor, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Sept. 30, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 70 (Tenn. Jan. 16, 2015), cert. denied, Taylor v. Tennessee, 192 L. Ed. 2d 158, 135 S. Ct. 2368, — U.S. —, 2015 U.S. LEXIS 3523 (U.S. 2015).

Defendant executed a knowing and intelligent waiver of the right to counsel following the trial court's inquiry, and the trial court was under no obligation to appoint new counsel at the sentencing hearing when defendant expressed a desire to continue his own representation. State v. McMiller, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 513 (Tenn. Crim. App. July 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 769 (Tenn. Oct. 19, 2016).

Trial court's questioning established that defendant's waiver was knowing and voluntary, and he agreed that it was completely his choice to represent himself; the trial court's error in failing to secure the waiver in writing was harmless, as it was clear that defendant knowingly and intelligently waived his right to counsel. State v. Champion, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 642 (Tenn. Oct. 11, 2018).

Trial court erred in requiring defendant to proceed pro se at trial because defendant did not implicitly waive the right to counsel and the trial court erred in determining that defendant forfeited the right to counsel. Given the calamity of errors that permeated the proceedings, remand for a new trial was necessary due to the trial court's errors in the procedure it employed to find that defendant forfeited the right to counsel and in requiring defendant to proceed pro se at trial. State v. Toomes, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Oct. 29, 2020).

21. —Forfeiture.

Defendant was entitled to a new trial because defendant was erroneously denied his fundamental constitutional right to counsel under U.S. Const. amend. VI, Tenn. Const. art. I, § 9, and Tenn. R. Crim. P. 44(a), While defendant's physical attack on his lawyer was serious misconduct, it did not rise to the level of extremely serious misconduct sufficient to warrant an immediate forfeiture. State v. Holmes, 302 S.W.3d 831, 2010 Tenn. LEXIS 3 (Tenn. Jan. 12, 2010).

Defendant forfeited his right to counsel because he made an impermissible attempt to simultaneously represent himself and to have counsel of his choice assist him in that endeavor and because defendant engaged in an intentional pattern of obstinate, dilatory, bullying behavior in an effort to threaten, coerce, and egregiously manipulate the entire judicial system. Defendant repeatedly engaged in systematic, calculated, delaying tactics and also engaged in attacks upon his lawyers and the trial judge in a concerted effort to obtain counsel of his own choosing, to which he was not entitled. State v. Parsons, 437 S.W.3d 457, 2011 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Dec. 15, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 383 (Tenn. May 23, 2012).

Even though the forfeiture of counsel occurred prior to trial, defendant's behavior was sufficiently egregious to support a finding that he forfeited his right to counsel; defendant's threatening and abusive behavior towards his attorneys and their staff seemed to escalate with each new appointment of counsel, and the trial court would have been hard-pressed to appoint a fifth attorney without serious concern for his safety. State v. Carter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Mar. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 478 (Tenn. June 23, 2016).

Trial court erred in requiring defendant to proceed pro se at trial because the trial court erred in determining that defendant forfeited the right to counsel without properly holding an evidentiary hearing. Given the calamity of errors that permeated the proceedings, remand for a new trial was necessary due to the trial court's errors in the procedure that the court employed to find that defendant forfeited the right to counsel and in requiring defendant to proceed pro se at trial. State v. Toomes, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Oct. 29, 2020).

22. —Mentally Retarded Individuals.

Where the evidence overwhelmingly demonstrated that defendant was mentally retarded, functioned on a level equivalent to a child from six to nine years of age, and could not read or write, the trial court erred in determining that defendant voluntarily, knowingly and intelligently waived the rights protected by Tenn. Const. art. I, § 9. State v. Blackstock, 19 S.W.3d 200, 2000 Tenn. LEXIS 168 (Tenn. 2000).

23. —Preliminary Proceedings.

In extreme cases, the accused may waive his right to be present, and consent to proceedings personal to himself and which are purely preliminary, in his absence, when he is in the custody and control of the court. A change of venue may be granted, in his absence, upon his application by petition. It is suggested by the court that a continuance of the case might be made during the enforced absence of the accused. Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), overruled in part, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976); State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

The presence of the accused is not necessary during proceedings which are no part of the trial, but merely preliminary or subsequent thereto. Percer v. State, 118 Tenn. 765, 103 S.W. 780, 1907 Tenn. LEXIS 80 (Tenn. Apr. 1907), overruled, State v. Rogers, 992 S.W.2d 393, 1999 Tenn. LEXIS 276 (Tenn. 1999); Logan v. State, 131 Tenn. 75, 173 S.W. 443, 1914 Tenn. LEXIS 87 (1915).

In a prosecution for murder, the court may, in the absence of the accused, order a special venire to be summoned for the selection of jurors therefrom; for such order is not a part of the trial, but is a mere preliminary step, and the constitutional right of the accused to be present during the entire trial will not be infringed by such order. Logan v. State, 131 Tenn. 75, 173 S.W. 443, 1914 Tenn. LEXIS 87 (1915).

Right of accused to counsel does not depend on whether or not at the time of the interrogation the authorities have secured a formal indictment. Campbell v. State, 215 Tenn. 95, 384 S.W.2d 4, 1964 Tenn. LEXIS 541 (Tenn. Nov. 12, 1964).

Constitutional right to counsel in criminal cases as guaranteed by the state and federal constitutions does not apply to a habeas corpus proceeding which is a civil proceeding. State ex rel. Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256, 1965 Tenn. LEXIS 673 (1965); State ex rel. Wood v. Johnson, 216 Tenn. 531, 393 S.W.2d 135, 1965 Tenn. LEXIS 662 (1965).

Where it is shown to the trial court that the statements made were the product of the defendant's own free will, the confession may be properly admitted, although not previously advised of his right to counsel, it being for the trial court to determine whether or not the defendant has been fundamentally prejudiced in his defense by making statements to the officers without such advice. Harris v. State, 217 Tenn. 582, 399 S.W.2d 749, 1966 Tenn. LEXIS 611 (1966).

Although a preliminary hearing is not constitutionally required in a criminal prosecution in Tennessee, such a hearing is required by § 40-1131 (repealed) and is a critical stage in the proceeding and defendant is entitled to the effective assistance of counsel at such hearing, which he did not receive where he was represented by court appointed counsel, who was neither qualified by training nor licensed in the state of Tennessee to practice law. McKeldin v. State, 516 S.W.2d 82, 1974 Tenn. LEXIS 443 (Tenn. 1974).

A defendant has no right to counsel during police investigation or surveillance prior to the initiation of adversary judicial proceedings. Clariday v. State, 552 S.W.2d 759, 1976 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1976).

An accused is not entitled to counsel at a preindictment lineup. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

Under U.S. Const. amend. 6 and under Tenn. Const. art. I, § 9, a person accused of crime is entitled to the guiding hand of counsel at any post-arrest lineup, showup, walk-in or other type identification parade or process wherein he is required to submit to corporeal identification, absent a knowing, voluntary and effective written waiver. State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980), cert. denied, Mitchell v. Tennessee, 449 U.S. 845, 101 S. Ct. 128, 66 L. Ed. 2d 53, 1980 U.S. LEXIS 2905 (1980).

When the restrictions in Tenn. R. Crim. P. 12.2 regarding court ordered mental examinations are properly followed, the proceedings do not violate the right to counsel. State v. Martin, 950 S.W.2d 20, 1997 Tenn. LEXIS 315 (Tenn. 1997).

U.S. Const. amend. 6 does not entitle a defendant to participate, through counsel, in the determination of the existence of probable cause for the issuance of a warrant to seize a sample of defendant's blood. State v. Blye, 130 S.W.3d 776, 2004 Tenn. LEXIS 131 (Tenn. 2004), cert. denied, Blye v. Tennessee, 125 S. Ct. 289, 160 L. Ed. 2d 74, 543 U.S. 845, 2004 U.S. LEXIS 6027 (U.S. 2004).

24. —Raising Issue of Defendant's Competency.

When confronted with a client who has previously been diagnosed with schizophrenia and bipolar disorder, who was taking antipsychotic drugs until at least five months prior to trial, who claims powers of mind control on two occasions prior to and during trial, and who throws semen, feces, and urine at guards and fellow inmates, counsel should request a psychological examination before conforming the defense strategy to the client's dictates. Wilcoxson v. State, 22 S.W.3d 289, 1999 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. 1999).

25. —Court-ordered Mental Examination.

A defendant does not have the constitutional right to the physical presence of counsel during a court-ordered mental examination. State v. Huskey, 964 S.W.2d 892, 1998 Tenn. LEXIS 119 (Tenn. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 287 (Tenn. May 18, 1998), rehearing denied, 969 S.W.2d 917, 1998 Tenn. LEXIS 358 (Tenn. 1998), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 127 (Tenn. Feb. 18, 2003).

Compelling a defendant who has raised an insanity defense to submit to a court-ordered psychiatric examination to rebut evidence of a mental condition introduced by the defendant does not violate the defendant's privilege against self-incrimination. State v. Huskey, 964 S.W.2d 892, 1998 Tenn. LEXIS 119 (Tenn. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. LEXIS 287 (Tenn. May 18, 1998), rehearing denied, 969 S.W.2d 917, 1998 Tenn. LEXIS 358 (Tenn. 1998), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 127 (Tenn. Feb. 18, 2003).

26. —Presence During Trial.

The constitutional guarantee to the accused in all criminal prosecutions of “the right to be heard by himself” includes the right to be present at every stage of the trial, and in all felony cases affecting his life or liberty, the defendant must be present during the entire trial, and when the verdict is given. State v. France, 1 Tenn. 434, 1809 Tenn. LEXIS 24 (1809); State v. Jones, 10 Tenn. 22, 1820 Tenn. LEXIS 4 (1820); Clark v. State, 23 Tenn. 254, 1843 Tenn. LEXIS 72 (1843); Andrews v. State, 34 Tenn. 550, 1855 Tenn. LEXIS 96 (1855); Hutchinson v. State, 43 Tenn. 95, 1866 Tenn. LEXIS 20 (1866); Witt v. State, 45 Tenn. 11, 1867 Tenn. LEXIS 86 (1867); Stewart v. State, 47 Tenn. 338, 1870 Tenn. LEXIS 152 (1870); Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882); Richards v. State, 91 Tenn. 723, 20 S.W. 533, 1892 Tenn. LEXIS 42 (1892); Percer v. State, 118 Tenn. 765, 103 S.W. 780, 1907 Tenn. LEXIS 80 (1907); Logan v. State, 131 Tenn. 75, 173 S.W. 443, 1914 Tenn. LEXIS 87 (1915).

The presence of the counsel of the accused alone will not suffice, as it does not meet either the letter or spirit of this constitutional provision and requirement. Witt v. State, 45 Tenn. 11, 1867 Tenn. LEXIS 86 (1867).

After the case has been given to the jury, the accused cannot waive his presence. Hopkins v. State, 78 Tenn. 204, 1882 Tenn. LEXIS 164 (1882), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), overruled in part, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976).

Accused's constitutional right to be present at all times is not infringed by order of special venire to be summoned for selection of jurors therefrom in murder prosecution, in accused's absence, the order being a mere preliminary step and not a part of the trial. Logan v. State, 131 Tenn. 75, 173 S.W. 443, 1914 Tenn. LEXIS 87 (1915).

In a felony case, the accused must be present during his whole trial in the circuit court, criminal court, or other court of original jurisdiction. Vowell v. State, 132 Tenn. 349, 178 S.W. 768, 1915 Tenn. LEXIS 28 (1915).

It is not in the power of accused, charged with commission of a felony, to waive, either by himself or by his counsel, the right to be personally present during the trial; but accused has no right to be in open court or in the presence of the judge when giving a bail bond for appearance at the trial, the bond not constituting a part of the trial. Ewing v. United States, 240 F. 241, 1917 U.S. App. LEXIS 2346 (6th Cir. 1917).

Where a turnpike corporation was indicted for misdemeanor of failure to repair a turnpike, its presence in court was not necessary to the jurisdiction of the court where only a fine was assessed against it and no corporal punishment could have been administered because it was a corporation, and Tenn. Const. art. I, § 9 had no application, as its only application must be held to be to the appearance of the defendant in the grade of felony. Lebanon & Big Spring Tpk. Co. v. State, 141 Tenn. 675, 214 S.W. 819, 1919 Tenn. LEXIS 18 (1919). See Gray v. State, 158 Tenn. 370, 13 S.W.2d 793, 1928 Tenn. LEXIS 164 (1928).

Tenn. Const. art. I, § 9 does not extend to cases where the punishment is limited, as under the so called small offense law or to indictments against corporations, the physical appearance of which is impossible; but where both fine and imprisonment may be imposed, defendant has a right to be present with counsel. Gray v. State, 158 Tenn. 370, 13 S.W.2d 793, 1928 Tenn. LEXIS 164 (1928). But see Ready v. State, 155 Tenn. 15, 290 S.W. 28, 1926 Tenn. LEXIS 13 (1927).

The right to be heard by self and counsel requires the presence of accused during the entire trial; and where jury viewed scene of crime in absence of one being prosecuted for robbery, and officer and bystander pointed out locations, the case will be remanded for a new trial. Watson v. State, 166 Tenn. 400, 61 S.W.2d 476, 1932 Tenn. LEXIS 148 (1932).

Presence at the trial, only means that defendant shall be present in court from beginning of the empaneling of the jury until the reception of the verdict and the discharge of the jury, and defendant's constitutional rights were not denied, where the judge denied defendant's motion to recuse himself on the grounds of prejudice in defendant's absence, since such ruling was preliminary to trial. Omohundro v. State, 172 Tenn. 48, 109 S.W.2d 1159, 1936 Tenn. LEXIS 1 (1937).

Where defendant complained of illness and refused to leave his jail cell to attend his trial, it was harmless error beyond a reasonable doubt for the trial court to conduct any of defendant's trial in his absence where the total evidence of defendant's guilt was completely convincing, where no evidence damaging to defendant was introduced in his absence, and where defendant's counsel were present and found no need for cross-examination of witnesses. Stone v. State, 521 S.W.2d 597, 1974 Tenn. Crim. App. LEXIS 255 (Tenn. Ct. App. 1974).

A defendant's constitutional right to be present cannot be presumed from a “silent” record and every reasonable presumption is against such a waiver. Wilkins v. State, 577 S.W.2d 213, 1978 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1978).

While the trial court was hasty in continuing the trial in defendant's absence in the afternoon without giving defense counsel or the state ample time to locate the defendant, the facts that defendant was present when the court adjourned for lunch and ordered the resumption of the trial at 1:30; that counsel informed defendant to be back at 1:30; that defendant told counsel he was going to talk to witnesses, implying an awareness that the trial was going to continue; and most importantly, that no issue of the voluntariness of his absence was ever raised at the trial or the motion for new trial, supported a theory of voluntary absence with an accompanying waiver of right to be present. Wilkins v. State, 577 S.W.2d 213, 1978 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1978).

Defendant's fundamental right to attend own trial was violated when the trial court prevented defendant from attending any portion of the trial. State v. Ballard, 21 S.W.3d 258, 2000 Tenn. Crim. App. LEXIS 177 (Tenn. Crim. App. 2000).

27. —Rights on Review.

The phrase “in all criminal prosecutions,” used in Tenn. Const. art. I, § 9, giving the accused the right to be heard by himself and counsel, applies only to the trial prosecuted by the state in trial court, and does not apply to a review on appeal or writ of error, which is a proceeding brought by the accused himself. Vowell v. State, 132 Tenn. 349, 178 S.W. 768, 1915 Tenn. LEXIS 28 (1915).

Neither the constitution nor the statutes require that the trial judge appoint an attorney to prepare a bill of exceptions and prosecute an appeal to the supreme court after an accused has been convicted. State ex rel. Fisher v. Bomar, 201 Tenn. 579, 300 S.W.2d 927, 1957 Tenn. LEXIS 337 (1957).

Where the failure of the state to provide an indigent defendant with a timely bill of exceptions operated to deny him a meaningful appellate review of his criminal trial he was denied his constitutional rights under the United States and Tennessee constitutions. State v. Wilson, 530 S.W.2d 766, 1975 Tenn. LEXIS 569 (Tenn. 1975).

28. —Self-Representation.

The constitutional right to self-representation is not applicable to post-conviction proceedings. Cole v. State, 798 S.W.2d 261, 1990 Tenn. Crim. App. LEXIS 244 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 349 (Tenn. Oct. 1, 1990).

There are three essential prerequisites which the accused must satisfy before his constitutional right of self-representation becomes absolute: first, the accused must assert his right to self-representation timely; second, the accused must knowingly and intelligently waive his constitutional right to counsel; and third, the accused's request must be clear and unequivocal. Cole v. State, 798 S.W.2d 261, 1990 Tenn. Crim. App. LEXIS 244 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 349 (Tenn. Oct. 1, 1990).

Just as there is the right to the assistance of counsel at trial, there is the alternative right to self-representation. State v. Gillespie, 898 S.W.2d 738, 1994 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. 1994).

State v. Gillespie, 898 S.W.2d 738, 1994 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. 1994).

An accused who has intelligently and voluntarily waived the right to counsel and chosen to proceed pro se is not constitutionally entitled to the assistance of advisory counsel, and the appointment of such advisory counsel is a matter entirely within the discretion of the trial court, whose decision on this issue should not be overturned in the absence of a clear abuse of that discretion. State v. Small, 988 S.W.2d 671, 1999 Tenn. LEXIS 225 (Tenn. 1999), cert. denied, Small v. Tennessee (1999) 528 U.S. 891, 120 S. Ct. 216, 145 L. Ed. 2d 181, 1999 U.S. LEXIS 6092.

Precautionary measures should be employed when a pro se defendant and a represented codefendant are tried jointly. State v. Carruthers, 35 S.W.3d 516, 2000 Tenn. LEXIS 683 (Tenn. 2000), cert. denied, Carruthers v. Tennessee, 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757, 2001 U.S. LEXIS 5032 (2001).

State prisoner who pursued a medical malpractice claim pro se had no constitutional right to appointed counsel. Hessmer v. Miranda, 138 S.W.3d 241, 2003 Tenn. App. LEXIS 347 (Tenn. Ct. App. 2003).

Trial court did not err in allowing defendant to represent himself as: (1) The trial court conducted a lengthy hearing to ascertain whether the defendant was competent to represent himself at trial; (2) The trial court informed the defendant of his right to counsel and warned against the perils of proceeding pro se; (3) Defendant was offered the services of his previous counsel, as “elbow” counsel; and (4) Defendant advised the court he had taken paralegal courses and was aware of the rules of evidence and procedure. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

Defendant was not permitted self-representation where the trial court found that defendant had not made a knowing, voluntary waiver of counsel; there was a lack of a knowing and voluntary waiver and an implicit waiver by defendant's actions to delay or disrupt the trial proceedings. State v. Davis, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 941 (Tenn. Crim. App. Oct. 25, 2004), aff'd, State v. Davis, 185 S.W.3d 338, 2006 Tenn. LEXIS 189 (Tenn. 2006).

Defendant's right to self-representation was not violated because defendant did not clearly and unequivocally assert his right to proceed pro se where defendant repeatedly advised the trial court that he would represent himself unless he was able to retain the services of a private attorney and informed the trial court that he did not wish to proceed with one of his two appointed attorneys but was financially unable to retain a different attorney. Defendant's colloquy with the trial court did not evidence a clear request to represent himself, and in fact, defendant went to trial less than one month later represented by lead counsel and co-counsel, did not object to counsels' representation, and did not reassert his request to proceed pro se. State v. Hester, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. Feb. 5, 2009), aff'd, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010).

Defendant's convictions for first-degree murder, attempted first-degree murder, and aggravated arson were proper because trial court did not commit constitutional error by denying his request to represent himself after the trial court declined to reinstate his lead counsel. Defendant was using his request to represent himself as a means to challenge the trial court's ruling that another attorney would be his lead counsel; defendant did not have any genuine interest in exercising his right to self-representation and was instead requesting to represent himself as a manipulative and retaliatory tactic; and defendant's former lead counsel eventually replaced the other attorney as defendant's lead counsel without any objection or further requests for self-representation by defendant. State v. Hester, 324 S.W.3d 1, 2010 Tenn. LEXIS 897 (Tenn. Oct. 5, 2010), cert. denied, Hester v. Tennessee, 179 L. Ed. 2d 896, 563 U.S. 939, 131 S. Ct. 2096, 2011 U.S. LEXIS 3140 (U.S. 2011), superseded by statute as stated in, State v. Wilson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 126 (Tenn. Crim. App. Feb. 13, 2013).

Trial court did not improperly deny defendant his right to self-representation where it determined that he could not handle his own representation because he was too emotional about the case and disruptive to the legal process. The record showed that defendant repeatedly accused a witness of lying after being admonished by the trial court and was unable to accept the trial court's ruling and move forward with the case. State v. Wilson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 797 (Tenn. Crim. App. Sept. 30, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 78 (Tenn. Jan. 25, 2016).

Trial court, confronted with defendant's timely and unequivocal request to represent himself, erred by summarily denying the request rather than determining whether the attempted waiver of the right to counsel was knowing and voluntary, and defendant's subsequent request to either change attorneys or represent himself did not cure this error. State v. Alderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Sept. 29, 2016).

Even if defendant's request for self-representation was clear and unequivocal, the request was untimely, as he did not make it until after all of the proof had been submitted and both parties had rested; defendant had previously waived his right to testify and acknowledged that he made the decision even though defense counsel advised him otherwise, and thus the trial court properly found that defendant's request to represent himself was untimely. State v. Jenkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. Apr. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 622 (Tenn. Sept. 20, 2017).

Trial court did not err by allowing defendant to proceed pro se at trial after he was thoroughly questioned about his knowledge and experience with the legal system and informed of the folly in self-representation but still stated a desire to represent himself. State v. Jones, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 853 (Tenn. Crim. App. Sept. 18, 2017).

Trial court erred in allowing defendant to represent himself at trial because, while defendant stated in open court, “I represent myself,” the trial court did not properly advise him in open court that he was entitled to the assistance of counsel at every stage of the proceedings, determine whether defendant's waiver was knowing and intelligent, obtain the required written waiver, did not present defendant with an ultimatum regarding his behavior that would result in the loss of the right to counsel, and did not hold an evidentiary hearing on the issue of whether defendant's behavior—intentionally manipulating the justice system—was such that he forfeited the right to counsel. Consequently, there was no consideration of the factors relevant to forfeiture in the record. State v. Pearsons, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Aug. 22, 2018).

Trial court did not abuse its discretion by denying defendant's attempt to waive his right to counsel and demand to proceed pro se because the request was not timely, as defendant's demand did not occur until after the close of the State's case-in-chief, the trial court found that defendant's focus was on delaying and disrupting the process, and defendant indicated he needed help understanding the rules of court. State v. Greer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 565 (Tenn. Crim. App. Aug. 17, 2020).

29. Right to Demand Nature and Cause of Accusation.

Constitutional guaranties of accused as to indictments are only that indictment shall state nature and cause of accusation. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

An accused cannot be called on to answer a charge greater than that alleged in the indictment. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 1956 Tenn. LEXIS 433 (1956), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

Under Tenn. Const. art. I, § 9 the accused has the right to be informed with some degree of certainty of the crime of which he stands accused but the state is not obligated to furnish the defendant with its proof. Bosley v. State, 218 Tenn. 134, 401 S.W.2d 770, 1966 Tenn. LEXIS 555 (1966).

When the state presents proof reflecting the existence of more than one offense of the same type and the indictment is not specific as to the offense for which the accused is being tried, an election is required to: (1) Enable the defendant to prepare for and make his defense to the specific charge; (2) Protect him from double jeopardy by individualization of the issue; and (3) Insure that the jury's verdict may not be a matter of choice between offenses with some jurors convicting on one offense and others on another. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

Defendant's conviction for first-degree felony murder committed during the perpetration of robbery was proper because the indictment gave him sufficient notice of the charged offense, including felony murder committed during the perpetration of attempted robbery. The indictment specifically referred to felony murder and the statute allegedly violated and the indictment informed defendant as to nature of the charges against him so as to enable the entry of proper judgments and to protect against double jeopardy. State v. Echols, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 14, 2011), aff'd, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

State substantially complied with the requirements for an arraignment because, although an arraignment was not held, defendant was on notice of the charges he faced where the information provided that he was being charged with attempted rape, stated the facts supporting the allegation, and the name of the victim. State v. Cross, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 4, 2015).

In a case where defendant pled guilty to leaving the scene of an accident involving a death, the trial court erred in denying judicial diversion as the trial court erred in considering that defendant should have been charged with vehicular homicide because it violated defendant's constitutional due process right to notice of the charges against which she would be called to defend herself; it violated the separation of powers by questioning the charging decision of the prosecutor; and it did not affect any of the common law factors for determining whether judicial diversion was appropriate. State v. Gobble, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. Aug. 12, 2015).

In a prosecution of defendant for driving under the influence, there was no constructive amendment of the indictment and no fatal variance between the indictment and the proof adduced at trial. State v. Santelli, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. June 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 765 (Tenn. Oct. 20, 2016).

Because the blood alcohol concentration (BAC) evidence was suppressed, the trial court did not err by dismissing the count alleging DUI per se; however, the trial court erred by dismissing the indictment in its entirety because the grand jury could consider the suppressed evidence showing defendant's BAC level as the grand jury could consider evidence obtained in violation of an accused's constitutional rights; the State did not knowingly present false testimony; the officer's and the magistrate's testimony was not unfairly prejudicial to defendant in relation to the remaining indictment counts; and, even without the blood analysis results, the evidence was sufficient to permit the State to continue its prosecution of the remaining charges. State v. Collier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 221 (Tenn. Apr. 18, 2018).

30. —Function of General Assembly.

This constitutional provision, guaranteeing to the accused the right “to demand the nature and cause of the accusation against him,” leaves it to the general assembly to prescribe what shall constitute the accusation, and in what form the crime shall be charged. Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859); State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913).

General Assembly may prescribe form in which crimes shall be charged in statute; and where general assembly has sanctioned omission of averments in indictment, necessary at common law to its validity, indictment under the statute will be treated as containing such averments by operation of law. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

It is a matter for the general assembly's determination as to what shall constitute the accusation, and in what form the crime shall be charged. State v. Smith, 612 S.W.2d 493, 1980 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1980).

31. —What Indictment or Presentment Must Contain.

The indictment must state all the facts and circumstances that constitute the offense, with such certainty and precision that the defendant may know whether they constitute an indictable offense or not, in order that he may know how to plead, and how to prepare his defense, and that there should be no doubt of the judgment that should be given, if the defendant should be convicted. Peek v. State, 21 Tenn. 78, 1840 Tenn. LEXIS 34 (1840); Whiteside v. State, 44 Tenn. 175, 1867 Tenn. LEXIS 28 (1867), overruled on other grounds, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976); State v. Tarver, 79 Tenn. 658, 1883 Tenn. LEXIS 121 (1883); Davis v. State, 43 Tenn. 77, 1866 Tenn. LEXIS 17 (1866); Jones v. State, 84 Tenn. 466, 1886 Tenn. LEXIS 127 (1886).

The indictment must state and charge the facts which constitute the offense, and not simply the legal result or mere conclusions of law. Fletcher v. State, 25 Tenn. 249, 1845 Tenn. LEXIS 72 (1845); Pearce v. State, 33 Tenn. 63, 1853 Tenn. LEXIS 6 (1853); Hall v. State, 43 Tenn. 125, 1866 Tenn. LEXIS 27 (1866); Daniel v. State, 50 Tenn. 257, 1871 Tenn. LEXIS 90 (1871); Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); Jones v. State, 84 Tenn. 466, 1886 Tenn. LEXIS 127 (1886).

An indictment for illegal voting must charge the precise facts which disqualify the voter, and a charge that defendant was not then and there a qualified voter in the county is insufficient. Pearce v. State, 33 Tenn. 63, 1853 Tenn. LEXIS 6 (1853); State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905).

The indictment must state facts, and not conclusions of law, and a charge that defendant assumed to be a justice of the peace, without being a “legal qualified” justice, is insufficient. Daniel v. State, 50 Tenn. 257, 1871 Tenn. LEXIS 90 (1871); State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905).

The indictment must charge crime with certainty and precision, and must contain a complete description of such facts and circumstances as will constitute crime; and a mere statement of a legal result or conclusion of law is insufficient. Pearce v. State, 33 Tenn. 63, 1853 Tenn. LEXIS 6 (1853); Daniel v. State, 50 Tenn. 257, 1871 Tenn. LEXIS 90 (1871); Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); United States v. Reese, 92 U.S. 214, 23 L. Ed. 563, 1875 U.S. LEXIS 1751 (1875); State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

What shall constitute the “accusation” and in what form the crime shall be charged must be left to the prescription of legislature. Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859); State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913).

An indictment need not allege where the offense was committed. Jordan v. State, 156 Tenn. 509, 3 S.W.2d 159, 1927 Tenn. LEXIS 146 (1928).

Where not otherwise provided by statute, indictment must contain complete description of facts and circumstances necessary to constitute offense, and must state the facts with such certainty as to enable the court to pronounce judgment in case of conviction. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

The indictment must state such facts and circumstances as will constitute the crime and not merely a legal result or conclusion. Warden v. State, 214 Tenn. 391, 381 S.W.2d 244, 1964 Tenn. LEXIS 488 (1964).

Claim that indictment in a previous conviction used as the basis for a habitual criminal charge was not a true bill and was not signed by the foreman of the grand jury did not constitute constitutional error and was not grounds for post-conviction relief on the theory that the conviction as a habitual criminal was void. State v. Wright, 225 Tenn. 652, 475 S.W.2d 546, 1972 Tenn. LEXIS 404 (1972).

The test for the sufficiency of an indictment is whether it contains the elements of the offense intended to be charged; sufficiently apprises the defendant of what he must be prepared to meet; and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. State v. Smith, 612 S.W.2d 493, 1980 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1980).

There is no requirement that a joint indictment set forth the specific acts committed by each appellant. State v. Smith, 612 S.W.2d 493, 1980 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. 1980).

An indictment or presentment must provide a defendant with notice of the offense charged, provide the court with an adequate ground upon which a proper judgment may be entered, and provide the defendant with protection against double jeopardy. State v. Byrd, 820 S.W.2d 739, 1991 Tenn. LEXIS 455 (Tenn. 1991).

In order to comply with the constitutional guarantee that an accused be informed of the nature and case of the accusation, an indictment must provide: (1) Notice to the accused of the offense charged; (2) The court with an adequate ground upon which a proper judgment may be entered; and (3) The defendant with protection against double jeopardy. Wyatt v. State, 24 S.W.3d 319, 2000 Tenn. LEXIS 431 (Tenn. 2000).

Indictment against defendant was not constitutionally defective due to the fact that it failed to charge the aggravating circumstances relied on by the state to sentence him to death, because the Tennessee supreme court had consistently rejected the argument that aggravating circumstances had to be pled in the indictment. State v. Berry, 141 S.W.3d 549, 2004 Tenn. LEXIS 659 (Tenn. 2004), writ denied, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 23, 2016).

Indictment of defendant for first degree murder was sufficient under U.S. Const. amend. 6 and Tenn. Const. art. I, § 9, where it named defendant and informed him that he was charged with first degree murder. More specifically, it charged premeditated murder of the victim on a date certain in violation of the specified statute. State v. Copeland, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 916 (Tenn. Crim. App. Aug. 22, 2005), aff'd in part, rev'd in part, 226 S.W.3d 287, 2007 Tenn. LEXIS 502 (Tenn. May 23, 2007).

Defendant's convictions for animal cruelty were appropriate in part because the presentment was not insufficient since each count of the presentment identified the individual animal by species, breed, and cage or tag number, provided the date and location of the offense, referenced the applicable statute, and set out the particular subsection of the statute under which the defendant was being charged; that was sufficient to achieve the overriding purpose of providing notice to defendant of the charges against her. State v. Siliski, 238 S.W.3d 338, 2007 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 15, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 878 (Tenn. Sept. 17, 2007).

Superseding indictment in defendant's proper name provides the requisite notice of the charge; the fact that an arrest warrant does not refer to a defendant by name does not implicate the notice provisions of the Sixth Amendment or Tenn. Const. art. I, § 9 because protections of the Sixth Amendment attach at arraignment or when a defendant first appears before a judicial officer and is informed of the charge in the complaint and of various rights in further proceedings State v. Burdick, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Language of the indictment sufficiently apprised the inmate of the charges he faced, as it referenced the appropriate statute, stated the date of the offense, stated the name of the victim of the offense, and alleged the essential elements of the offense, including the appropriate mental state. Avila-Salazar v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 20, 2015).

Although count 3 of the indictment did not specify the predicate felony for the offense of employing a firearm during the commission of a dangerous felony, because the indictment alleged only one other offense, that of attempted first degree murder in count 2, that qualified as a dangerous felony under the employing a firearm during the commission of a dangerous felony, the State's failure to specify the predicate felony did not void the indictment. State v. Swift, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 829 (Tenn. Oct. 24, 2016).

Presentment was sufficient, as it tracked the language of the statute, included a specific reference to the statute defining aggravated statutory rape, and stated the county where and the date upon which the offense allegedly occurred, and exclusion of the term “recklessly” was not a fatal defect. State v. Whitaker, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Sept. 4, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 19 (Tenn. Jan. 15, 2016).

Defendant's indictment for aggravated assault was sufficient to permit defendant to be retried on that charge because the indictment provided to defendant sufficient notice of his charge for aggravated assault and provided to the trial court an adequate basis to enter a proper judgment; the indictment's language stated that defendant did threaten to commit domestic assault or assault against the victim, and the indictment referenced the applicable statute. State v. Smith, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Indictment was sufficient, even though it failed to name the underlying felony for the charge that defendant employed a firearm during the commission of a dangerous felony, because he knew that the possible underlying dangerous felonies were to be tried in the same trial as the firearm charge and therefore was not surprised. State v. Dobson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 927 (Tenn. Crim. App. Dec. 13, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 140 (Tenn. Feb. 24, 2017).

Omission of co-defendant's name when the prosecutor read the indictment to the jury was not an amendment of the indictment as argued by defendant because the indictment provided the accused with the nature and cause of the accusation being made against him; enabled the accused to know the accusation to which an answer was required; furnished the court with an adequate basis for the entry of a proper judgment; and protected the accused from double jeopardy; additionally, during the trial, the jury was told on more than one occasion that co-defendant was also charged in the case and that the charges against him were dismissed. State v. Sexton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. Aug. 17, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 47 (Tenn. Jan. 18, 2018).

Presentment was not defective because it clearly referenced the correct code section for the offense of aggravated sexual battery, contained sufficient facts to provide defendant with notice of the subsection of the statute under which he was being charged, and furnished the trial court with an adequate basis for entry of a proper judgment and to protect defendant from a subsequent prosecution for the same offense; it was obvious that he was well aware of the statutory elements of the crime with which he was charged based on his defense at trial and his own testimony, in which defendant emphasized that any touching that might have occurred was not intentional. State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 981 (Tenn. Crim. App. Nov. 27, 2017).

Six of defendant's convictions related to sexual abuse, child abuse, and child neglect involving his children had to be dismissed because the indictment failed to provide defendant with adequate notice of the charged offenses. State v. Sharp, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. Feb. 26, 2019).

Defendant's conviction for employing a firearm during the commission of a dangerous felony had to be vacated because (1) the indictment did not charge defendant with that offense, (2) defendant could not waive the error, and (3) the indictment did not meet constitutional requirements to give defendant proper notice of charges and to give the court an adequate basis for a proper judgment. Romero v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. May 20, 2019).

Indictments charging defendant with first degree premeditated murder, first degree felony murder, and aggravated robbery were sufficient because the elements of the crimes were clearly set forth in the indictment, along with the statutes for each. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 21, 2019).

32. —Degree of Certainty Required.

The description of the offense charged in the indictment must be sufficient in distinctness, certainty, and precision to enable the accused to know what offense he is charged with and to understand the special nature of the charge he is called upon to answer; to enable the court to see from the indictment a definite offense, so that the court may apply its judgment and determine the penalty or punishment prescribed by law; and also to enable the accused to protect himself from a second prosecution for the same offense. State v. Pearce, 7 Tenn. 65, 1823 Tenn. LEXIS 4 (1823); State v. Kilgore, 25 Tenn. 44, 1845 Tenn. LEXIS 14 (1845); State v. McElroy, 50 Tenn. 69, 1871 Tenn. LEXIS 65 (1871); Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872); Harris v. State, 71 Tenn. 324, 1879 Tenn. LEXIS 84 (1879); State v. Ferriss, 71 Tenn. 700, 1879 Tenn. LEXIS 133 (1879).

Such degree of certainty is required in an indictment as will give the defendant what the constitution enjoins, namely, notice of the nature of the charge against him, with sufficient identification of the criminal transaction imputed to him. State v. Pearce, 7 Tenn. 65, 1823 Tenn. LEXIS 4 (1823); Bradford v. State, 22 Tenn. 370, 1842 Tenn. LEXIS 102 (1842); Hall v. State, 43 Tenn. 125, 1866 Tenn. LEXIS 27 (1866).

That degree of precision in the description of an offense cannot be given in the indictment, so as to distinguish it per se from all other cases of a similar nature. Such discrimination amounting to identification must rest in averment by plea and in the proof, and its absence in description in the indictment can be no test of the certainty required either for defense against the present prosecution or for protection against a future prosecution for the same matter. State v. Pearce, 7 Tenn. 65, 1823 Tenn. LEXIS 4 (1823); State v. Cameron, 50 Tenn. 78, 1871 Tenn. LEXIS 67 (1871); Millner v. State, 83 Tenn. 179, 1885 Tenn. LEXIS 39 (1885); State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913).

Criminal prosecutions cannot be sustained by intendment, but everything necessary to constitute the offense must be charged. Steinston v. State, 14 Tenn. 530, 14 Tenn. 531, 1834 Tenn. LEXIS 138 (Tenn. May 1834); Kit v. State, 30 Tenn. 167, 1850 Tenn. LEXIS 82 (1850); Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872); ; Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); (in the dissenting opinion) Woods v. State, 82 Tenn. 460, 1884 Tenn. LEXIS 148 (1884); Jones v. State, 84 Tenn. 466, 1886 Tenn. LEXIS 127 (1886).

To amplify and encumber the charge in an indictment, by circumstantial detail, is not necessary in general, and can serve no purpose but to facilitate the escape of offenders. Bradford v. State, 22 Tenn. 370, 1842 Tenn. LEXIS 102 (1842).

The description of a statutory offense in the words of the statute is sufficient, and renders the indictment sufficiently certain, if it gives to the defendant notice of the nature of the charge against him. Bradford v. State, 22 Tenn. 370, 1842 Tenn. LEXIS 102 (1842); Hall v. State, 43 Tenn. 125, 1866 Tenn. LEXIS 27 (1866). But if the statute does not set forth all the ingredients of the offense, or enough to constitute the crime, the indictment must add them. State v. Ladd, 32 Tenn. 226, 1852 Tenn. LEXIS 55 (1852); Cornell v. State, 66 Tenn. 520, 1874 Tenn. LEXIS 173 (1874); Villines v. State, 96 Tenn. 141, 33 S.W. 922, 1895 Tenn. LEXIS 19 (1896).

The indictment for an attempted abortion by the use of an instrument or instruments for the purpose of producing an abortion must allege the way or manner in which the instrument or instruments were used and employed. There must be sufficient facts alleged to reasonably identify the special transaction upon which defendant is being prosecuted, not only in order that he may know of what he is accused, and may prepare his defense, but also to afford him the means of preventing a second prosecution for the same matter. Smartt v. State, 112 Tenn. 539, 80 S.W. 586, 1903 Tenn. LEXIS 122 (1903), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 931 (Tenn. Crim. App. Nov. 20, 2015), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016); State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905); State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

All indictments must be sufficiently definite and direct in their averments to give the accused notice of the particular crime, with which he is charged, and the nature thereof, and must so describe and identify the offense that the judgment in the case can be relied upon, in another prosecution for the same thing, as a former acquittal or conviction. State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852, 1905 Tenn. LEXIS 50 (1905); State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

There is a growing inclination to relax the strictness formerly required of indictments, especially as to technicalities without reason, which tend to defeat right. Jordan v. State, 156 Tenn. 509, 3 S.W.2d 159, 1927 Tenn. LEXIS 146 (1928).

An indictment must state facts constituting the crime and not mere legal conclusions; but the degree of precision in the description of an offense cannot be given in an indictment so as to distinguish it per se from all other cases of a similar nature. Indictment is sufficient if the description of a statutory offense in the words of the statute gives defendant notice of the nature of the charge against him. Encumbering the charge by circumstantial detail and minute description is unnecessary; but if the statute omits some ingredients of the offense, the indictment must add them. Jordan v. State, 156 Tenn. 509, 3 S.W.2d 159, 1927 Tenn. LEXIS 146 (1928).

While proof of individual or specific identification of the property alleged to have been stolen is necessary to conviction for larceny, general or class identity is sufficient to be shown in the indictment. State v. Cornellison, 166 Tenn. 106, 59 S.W.2d 514, 1932 Tenn. LEXIS 120 (1933).

The prosecution may not satisfy its burdens under Tenn. Const. art. I, § 9, U.S. Const. amend. 6, and Tenn. R. Crim. P. 7(c), simply by alleging in a bill of particulars that it is unable to give specific dates on which the offenses occurred. State v. Byrd, 820 S.W.2d 739, 1991 Tenn. LEXIS 455 (Tenn. 1991).

If the state is unable to give even an approximate time of the alleged offense by means of descriptive reference, a conviction may nevertheless be affirmed if in the course of the trial it does not appear that the defendant's defense has been hampered by the lack of specificity. A conviction must be reversed if trial testimony establishes that the state had in its possession additional information that could have helped pinpoint the nature, time, or place of the offense, and withheld that information from the defendant. State v. Byrd, 820 S.W.2d 739, 1991 Tenn. LEXIS 455 (Tenn. 1991).

Although the Tennessee supreme court has recently stated that where constitutional and statutory requirements are met, an indictment which cites the pertinent statute and uses its language will be sufficient to support a conviction, there is no indication that such relaxation of the strict pleading requirements of common law go so far as to overturn the mandate that the indictment state facts and not mere results or conclusions. State v. Clark, 2 S.W.3d 233, 1998 Tenn. Crim. App. LEXIS 1153 (Tenn. Crim. App. 1998).

An indictment need not allege the specific theory or means by which the state intends to prove each element of an offense to achieve the overriding purpose of notice to the accused. State v. Hammonds, 30 S.W.3d 294, 2000 Tenn. LEXIS 547 (Tenn. 2000).

33. —Notice of Offense Sufficient.

Given the detailed allegations in the indictments, the contents of the petition for waiver signed by the defendant in which he stated he had read the indictment and had been advised by his attorney, and the statement of the charges and the stipulated evidence thereon provided by the state during the guilty plea hearing, there was ample evidence from which the trial court could conclude that the defendant had sufficient notice of the offenses. Bryan v. State, 848 S.W.2d 72, 1992 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. 1992).

An indictment charging aggravated rape in violation of § 39-13-502 met constitutional requirements of notice and form and was valid, even though it failed to allege a culpable mental state. State v. Hill, 954 S.W.2d 725, 1997 Tenn. LEXIS 524 (Tenn. 1997).

An indictment is sufficient to satisfy the constitutional guarantees of notice to the accused if the indictment contains allegations that: (1) Enable the accused to know the accusation to which answer is required; (2) Furnish the trial court an adequate basis for entry of a proper judgment; and (3) Protect the accused from a subsequent prosecution of the same offense. State v. Hammonds, 30 S.W.3d 294, 2000 Tenn. LEXIS 547 (Tenn. 2000).

In defendant's drug case, although the trial court erred in permitting the state to amend the indictment after jeopardy attached to delete the words “and, or deliver,” the error was harmless. Defendant was clearly provided with ample notice of the offense charged, including the facts constituting the offense, the name of defendant, the date of the alleged offense, the amount and type of substance sold, and the statute violated. State v. Lindsey, 208 S.W.3d 432, 2006 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 731 (Tenn. Aug. 21, 2006), dismissed, Lindsey v. Parker, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 102475 (E.D. Tenn. July 23, 2013).

Dismissal of an inmate's habeas corpus petition was proper because the language of the indictment was identical to former T.C.A. § 39-2-603, the statutory provisions in effect at the time of the offenses, and the indictment referenced the appropriate statute, identified the victim, stated the date of the offenses, and alleged the essential elements of the offenses; the indictment was thus sufficient to support the conviction. The absence of a grand jury foreman's signature on an indictment was not a proper ground for habeas corpus relief. Metcalf v. Sexton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Aug. 20, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 844 (Tenn. Nov. 21, 2012), cert. denied, 184 L. Ed. 2d 772, 133 S. Ct. 995, 568 U.S. 1149, 2013 U.S. LEXIS 1011.

Trial court did not err when it allowed the State to amend the indictment after jeopardy attached, because the language in the indictment, along with the specific references to the statute allegedly violated, provided first defendant with ample notice of the offense charged, the indictment was sufficient prior to its amendment, and no new or different offense was charged. State v. Doss, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 539 (Tenn. Crim. App. June 10, 2014), review denied and ordered not published, — S.W.3d —, 2014 Tenn. LEXIS 869 (Tenn. Oct. 15, 2014), cert. denied, Doss v. Tennessee, 192 L. Ed. 2d 169, 135 S. Ct. 2382, — U.S. —, 2015 U.S. LEXIS 3684 (U.S. 2015).

Defendant received adequate notice of the charges against him where (1) each count of the presentment clearly charged the defendant, along with the co-defendants, with each separate crime committed against the victims; and (2) the presentment provided the statutory language and citation for the alleged offenses sufficient to notify defendant of the allegations and allow entry of an appropriate judgment, in the case of conviction. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Trial court did not err by denying defendant's motion to dismiss a count of the indictment and allowing the State to amend the indictment to specify the predicate felony underlying the employment of a firearm during a dangerous felony charge where the original count was not void as the indictment included only one count that qualified as a dangerous felony, the amendment occurred before the jury was sworn, and because the indictment already charged defendant with attempted first degree murder amending the indictment did not charge an additional or different offense. State v. Pierce, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. May 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 643 (Tenn. Aug. 13, 2015).

Trial court did not err by allowing the State to amend one count of the indictment charging defendant with aggravated rape to remove the name of one of the victims because the amendment was allowed before the jury was sworn, and the remaining victim was listed as a victim both before and after the amendment and therefore defendant was not prejudiced in making pretrial investigation and was not surprised as to the offense for which he was charged. State v. Cornelius Banks, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 69 (Tenn. Crim. App. Jan. 29, 2016).

Indictments for aggravated child abuse and neglect adequately provided defendants with notice, as the indictments listed the date, time, and place where the offenses occurred, plus named the victim and his age and the relevant statutes and their elements. State v. Starner, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 20, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 570 (Tenn. Aug. 18, 2016).

Indictment was not void for lack of notice; because aggravated burglary was the only qualifying predicate felony charged in the indictment, it was reasonably clear that the firearm charge was related to the aggravated burglary charge, and petitioner was not entitled to relief. Smith v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 400 (Tenn. Crim. App. May 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 776 (Tenn. Oct. 17, 2016).

Indictment did not reference a statutory list of offenses for which defendant had not been charged, and the official misconduct charge could have been based on evidence tampering or official oppression, both of which were charged in the indictment and were violations of law relating to defendant's employment as a police officer; he was provided adequate notice relative to the possible theories of prosecution against which he had to prepare a defense. State v. Butler, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 415 (Tenn. Crim. App. June 6, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 786 (Tenn. Oct. 21, 2016).

Although defendant contended that the corporate owner of a building was improperly identified in the indictment for vandalism and burglary of a building, the indictment listed the statute of the offenses for which defendant was indicted, giving defendant sufficient notice of the charges against defendant. The evidence introduced at trial did not substantially vary from the information on the indictment, and there was no evidence that defendant's efforts at defending against the charges were hampered by the notice given by the indictment. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

Defendant's indictment was sufficient because the indictment (1) stated a criminal offense, (2) gave defendant sufficient notice to prepare for trial, and (3) was not constructively amended, as the State did not rely on any theories at trial that were not embraced by the indictment. State v. Greer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. May 17, 2017).

Bill of particulars was sufficient for constitutional purposes; the bill's text, while not extensive, provided defendant information in addition to that contained in the indictment and informed him of the pertinent actions that he should investigate and for which he should prepare a defense. State v. Carey, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 704 (Tenn. Crim. App. Aug. 9, 2017).

Indictment satisfied the requirements under the constitution given that it set forth the material elements of hindering a secured creditor under T.C.A. § 39-14-116 and gave the factual allegations of the year, make, and model of the vehicle, the holder of the security interest, the date on which the alleged crime took place, and the county in which the crime allegedly occurred. State v. Carey, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 704 (Tenn. Crim. App. Aug. 9, 2017).

For purposes of T.C.A. § 40-13-202, the indictment for attempted first degree murder under T.C.A. §§ 39-12-101, 39-13-202 was legally sufficient, as the indictment referenced the murder statute, named the victim, and provided a time period during which the State alleged the offense occurred; although the indictment did not state the means by which the State alleged defendant committed the offense, such was not required in order to provide him with notice. State v. Fisher, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 96 (Tenn. Feb. 14, 2018).

Indictments provided sufficient notice to defendant because each of the indictments cited the relevant statute. State v. Watkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 26, 2019).

Indictment stating an incorrect mens rea for indecent exposure was not invalid because (1) the indictment stated the correct statute and information on the crime's elements, giving sufficient notice of the crime and mens rea, and (2) defendant did not seek more specific information. State v. Johnson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 422 (Tenn. Crim. App. July 15, 2019).

Indictment was sufficient to inform defendant of the nature of the charge of tampering with the firearm he used during a shooting because the indictment informed defendant that he was accused of altering, destroying, or concealing any record, document, or thing with the intent to impair its verity, legibility, or availability as evidence in an investigation that he knew was taking place,and the indictment cited to subsection (a)(1). State v. Manning, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. Sept. 17, 2020).

34. —Sufficiency of Statute on Which Charges Based.

Statute making it a criminal offense to drive any vehicle “carelessly and heedlessly and in wanton disregard of the rights and safety of others,” was not so indefinite as to violate Tenn. Const. art. I, § 9, since it was a question of fact that could be fairly submitted to and determined by a judge and jury as to whether defendant had operated a motor vehicle on the highway “carelessly and heedlessly and in wanton disregard of the rights and safety of others” or had conducted himself “without due care.” Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

Language of an indictment provided defendant with ample notice of the offenses charged, including felony murder during the perpetration of an attempted robbery where the indictment contained a specific reference to the statute allegedly violated; in addition, because the court's felony murder instruction did not infringe upon the jury's fact finding role of a contested issue at trial, no error was presented. State v. Maclin, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1120 (Tenn. Crim. App. Oct. 17, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 212 (Tenn. 2006) .

35. —Right to a Copy of Accusation.

The accused in all criminal prosecutions is entitled to a copy of the accusation. This is a constitutional right existing in all criminal offenses. Mitchell v. State, 16 Tenn. 514, 1835 Tenn. LEXIS 118 (1835) (in dissenting opinion); Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859); Nokes v. State, 46 Tenn. 297, 1869 Tenn. LEXIS 57 (1869); Moses v. State, 68 Tenn. 229, 1877 Tenn. LEXIS 27 (1877); Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883). Where the accused is in actual confinement under an indictment for a capital offense, he is by statute entitled to a copy of the indictment at least two entire days before trial. The constitutional right to a copy of the accusation is not restricted to capital cases, but in such cases the statute provides that the accused is entitled to the copy at least two entire days before trial. The statute does not restrict the constitutional right, but more specifically defines and enlarges the right in capital cases, where the accused is in actual confinement. Nokes v. State, 46 Tenn. 297, 1869 Tenn. LEXIS 57 (1869); Moses v. State, 68 Tenn. 229, 1877 Tenn. LEXIS 27 (1877); Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883).

The right to a copy of the accusation will be waived. Nokes v. State, 46 Tenn. 297, 1869 Tenn. LEXIS 57 (1869). Waiver of the right will be implied, if the copy is not demanded. Moses v. State, 68 Tenn. 229, 1877 Tenn. LEXIS 27 (1877). It will be presumed that the copy was furnished or that the requirement was waived, where the record does not affirmatively show a failure to furnish the copy. Davis v. State, 65 Tenn. 429, 1873 Tenn. LEXIS 380 (1873); Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883).

36. —Convictions Under Indictment.

Under an indictment for larceny, there may be a conviction of an attempt to commit a larceny, without a violation of the constitutional requirement that the accused shall be informed of “the nature and cause of the accusation against him,” for it is impossible to commit the offense of larceny without first attempting it. De Lacy v. State, 67 Tenn. 401, 1875 Tenn. LEXIS 66 (1875); Hall v. State, 75 Tenn. 685, 1881 Tenn. LEXIS 169 (1881).

Under an indictment for larceny, the defendant may be acquitted of the felony, and convicted of the misdemeanor. Hall v. State, 75 Tenn. 685, 1881 Tenn. LEXIS 169 (1881).

Indictment failing to allege that either defendant committed “an overt act in pursuance of the conspiracy” rendered all subsequent proceedings void, as a conviction upon a charge not made would be sheer denial of due process. State v. Perkinson, 867 S.W.2d 1, 1992 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 35 (Tenn. Feb. 1, 1993).

Habeas court did not err in summarily dismissing petitioner's application for a writ of habeas corpus because petitioner did not established a void judgment; second degree murder was a lesser-included offense of first degree murder and was thus encompassed by the indictment. Soimis v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 297 (Tenn. Crim. App. Apr. 24, 2015).

Trial and appellate counsel were not ineffective for failing to raise the issue that petitioner's double jeopardy protections were violated when the jury was allowed to consider the charges for both especially aggravated kidnapping and aggravated assault because the convictions did not violate double jeopardy; given that the elements of the offenses were different, they were two separate crime. Hubbard v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. Sept. 25, 2015).

37. —Charge to Jury.

Where indictment for burglary did not charge defendant with opening or attempting to open a safe, it was error for the court to charge the jury as to the statute making such opening a crime. Church v. State, 206 Tenn. 336, 333 S.W.2d 799, 1960 Tenn. LEXIS 370 (1960).

The trial court's duty to instruct the jury on all lesser included offenses if the evidence is legally sufficient to support a conviction for the lesser offense, applies whether or not a defendant requests such an instruction. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Because the inmate affirmatively requested a jury instruction on the offense of aggravated assault, even though he was in error in believing that it was a lesser-included offense of attempted first-degree murder, he effectively agreed to amend the indictment to include aggravated assault; therefore, the trial court had jurisdiction to convict the inmate of aggravated assault, his conviction was not void, and he was not entitled to habeas corpus relief. Demonbreun v. Bell, 226 S.W.3d 321, 2007 Tenn. LEXIS 452 (Tenn. May 8, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 529 (Tenn. May 25, 2007).

Trial court did not err when it instructed the jury that the felony murder was committed during the perpetration of an aggravated burglary when the indictment alleged that the felony murder occurred during a burglary because the variance did not affect defendant's substantial rights, as the indictment and the proof substantially corresponded and the indictment provided defendant with sufficient notice and protection against double jeopardy. The transcript reflected that defendant was adequately prepared for trial, and he failed to establish that he was prejudiced by the change in the indictment; if there was any error it was harmless as the felony murder conviction was merged with his premeditated murder conviction. State v. Harrell, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 172 (Tenn. Crim. App. Feb. 26, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 612 (Tenn. June 25, 2007).

Defendant's convictions for two counts of first-degree felony murder and attempted aggravated robbery were proper, because his argument that the trial court erred in giving a curative instruction was inappropriate since no challenge to the instruction was raised in defendant's motion for a new trial; plain error review was unwarranted because the appellate court was unable to conclude that the trial court's comments within the curative instruction more likely than not affected the judgment or resulted in prejudice to the judicial process. State v. Tabb, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Sept. 14, 2007).

Deletion of “feloniously” from a jury charge for simple possession of marijuana as a misdemeanor offense did not violate Tenn. Const. art. I, §§ 9 or 14, or T.C.A. § 40-13-202 where an inmate was charged with unlawfully, feloniously, knowingly and intentionally having had in his possession and under his control approximately three cigarette butts containing marijuana. Montague v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 769 (Tenn. Crim. App. Sept. 25, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 71 (Tenn. Jan. 8, 2013).

38. —Waiver.

Where, under indictment for barn burning, defendant went to trial and was tried without any objection to the form of the indictment for its failure to give notice of the nature and cause of the accusation, in that, it charged him as principal and he was convicted on evidence, if true, showing him to be an accessory before the fact; where he interposed no objection that the evidence was incompetent as not tending to prove the offense charged, or that he was taken by surprise, or in any way misled by lack of more specific averments therein, and made no motion in the circuit court in arrest of judgment, his objection made for the first time in the supreme court came too late. Pierce v. State, 130 Tenn. 24, 168 S.W. 851, 1914 Tenn. LEXIS 2 (1914).

Where defendant pleads to the indictment and goes to trial upon the merits, the defect in description is cured by the verdict. Jordan v. State, 156 Tenn. 509, 3 S.W.2d 159, 1927 Tenn. LEXIS 146 (1928).

T.C.A. § 40-18-110(d) does not provide for a waiver of appellate review where a defendant fails to object to an offense that is not a lesser included offense of the principal charge already in the indictment; a fortiori, a defendant's mere failure to object to a proposed jury instruction which includes an offense that is not a lesser included offense will likewise not constitute implicit consent to an amendment to the indictment. State v. Gray, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 990 (Tenn. Crim. App. Dec. 17, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 342 (Tenn. Apr. 28, 2008).

39. Right to Be Informed of Constitutional Rights.

Where a defendant, immediately after the homicide, was arrested and taken before a justice of the peace who was a friend of defendant, and the justice questioned the defendant and heard his statement as to how the homicide occurred but defendant was not advised of his constitutional rights, the court could properly consider that defendant told his story to justice as a friend rather than as a magistrate, and justice could not testify as to such statement on trial of defendant for homicide. Giles v. State, 185 Tenn. 429, 206 S.W.2d 412, 1947 Tenn. LEXIS 348 (1947).

Trial court is granted wide latitude in determining whether suspect is subjected to custodial interrogation, and where court hears witnesses and has basis for determination that suspect is not in custody at time of questioning, there is no abuse of discretion. State v. Alvarado, 961 S.W.2d 136, 1996 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. 1996).

Trial court did not err in denying defendant's motion to suppress her statement to the police on the ground that the police failed to advise her of her Miranda rights because defendant was not in custody when they questioned her at the hospital where her young son was being treated for a drug overdose; the detectives told defendant that she was not in trouble but that they were just trying to figure out what happened and that they needed the truth. Although defendant was upset during the interview, her emotional state was due to her son's dire condition and her fear of being in trouble. State v. Wilson, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 933 (Tenn. Crim. App. Dec. 19, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 257 (Tenn. Apr. 11, 2012).

Trial court erred in denying defendant's motion to suppress the statement which defendant gave prior to defendant's arrest to responding police officers because defendant was not advised of defendant's Miranda rights in that defendant was in custody as defendant was in handcuffs and in the back of a police car when defendant made the statement and an officer never articulated to defendant that defendant was being handcuffed or placed in the car for safety reasons. However, the error was harmless given the evidence of defendant's guilt. State v. Moran, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 701 (Tenn. Crim. App. Oct. 29, 2020).

40. Right to Meet Witnesses Face to Face.

The provision that “the accused hath a right to meet witness face to face” has no application to witness summoned in behalf of the defendant. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

In this state disbarment proceedings are not regarded as criminal in nature and therefore a defendant is not deprived of his constitutional right to meet witnesses face to face where testimony is available in form of a deposition. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

In prosecution for voluntary manslaughter, statement of one of jurors during deliberations, that defendant had a bad temper and would kill you if he got mad and that he had killed his brother, violated defendant's right to meet the witnesses face to face and error did not fall within harmless error statute even though all jurors testified that it did not influence their verdict. Briggs v. State, 207 Tenn. 253, 338 S.W.2d 625, 1960 Tenn. LEXIS 454 (1960).

Failure of state to call witness having knowledge of facts relating to alleged crime does violate constitutional right to accused to meet witnesses face to face. State ex rel. Dickens v. Bomar, 214 Tenn. 493, 381 S.W.2d 287, 1964 Tenn. LEXIS 498 (1964).

Failure of state to call as witnesses all persons listed on indictment to be summoned did not violate constitutional right of accused to meet witnesses face to face. State ex rel. Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280, 1964 Tenn. LEXIS 496 (1964).

Defendant indicted for obtaining money by unpaid check was not deprived of constitutional right to meet witnesses face to face by statements by juror during deliberations that juror had stack of bad checks and the practice had to be stopped and that defendant had been in court before where there was no suggestion that any of the bad checks referred to had been given by defendant and defendant admitted in his testimony that he had criminal record. Troglen v. State, 216 Tenn. 447, 392 S.W.2d 925, 1965 Tenn. LEXIS 590 (1965).

Allowing jurors to read notes taken during course of trial during deliberations did not violate right of accused to meet witnesses face to face. Watkins v. State, 216 Tenn. 545, 393 S.W.2d 141, 1965 Tenn. LEXIS 598, 14 A.L.R.3d 818 (1965).

It was not error to introduce results of an autopsy in a homicide case on the ground that the defendant was not permitted to be present at the autopsy, as Tenn. Const. art. I, § 9 does not require the presence of an accused except during the trial of the cause. Tate v. State, 219 Tenn. 698, 413 S.W.2d 366, 1967 Tenn. LEXIS 455 (1967).

Where there was no showing of prejudice, absence and failure to testify of person who signed warrants charging defendant with forgery because of illness of such person did not violate defendant's constitutional right to meet witnesses face to face. Briggs v. State, 3 Tenn. Crim. App. 471, 463 S.W.2d 161, 1970 Tenn. Crim. App. LEXIS 466 (1970), cert. denied, 400 U.S. 997, 91 S. Ct. 473, 27 L. Ed. 2d 447, 1971 U.S. LEXIS 3528 (1971).

Where a witness was equally available to both the defendant and the state in a first degree murder trial and the witness was not called by the state, but, as the result of objections raised by defense counsel, information received from the witness was brought out indirectly in the testimony of another prosecution witness, the failure of the state to produce the witness did not deny the defendant his constitutional right to confront the witnesses against him. Wright v. State, 512 S.W.2d 650, 1974 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1974).

In second trial for murder, introduction of witnesses' testimony taken from transcript of first trial was proper, since the witnesses were aliens who had subsequently been deported for illegal entry and had been thoroughly cross examined by defendants' counsel at the first trial. Seymour v. State, 546 S.W.2d 250, 1976 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1976).

The admission in evidence of toxicology laboratory reports, through a witness other than those that performed the test, violated defendant's constitutional right to confrontation. State v. Henderson, 554 S.W.2d 117, 1977 Tenn. LEXIS 637 (Tenn. 1977), rehearing denied, 554 S.W.2d 117, 1977 Tenn. LEXIS 638 (Tenn. 1977), superseded by statute as stated in, Sawyer v. State, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 244 (Tenn. Crim. App. Mar. 15, 2007).

The standards and criteria that must be met in order to satisfy the confrontation clause of U.S. Const. amend. 6, also apply to Tenn. Const. art. I, § 9. State v. Armes, 607 S.W.2d 234, 1980 Tenn. LEXIS 507 (Tenn. 1980).

A prosecutor wishing to introduce evidence that would normally infringe on a defendant's confrontation rights must satisfy a tripartite test: (1) Use of the evidence must be necessary; (2) The evidence must carry its own indicia of reliability; and (3) Evidence must not be crucial or devastating. State v. Armes, 607 S.W.2d 234, 1980 Tenn. LEXIS 507 (Tenn. 1980).

Although a witness who has received a fresh complaint from the victim in certain crimes should be allowed to testify such a complaint was made, a witness should not be allowed to give details of the complaint when the victim does not testify, and this proscription of the details especially excludes the identification of the accused by the victim. State v. Williams, 598 S.W.2d 830, 1980 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1980).

The admission of court records in evidence does not violate the constitutional right to confrontation. State v. Miller, 608 S.W.2d 158, 1980 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. 1980).

The use of so-called “bloodhound evidence” did not violate a defendant's constitutional right under the state and federal constitutions to confront and cross-examine the witnesses against him because the inability of the defendant to cross-examine the dog is not considered prejudicial, so long as its owner, trainer, or handler is made available for examination as to the dog's general qualifications and specific activities on the day in question. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

The right to face one's accusers in civil matters is not the same as in criminal matters. Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 1983 Tenn. App. LEXIS 710 (Tenn. Ct. App. 1983).

Former 24-7-116(c)(1)(I)(ii), which permitted the use of pretrial, ex parte, videotaped statements of child victims at trial as evidence in chief against the accused defendant, prohibited contemporaneous cross-examination, and was unconstitutional. State v. Pilkey, 776 S.W.2d 943, 1989 Tenn. LEXIS 395 (Tenn. 1989), rehearing denied, — S.W.2d —, 1989 Tenn. LEXIS 426 (1989), cert. denied, Pilkey v. Tennessee, 494 U.S. 1032, 110 S. Ct. 1483, 108 L. Ed. 2d 619, 1990 U.S. LEXIS 1318 (1990), cert. denied, Tennessee v. Pilkey, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1305 (1990), cert. denied, In re Disbarment of Marcone, 108 L. Ed. 2d 967, 110 S. Ct. 1839, 494 U.S. 1092, 1990 U.S. LEXIS 1998 (1990); Tennessee v. Pilkey, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1305 (1990).

Trial court's failure to allow defense counsel to examine witness' confidential psychiatric records did not deprive defendant of the opportunity to confront witnesses against him where there was no showing that the records contained any material evidence favorable to defendant. State v. Middlebrooks, 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (Tenn. 1992), cert. dismissed, Tennessee v. Middlebrooks, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555, 1993 U.S. LEXIS 7942 (1993), cert. denied, Tennessee v. Middlebrooks, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702, 1994 U.S. LEXIS 402 (1994), superseded by statute as stated in, State v. Banks, 271 S.W.3d 90, 2008 Tenn. LEXIS 963 (Tenn. 2008).

Tenn. Const. art. I, § 9 and U.S. Const. amend. 14, prohibit proof of an essential element of a crime in a criminal prosecution by the admission of evidence that violates the right to confront and cross-examine adverse witnesses. State v. Wade, 863 S.W.2d 406, 1993 Tenn. LEXIS 358 (Tenn. 1993).

In a prosecution for robbery, admission of surveillance photographs into evidence did not violate defendant's federal or state constitutional right to confrontation. State v. Williams, 913 S.W.2d 462, 1996 Tenn. LEXIS 1 (Tenn. 1996).

Exclusion of the type of evidence required to be excluded by the rape shield provision, Tenn. R. Evid. 412, did not deny defendant's constitutional right to present evidence and confront witnesses. State v. Sheline, 955 S.W.2d 42, 1997 Tenn. LEXIS 496 (Tenn. 1997), cert. denied, Sheline v. Tennessee, 523 U.S. 1010, 118 S. Ct. 1199, 140 L. Ed. 2d 327, 1998 U.S. LEXIS 1735 (1998).

The three part test adopted in State v. Henderson, 554 S.W.2d 117, 1977 Tenn. LEXIS 637 (Tenn. 1977), for determining whether the admission of hearsay evidence violates the confrontation clause does not apply to those hearsay exceptions, such as the exception for co-conspirator's statements, that are deeply rooted in legal history as being inherently reliable. State v. Alley, 968 S.W.2d 314, 1997 Tenn. Crim. App. LEXIS 565 (Tenn. Crim. App. 1997).

Trial court correctly determined that the murder victim's statements regarding defendant's previous violence toward the victim were admissible under Tenn. R. Evid. 804(b)(6), and defendant's rights to confrontation were not violated where the preponderance of the evidence supports the finding that defendant killed the victim to prevent her from contacting the police about defendant's aggravated assault. Defendant killed the victim two days after she swore out a warrant against him. State v. Ivy, 188 S.W.3d 132, 2006 Tenn. LEXIS 137 (Tenn. 2006), cert. denied, Ivy v. Tennessee, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200, 2006 U.S. LEXIS 6153 (2006).

In defendant's aggravated rape case, defendant's confrontation rights were not violated because before the victim spoke with the nurse, she had been discussing her rape in a medical context, and medical purposes were the nurse's motivation for asking the victim about the rape; the victim's statement was made for medical not testimonial purposes, and the victim was not acting as a witness when she spoke with the nurse. State v. Cannon, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 27, 2006), aff'd in part, rev'd in part, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Admission into evidence of an automobile license tag number observed and written down by a bystander near the crime scene who did not appear at trial did not violate defendant's right to confrontation under the Confrontation Clause of U.S. Const. amend. 6 or Tenn. Const. art. I, § 9, because the evidence was a nontestimonial statement with the primary purpose of responding to a cry for help during an ongoing emergency. State v. Franklin, 308 S.W.3d 799, 2010 Tenn. LEXIS 415 (Tenn. Apr. 29, 2010), cert. denied, Franklin v. Tennessee, 179 L. Ed. 2d 503, 131 S. Ct. 1598, — U.S. —, 2011 U.S. LEXIS 1989 (U.S. 2011).

In determining the scope of the Confrontation Clause of U.S. Const. amend. 6 and Tenn. Const. art. I, § 9, the Supreme Court of Tennessee does not hold that statements between private parties unconnected to law enforcement are per se nontestimonial and thus exempt from Confrontation Clause scrutiny, but will continue to define which statements are “testimonial” only to the extent necessary to resolve the cases coming before the court. State v. Franklin, 308 S.W.3d 799, 2010 Tenn. LEXIS 415 (Tenn. Apr. 29, 2010), cert. denied, Franklin v. Tennessee, 179 L. Ed. 2d 503, 131 S. Ct. 1598, — U.S. —, 2011 U.S. LEXIS 1989 (U.S. 2011).

In determining whether a statement is “testimonial” for purposes of the Confrontation Clause of U.S. Const. amend. 6 and Tenn. Const. art. I, § 9, such factors as the identity of the declarant, the formality of the surrounding circumstances, and the structure and extent of the questioning may very well bear on the ultimate, decisive inquiry: an objective determination of the primary purpose of the statement. The factors are non-exhaustive and allow for consideration of additional factual details specific to a particular case. State v. Franklin, 308 S.W.3d 799, 2010 Tenn. LEXIS 415 (Tenn. Apr. 29, 2010), cert. denied, Franklin v. Tennessee, 179 L. Ed. 2d 503, 131 S. Ct. 1598, — U.S. —, 2011 U.S. LEXIS 1989 (U.S. 2011).

Defendant was not entitled to plain error relief based on the testimony of a doctor who did not prepare the autopsy reports because the law was unclear regarding expert reports and testimony about them and the Confrontation Clause; and because the plain error doctrine was not necessary to do substantial justice as defendant did not contest the causes of the victims' deaths or any other conclusions or information contained in the autopsy reports or in the doctor's testimony, and the autopsy reports and the doctor's testimony did not implicate defendant or tie him to the homicides. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Defendant was properly ejected from the courtroom, and he was not deprived of his right of confrontation, as he was on notice that any disruptive conduct would result in his removal from the courtroom, the trial court admonished him several times that an order not to speak applied to all proceedings relating to a charge of possession of contraband, and he had previously been removed from the courtroom during a hearing for violating the court's order not to speak. State v. Freeman, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 963 (Tenn. Crim. App. Oct. 16, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 151 (Tenn. Feb. 12, 2015).

Defendant did not object on confrontation grounds to the admission of the autopsy report or challenge any of the findings contained in the report, and he also failed to object to the doctor's testimony; the primary issue at trial was whether defendant was the perpetrator, and the report did not reveal any forensic evidence tying a particular person to the murder, and defendant was not entitled to plain error relief. State v. Washington, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Mar. 31, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 650 (Tenn. Aug. 13, 2015).

Question of whether the victim was legally in the country had no relevance in establishing whether he was the victim, and his testimony did not open the door to further questioning about his immigration status because his country of origin was not relevant to the issues at trial, plus the identity of the victim was not relevant; to any extent that the victim's identity was in question, defendant received a sufficient opportunity to address the issue, and the trial court did not abuse its discretion in limiting the cross-examination. State v. Crites, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 784 (Tenn. Sept. 17, 2015).

Trial court did not err in determining that a medical report prepared by a nurse who examined the minor children who were allegedly sexually abused by defendant, and which contained statements made by the victims to the nurse, was admissible in the testimony of a doctor because the Confrontation Clause was not violated as both victims testified at length at trial and could have been cross-examined about any statements contained within the report. State v. Howard, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 4, 2015), aff'd in part, rev'd in part, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

Trial court improperly prohibited defendant from inquiring about the pending charge on cross-examination but any error was harmless; the testimony was cumulative and not crucial to the State's case. State v. Sanders, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Dec. 23, 2015).

Trial court did not violate defendant's confrontation rights when it permitted the trial to proceed in the absence of the officer who was the prosecutor, as the officer was not a State's witness against defendant and thus, defendant had no constitutional right to confront the potential witness who did not testify. State v. Stephens, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 6, 2016), rev'd, 521 S.W.3d 718, 2017 Tenn. LEXIS 391 (Tenn. June 16, 2017).

Witness's statement that the victim said he did not remember of defendant or the co-defendant stabbed him did not qualify pursuant to Bruton because it did not implicate defendant. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 908 (Tenn. Crim. App. Dec. 6, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 234 (Tenn. Apr. 12, 2017).

Even though a witness's statement that she could not remember whether the co-defendant said he or defendant stabbed the victim violated Bruton, the error was harmless because the statement constituted an insignificant portion of the evidence of defendant's guilt. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 908 (Tenn. Crim. App. Dec. 6, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 234 (Tenn. Apr. 12, 2017).

While a trial court erred by preventing defendant from cross-examining a witness about an unrelated pending charge, the error was harmless because another witness testified that defendant sold oxycodone pills to the witnesses and police detectives testified that defendant confessed to selling the pills. Defense counsel exposed the potential of the witness for bias by revealing that the guilty plea by the witness to simple possession was expunged and by having the witness admit that the officers threatened to take the witness to jail. State v. Ashford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 801 (Tenn. Crim. App. Sept. 1, 2017).

Because the victim testified and was cross-examined at trial, the testimonial nature of the victim's statement had no bearing on the admissibility of the patrol vehicle video in which the victim made her statements in response to an officer's questions. State v. Tittle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Oct. 23, 2017).

Recording did not violate the Confrontation Clause, and no clear and unequivocal rule of law was violated, because the recording contained statements and questions from an investigator, an officer, and defendant's statements, and the investigator was present at trial for cross-examination. State v. Langlinais, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 170 (Tenn. Crim. App. Mar. 2, 2018).

Defendant claimed a Confrontation Clause issue on appeal, but he waived the issue for review by not objecting on these grounds during the trial; in any event, the Confrontation Clause was not violated because defendant was afforded the right and opportunity to confront and cross-examine the expert during the trial. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 420 (Tenn. July 18, 2018).

Trial court did not abuse its discretion in limiting defendant's cross-examination of the victim regarding an investigation conducted by the board of professional responsibility because as such evidence was no relevant to defendant's mental statement or whether defendant committed aggravated robbery of the victim. State v. Vincent, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 713 (Tenn. Crim. App. Nov. 8, 2019).

Defendant's right to confrontation was not violated based on his allegation that, based on the physical layout of the courtroom, he was unable to see the victim seated on the witness stand because the trial court found that defendant had been seated in a chair from which the witness stand could be seen, he had voluntarily moved to another chair during the victim's testimony, he had been afforded the opportunity to move the defense table and to sit in a different chair, defendant had been present in the courtroom during the victim's testimony and had been afforded the right to cross-examine her, and the trial court rejected his allegation that the victim had been instructed to hide from defendant by positioning herself where he could not see her. State v. Owens, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 9, 2020).

Admission of the victims' medical reports did not violate the Confrontation Clause by recording the victims' testimony without giving defendant an opportunity to cross-examine because each victim testified and defendant had the opportunity to cross-examine them extensively about their previous statements. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. Apr. 30, 2020).

Trial court did not violate defendant's rights under the Confrontation Clause because the record established that defendant was able to question and alert the jury as to co-defendant's motivation for testifying, asking her why she was testifying for the State and whether she received the promise of leniency in exchange for her testimony. State v. Nunez, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. Aug. 14, 2020).

41. —Non-testimonial Statement.

Testimony by the victim's neighbor that, nine days before the murder, the victim was nervous and scared because someone she did not fully trust was in her house was admissible because the victim's statement was not non-testimonial State v. Garner, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 852 (Tenn. Crim. App. Sept. 30, 2013), review denied and ordered not published, — S.W.3d —, 2014 Tenn. LEXIS 141 (Tenn. Feb. 12, 2014), cert. denied, Garner v. Tennessee, 190 L. Ed. 2d 338, 135 S. Ct. 447, — U.S. —, 2014 U.S. LEXIS 7297 (U.S. 2014).

Defendant's confrontation rights were not violated by admission of an autopsy report because the autopsy report was non-testimonial and as an expert in the field of pathology, the trial court properly allowed the expert to testify as to her conclusions about the victim's cause of death based on her review of the facts and data provided in the autopsy report. State v. Carey, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 10, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 55 (Tenn. Jan. 21, 2016).

Admission of the victim's statements made during the attack, “help me” and “he has my purse,” did not violate defendant's right to confront the witnesses against him because neither of the statements were testimonial, as they were made during the ongoing emergency of defendant's attack and could not be said to have been made to assist in a later criminal prosecution. State v. Logan, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 601 (Tenn. Crim. App. July 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 963 (Tenn. Nov. 24, 2015).

Testimony about a deceased officer's out-of-court statement that a latent print was lifted from a coffee cup did not violate defendant's right to confrontation because the statement was not testimonial as the primary purpose of the officer's statement was not evidentiary, nor was it a targeted accusation or sufficiently formal in character because, at the time he created the latent lift card, the officer did not know whether the print collected from the coffee cup would ultimately prove to be relevant at trial; the officer's statements were not testimonial as the latent fingerprint, standing alone, shed no light on the guilt of defendant; and the expert who matched the latent print to defendant was cross-examined by defendant at trial. State v. Johnson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 10, 2015).

Admission of the victim's autopsy report through the testimony of a medical examiner who did not perform the autopsy did not violate defendant's right to confront the witnesses against him because the autopsy report was not testimonial, as the report was not sworn to or certified by the medical examiner who performed it and the overall circumstances did not indicate that the report was made for the purpose of proving defendant's guilt, as it did not reference evidence linking defendant to the blunt force trauma listed as the cause of death. State v. Hutchinson, 482 S.W.3d 893, 2016 Tenn. LEXIS 83 (Tenn. Feb. 5, 2016).

Trial court did not err by denying the first defendant's motion for severance because the second defendant would have invoked his Fifth Amendment rights if called as a witness at a separate trial as he did during their joint trial, the second defendant's redacted statement that was introduced at trial did not incriminate the first defendant on its face, the trial court's failure to instruct the jury that the second defendant's statement could only be considered against him and not the first defendant was harmless, and defendants did not present antagonistic defenses, as each maintained that he was not present when the victim was shot. State v. Flynn, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 600 (Tenn. Sept. 22, 2017).

Admission of several exhibits, including an order resetting defendant's case and probation violation warrants, did not violate defendant's right to confrontation because they were created for the administration of the affairs of the county circuit court and were nontestimonial. State v. Chick, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 805 (Tenn. Nov. 16, 2017).

Admitting a photo lineup based on a hearsay statement did not violate defendant's confrontation right because the spontaneous hearsay statement made as the declarant was running down a street was not testimonial. State v. Bumpas, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 803 (Tenn. Crim. App. Sept. 1, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 11 (Tenn. Jan. 17, 2018).

Defendant's official driver record did not violate his rights under the Confrontation Clause because the certification of a public record was not testimonial; if the records themselves do not fall within the constitutional guarantee provided by the Confrontation Clause, it would be odd to hold that the foundational evidence authenticating the records does. State v. Martinez, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 977 (Tenn. Crim. App. Nov. 21, 2017).

In a case in which defendant was convicted of criminal exposure to HIV, the admission of the county health department records that purported to establish both defendant's positive HIV status as well as his knowledge of the same did not violate defendant's constitutional rights to confrontation because the records were a combination of medical records relevant to defendant's diagnosis and treatment and business records created for the administration of the health department's affairs; and nothing suggested that the records were created for the purpose of establishing or proving some fact at trial, and, in consequence, they were not testimonial. State v. Person, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2018).

Even though the trial court erred by allowing the State to elicit testimony from a detective about a statement made by a non-testifying co-defendant concerning an unidentified eyewitness to the crime, because its prejudicial impact substantially outweighed the misleading impression created by the defense's cross-examination, the error was not plain because the testimony of the State's key witness and other incriminating evidence provided more than enough proof for the jury to conclude that defendant was one of the perpetrators. State v. Vance, — S.W.3d —, 2020 Tenn. LEXIS 83 (Tenn. Feb. 25, 2020).

Because the primary purpose of the affidavit was to authenticate the repair invoice as a business record, it was not evidentiary, and because the primary purpose of the affidavit was not evidentiary, the Confrontation Clause had no application to its admission. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. Feb. 3, 2020).

Because the repair invoice qualified as a business record and was excepted from the hearsay rule, and as a business record, the invoice was nontestimonial, and therefore its admission did not violate the Confrontation Clause. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. Feb. 3, 2020).

42. —Absence of Witnesses — Affidavits.

The attorney general's admission that the absent witness under subpoena is credible and that he would swear to the statements made in the affidavit for a continuance will not prevent the continuance. Rhea v. State, 18 Tenn. 258, 1837 Tenn. LEXIS 16 (1837); State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884).

The practical operation of such an arrangement upon the rights and fate of the accused must often, if not always, be wholly illusory. Rhea v. State, 18 Tenn. 258, 1837 Tenn. LEXIS 16 (1837); Goodman v. State, 19 Tenn. 195, 1838 Tenn. LEXIS 47 (1838); State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884).

Where the admission of the attorney general is not merely that the absent witness would testify as stated in the affidavit for a continuance, but that the facts are true as set forth therein, such admission should not preclude the defendant in a criminal case from his constitutional right of having the witnesses personally present at the trial. Goodman v. State, 19 Tenn. 195, 1838 Tenn. LEXIS 47 (1838); State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884); Louisville & N.R.R. v. Voss, 109 Tenn. 718, 72 S.W. 983, 1902 Tenn. LEXIS 103 (1903).

The statement perhaps goes too far, in assuming that the agreement to admit that the facts are true as set forth in the affidavit might not be sufficient. The admissions thus made could not be disputed, and would stand as absolutely conceded for all the purposes of the case. State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884); Louisville & N.R.R. v. Voss, 109 Tenn. 718, 72 S.W. 983, 1902 Tenn. LEXIS 103 (1902).

The testimony of a candid and respectable witness, delivered in person, and in the presence of the jury, giving the facts in all their details, ramifications, and bearings, is so superior to the general admission of these facts by an attorney general, little impressing, perhaps, the minds of the jury, and constituting, as to its extent and bearing, a fruitful source of difficulty and dispute, that, in every view, as it regards the rights of the accused, and the safe, equal, and pure administration of justice, the practice of receiving affidavits as the testimony of an absent witness, upon the admission of the truth thereof by the attorney general, is improper and erroneous. Goodman v. State, 19 Tenn. 195, 1838 Tenn. LEXIS 47 (1838); State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884); Louisville & N.R.R. v. Voss, 109 Tenn. 718, 72 S.W. 983, 1902 Tenn. LEXIS 103 (1902).

Where an absent witness resided out of the state and was not subject to the compulsory process of the court, and the attorney general proposed to agree that the affidavit of the accused for a continuance on account of the absence of such witness might be read as the deposition of the witness, and the court gave permission to the accused to amend his affidavit by the addition of any other material facts he expected to prove by the witness, and then allow it to be read as the deposition of a credible witness, announcing that he would, and accordingly did, charge the jury to consider such statement as the testimony of a credible witness, the supreme court refused to reverse. Petty v. State, 72 Tenn. 326, 1880 Tenn. LEXIS 23 (1880); State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884).

There is no reversible error for refusing a continuance for the absence of witnesses, even in a criminal case, where the facts that could be proved by them are proved by other witnesses, and are uncontradicted. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883).

The reason for the rule applies with equal force in criminal and civil cases, and the rule should be enforced in all cases. Louisville & N.R.R. v. Voss, 109 Tenn. 718, 72 S.W. 983, 1902 Tenn. LEXIS 103 (1903). The offer of the adverse party in a civil case to allow the statements made in the affidavit for a continuance on account of the absence of a witness to be read on the trial as the testimony of the absent witness is insufficient to defeat the right to a continuance. There must be an admission of the truth of the statements to defeat the continuance. Louisville & N.R.R. v. Voss, 109 Tenn. 718, 72 S.W. 983, 1902 Tenn. LEXIS 103 (1902).

Because the State was not required to call any particular witness in a criminal prosecution, and defendant could have issued a subpoena to secure the testimony of the confidential informant's wife, but did not, he accepted the risk that the State would not call her as a witness, and defendant was not entitled to plain error relief based upon a Confrontation Clause violation. State v. Webster, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 25, 2018).

43. — Deceased Trial Counsel.

Inmate was not entitled to a new trial due to trial counsel's post-trial death, which deprived the inmate of the ability to confront counsel at a post-conviction hearing, because (1) the confrontation clauses in U.S. Const. amend. VI and Tenn. Const. art. I, § 9 did not apply, under the circumstances, as a post-conviction proceeding was not a prosecution, and (2) the inmate was able to present the inmate's case through others. Holloway v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 844 (Tenn. Crim. App. Oct. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 255 (Tenn. Mar. 23, 2016).

44. —Videotaped Statements.

In aggravated sexual battery case, the trial court's admitting as evidence, videotaped statements of alleged child victims taken by police officers during their investigation of charges of sexual battery, violated defendant's rights under U.S. Const. amend. 6 and Tenn. Const. art. I, § 9, where there was no showing that the witnesses were under oath, and the only persons present were the witnesses and the police officers, and where the state presented no evidence justifying the use of the statements, but relied upon § 24-7-116(c)(1)(I)(ii) (since repealed). State v. Deuter, 839 S.W.2d 391, 1992 Tenn. LEXIS 550 (Tenn. 1992).

Admission of the video recording of the forensic interview did not violate defendant's constitutional right to confront the witnesses against him because he victim was present at trial and subject to extensive cross-examination; nothing more was constitutionally required. State v. Ackerman, 397 S.W.3d 617, 2012 Tenn. Crim. App. LEXIS 510 (Tenn. Crim. App. July 13, 2012), overruled, State v. Sanders, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

44.5 —Audio-recorded statement.

Audio-recorded statement of a witness recorded by a police detective the day after a shooting was admissible when the witness testified at trial as to having no recollection of the shooting because the trial court determined that the statement was made pursuant to circumstances indicating trustworthiness as defendant did not appear to be under the influence of drugs, was apprehensive, and had asked for but was denied money; the statement was consistent with the other evidence, and defense counsel cross-examined defendant. State v. Moore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. May 15, 2020).

45. —Evidence Received Out of Court.

The verdict must be based upon the evidence and testimony delivered before the jury in court in the presence of the judge and the parties. A juror's statement of additional facts, not put in evidence, but made to the jury after their retirement, which may affect their verdict, will vitiate the verdict, and will be ground for a new trial. Booby v. State, 12 Tenn. 111, 1833 Tenn. LEXIS 23 (1833); Hudson v. State, 17 Tenn. 408, 1836 Tenn. LEXIS 71 (1836); Donston v. State, 25 Tenn. 275, 1845 Tenn. LEXIS 79 (1845); Sam v. State, 31 Tenn. 61, 1851 Tenn. LEXIS 17 (Tenn. Sep. 1851); Nolen v. State, 39 Tenn. 520, 1859 Tenn. LEXIS 266 (1859); Wade v. Ordway, 60 Tenn. 229, 1872 Tenn. LEXIS 480 (1872); Morton v. State, 69 Tenn. 498, 1878 Tenn. LEXIS 125 (1878), criticized, 216 Tenn. 89, 390 S.W.2d 234, 1965 Tenn. LEXIS 560 (1965); Whitmore v. Ball, 77 Tenn. 35, 1882 Tenn. LEXIS 11 (1882); Carter v. State, 77 Tenn. 440, 1882 Tenn. LEXIS 80 (1882), questioned, Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 1959 Tenn. LEXIS 390 (1959) (or for the reading of a newspaper article about the case); Nile v. State, 79 Tenn. 694, 1883 Tenn. LEXIS 126 (1883).

In a case where the State called a gang member as a witness at trial, the witness refused to answer questions or look at documents after taking an oath to testify truthfully, and defendant could have cross-examined the witness, but did not, the trial court did not violate defendant's federal or state confrontation rights when it allowed the Tennessee Bureau of Investigation agent to read the witness's out-of-court statement into evidence. State v. Taylor, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Aug. 31, 2016).

46. —Expert Testimony.

The admission of an expert's opinion based on hearsay evidence not in itself admissible does not violate the confrontation clause of either the United States or Tennessee constitutions so long as the expert providing the opinion is available for cross-examination. State v. Kennedy, 7 S.W.3d 58, 1999 Tenn. Crim. App. LEXIS 136 (Tenn. Crim. App. 1999).

Defendant's confrontation rights were not violated by admission of DNA expert's testimony even though some portions of the testing were conducted by other person's in expert's laboratory. State v. Kennedy, 7 S.W.3d 58, 1999 Tenn. Crim. App. LEXIS 136 (Tenn. Crim. App. 1999).

In a murder case, defendant's confrontation rights were not violated by the admission of an expert's testimony where the expert testified that the procedures for DNA testing were generally accepted within the scientific community as reliable, she routinely supervised the tests performed by the laboratory technicians, she was justified in her reliance on the procedures performed by the laboratory technician, and the laboratory reports contained the particularized guaranties of trustworthiness to keep them from violating a defendant's rights under the Confrontation Clause. Additionally, the defense was able to thoroughly cross-examine the expert as to the samples, procedures, safeguards and results reached in the present case. State v. Lewis, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Mar. 15, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 857 (Tenn. Sept. 25, 2006), aff'd, 235 S.W.3d 136, 2007 Tenn. LEXIS 649 (Tenn. Aug. 17, 2007).

In a murder trial, an expert witness's testimony concerning DNA testing did not violate defendant's right to confrontation; the expert's opinion was an evaluation of the data and she did not communicate any out-of-court statement made by the doctor who performed the DNA analysis. State v. Lewis, 235 S.W.3d 136, 2007 Tenn. LEXIS 649 (Tenn. Aug. 17, 2007).

Excluding deficiencies in the expert's qualifications, as the trial court did here, effectively shielded the expert from the purpose of cross-examination, which was to test the reliability of an expert's opinion; a new trial was necessary because the court was unable to conclude that the error in precluding defendant from cross-examining the State's key witness did not impact the verdict in this case. State v. Zeigler, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 83 (Tenn. Crim. App. Feb. 7, 2019).

47. —Evidence at Preliminary Hearing.

Hearsay statement at trial as to absent witness' statements at preliminary hearing violated right of confrontation where the inability of any witness to recall accurately the entire, word for word proceedings at the preliminary hearing placed grave doubts on the reliability of the evidence, where the statement itself, even if accurately reported, was highly suspect due to the witness' motivation to testify on behalf of the state when the statement was made and due to his inconsistent statements, and where the cross-examination at the preliminary hearing was less than effective. State v. Armes, 607 S.W.2d 234, 1980 Tenn. LEXIS 507 (Tenn. 1980).

Admission of transcript of testimony of deceased witness given at preliminary hearing did not violate defendant's right to confrontation of witnesses. State v. Bowers, 744 S.W.2d 588, 1987 Tenn. Crim. App. LEXIS 2727 (Tenn. Crim. App. 1987).

During defendant's trial for vehicular assault and aggravated vehicular homicide, trial court did not err by admitting testimony of a deceased witness from the preliminary hearing, as the testimony was admissible under the “former testimony” hearsay exception of Tenn. R. Evid. 804(b)(1); defendant's right to confrontation under Tenn. Const. art. I, § 9 was not violated because defendant had an opportunity to cross-examine the witness during the preliminary hearing. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

48. —Testimony Heard in Prior Proceeding.

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, is not excluded by the hearsay rule if the declarant is unavailable as a witness. State v. Causby, 706 S.W.2d 628, 1986 Tenn. LEXIS 828 (Tenn. 1986).

Trial court did not violate an unequivocal rule of law when it admitted the victim's testimony from a preliminary hearing, as defendant had a similar motive to develop the testimony at the preliminary hearing as he would have at trial and the preliminary hearing cross-examination was sufficient to meet the confrontation requirements of Crawford. State v. Echols, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1076 (Tenn. Crim. App. Nov. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 236 (Tenn. Mar. 13, 2015).

Because defendant had the opportunity to cross-examine the victim regarding the information in the order of protection and failed to do so, the admission of the petition did not violate his confrontation rights. State v. Smoot, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 739 (Tenn. Crim. App. Oct. 1, 2018).

49. —Testimony Heard in Former Trial.

In prosecution for armed robbery where defendant raised the defense of alibi, admission of testimony to the effect that defendant was person who committed a similar robbery the previous day did not violate defendant's constitutional rights even though trial of defendant for first robbery resulted in a mistrial. Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159, 1966 Tenn. LEXIS 499 (1966).

Testimony of codefendant given at defendant's preliminary hearing in Oklahoma on murder charges in that state was admissible in prosecution for grand larceny and first degree murder in this state under former testimony exception to hearsay rule. State v. Howell, 868 S.W.2d 238, 1993 Tenn. LEXIS 408 (Tenn. 1993), cert. denied, Howell v. Tennessee, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687, 1994 U.S. LEXIS 2487 (1994).

The testimony of a codefendant given at the first trial of a criminal case was admissible at a retrial of the case where the codefendant was not available because he invoked his fifth amendment privilege and refused to testify. State v. Bilbrey, 912 S.W.2d 187, 1995 Tenn. Crim. App. LEXIS 549 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 758 (Tenn. Dec. 4, 1995).

Defendant's confrontation clause rights were not violated where the trial court allowed the state to read into the sentencing record on resentencing the former testimony of two witnesses, each of whom testified at defendant's first trial that he had offered to pay them to kill his wife, because defendant had an opportunity to confront both witnesses during his first trial. State v. Stephenson, 195 S.W.3d 574, 2006 Tenn. LEXIS 454 (Tenn. 2006).

Defendant's constitutional right to confront a witness under U.S. Const. amend. 6 and Tenn. Const. art. I, § 9 was violated during his second trial by the state's presentation of a key witness's redacted previous testimony because the state failed to adequately prove that it had made a good faith effort to locate the missing witness' testimony. State v. Sharp, 327 S.W.3d 704, 2010 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Feb. 22, 2010).

50. — —Deceased Witness.

The deposition of a witness given before the committing magistrate, in the presence of the accused, with an opportunity for cross-examination, may be read in evidence against the accused upon the trial, if the witness be then dead. Johnston v. State, 10 Tenn. 58, 1821 Tenn. LEXIS 3 (1821); Beets v. State, 19 Tenn. 106, 1838 Tenn. LEXIS 26 (1838); Bostick v. State, 22 Tenn. 344, 1842 Tenn. LEXIS 99 (1842); State v. Miller, 69 Tenn. 596, 1878 Tenn. LEXIS 143 (1878).

The testimony of a witness before the committing court, and in the presence of the accused, may be proved on the trial, if the witness be then dead. Kendrick v. State, 29 Tenn. 479, 1850 Tenn. LEXIS 19 (1850); Wade v. State, 66 Tenn. 80, 1872 Tenn. LEXIS 454 (1872); Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409, 1895 U.S. LEXIS 2131 (1895).

The testimony of a deceased witness on a former trial may be proved on a subsequent trial. Planters' Bank v. Massey, 49 Tenn. 360, 1871 Tenn. LEXIS 18 (1870); First Nat'l Bank v. Oldham, 74 Tenn. 718, 1881 Tenn. LEXIS 203 (1881); Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409, 1895 U.S. LEXIS 2131 (1895).

The substance of the testimony of a deceased witness, or the substance of the whole of it on any particular subject, may be proved. Kendrick v. State, 29 Tenn. 479, 1850 Tenn. LEXIS 19 (1850); Planters' Bank v. Massey, 49 Tenn. 360, 1871 Tenn. LEXIS 18 (1871).

The testimony of the deceased witness may be proved by a person swearing from his own memory, or from his memory as refreshed from reading his written notes, or if he cannot recollect the facts detailed in the notes, they may be proved by the introduction of the notes themselves, if their correctness and accuracy is sworn to by him. Rogers v. Burton, 7 Tenn. 108, 1823 Tenn. LEXIS 12 (1823); Beets v. State, 19 Tenn. 106, 1838 Tenn. LEXIS 26 (1838), questioned, White v. Conly, 82 Tenn. 51, 1884 Tenn. LEXIS 104, 52 Am. Rep. 154, 52 Am. Rep. 154 (1884); First Nat'l Bank v. Oldham, 74 Tenn. 718, 1881 Tenn. LEXIS 203 (1881).

The exact words of the deceased witness need not be proved, nor even the substance of all he stated. It is sufficient to prove, by persons who heard it, the substance of the testimony of the deceased witness on the particular subject sought to be proved. But all the witness remarked on any one subject must be taken together, and a party should not be allowed to prove a statement made by a deceased witness, unless he can also give the cross-examination upon the same subject. Kendrick v. State, 29 Tenn. 479, 1850 Tenn. LEXIS 19 (1850); Planters' Bank v. Massey, 49 Tenn. 360, 1871 Tenn. LEXIS 18 (1871); Wade v. State, 66 Tenn. 80, 1872 Tenn. LEXIS 454 (1872).

51. — —Absence or Nonresidence of Witness.

The testimony of a living witness on a former trial is not admissible because his attendance could not be had, or because of his absence and nonresidence. Scruggs v. Davis, 40 Tenn. 664, 1859 Tenn. LEXIS 195 (1859); Hall v. State, 65 Tenn. 522, 1873 Tenn. LEXIS 399 (1873).

Depositions taken in a case pending before a justice of the peace may, on appeal, be read as evidence in the circuit court. Hawkins v. McNamara, 48 Tenn. 352, 1870 Tenn. LEXIS 66 (1870); Bailey v. Brooks, 58 Tenn. 1, 1872 Tenn. LEXIS 217 (1872).

The introduction of testimony of unavailable witness given at prior trial under oath and subject to cross-examination, does not violate the confrontation clauses of the state or federal constitutions where the issues are substantially the same as those involved in the prior proceeding. Dykes v. State, 589 S.W.2d 384, 1979 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. 1979).

Trial court did not abuse its discretion in determining the witness was unavailable because nearly 20 years had passed between the first trial and the State's attempts to locate the witness before the second trial, an agent attempted to locate the witness using numerous search tools, including the NCIC database, which he explained was a national search through the FBI, the agent developed one unsuccessful lead through a telephone number, and the agent said he did not have information about the witness's family members and was unable to contact them to gain more information. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 21, 2019).

52. —Hearsay.

In a criminal prosecution for aggravated rape, the victim's medical records containing her out-of-court statements to emergency room medical personnel that she had been raped were nontestimonial and properly admitted under Tenn. R. Evid. 803(4); although the victim did not testify, defendant's right to confrontation under Tenn. Const. art. I, § 9 was not violated. State v. Cannon, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

In a criminal prosecution for aggravated rape, the victim's statements describing the assault to the police officers and her statements to the sexual assault nurse examiner were testimonial and admitted in violation of defendant's right of confrontation under Tenn. Const. art. I, § 9; defendant had no prior opportunity to cross-examine the victim and she did not testify at trial. State v. Cannon, 254 S.W.3d 287, 2008 Tenn. LEXIS 278 (Tenn. Apr. 29, 2008).

Defendant's conviction for the aggravated rape of a child was proper because the victim's statement at issue qualified for the excited utterance exception to the general rule prohibiting hearsay. Accordingly, defendant's confrontation rights were not violated by the admission of the nontestimonial excited utterance of the victim. State v. Ramos, 331 S.W.3d 408, 2010 Tenn. Crim. App. LEXIS 195 (Tenn. Crim. App. Mar. 3, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 754 (Tenn. Aug. 26, 2010).

Defendant's convictions for second-degree murder and attempted rape were proper even though the trial court committed constitutional error in admitting a deputy's testimony about the victim's statement identifying her attacker and describing the attack, even if the statements were excited utterances; by virtue of her death, the victim was unavailable for trial and could not be cross-examined and the victim died long before law enforcement's investigations led to defendant's indictment. However, the admissible statements made by the victim to her neighbor and to the deputy were similar; thus, the trial court's error was harmless beyond a reasonable doubt. State v. Parker, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 795 (Tenn. Crim. App. Sept. 22, 2010), aff'd in part, rev'd in part, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011).

In defendant's attempted rape case, the trial court's admission of the victim's statements to a deputy violated defendant's confrontation rights because they were made after the 911 call had been made, after the victim had already spoken with a witness, and after defendant had left the premises; they were made in response to questions by the deputy aimed at discovering who the assailant was for apprehension purposes. However, the error was harmless because DNA evidence linked defendant to the attack. State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011).

As it was not apparent that defendant's wife intended to declare his guilt by arranging an interview with police officers, her conduct was not an “assertion” and thus did not qualify as hearsay; therefore, the testimony of the officers relating to her conduct did not violate defendant's right of confrontation. State v. Sexton, 368 S.W.3d 371, 2012 Tenn. LEXIS 377 (Tenn. May 29, 2012).

Trial court did not abuse its discretion in admitting 911 calls into evidence where the callers acted with haste in reporting the abduction, the dispatcher elicited information to enable law enforcement to locate the assailant and ensure the victim's safety, and thus, the calls were non-testimonial for purposes of the Confrontation Clause. State v. Duff, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1068 (Tenn. Crim. App. Nov. 24, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 317 (Tenn. Apr. 10, 2015).

Admitting a witness's prior written statement and prior testimony when the witness said the witness could not remember the subject of the prior statement and testimony did not violate defendant's right of confrontation because defendant was able to cross-examine the witness. State v. Davis, 466 S.W.3d 49, 2015 Tenn. LEXIS 463 (Tenn. June 3, 2015).

Chief medical examiner's testimony did not violate defendant's right of confrontation because, although she did not perform the autopsy, she could testify regarding her independent judgment, even if that judgment was based upon the inadmissible autopsy report of another doctor. State v. Hutchinson, 482 S.W.3d 893, 2016 Tenn. LEXIS 83 (Tenn. Feb. 5, 2016).

Without the requisite findings of “good cause” to justify to denial of defendant's right to confront and cross-examine the declarants and reliability, defendant's community corrections sentence could not be revoked based on hearsay statements. State v. McGill, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 512 (Tenn. Crim. App. July 18, 2016).

Admission of codefendant's statements did not violate the Confrontation Clause of the Sixth Amendment or Tenn. Const. art. I, § 9, as the statements were not hearsay and were admissible as admissions by a party-opponent. State v. Pinegar, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 28, 2016), modified, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 386 (Tenn. Crim. App. May 16, 2017).

Confrontation Clause did not apply to the trial court's admission of portions of a transcript of a proceeding that did not qualify as hearsay. State v. Chick, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. July 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 805 (Tenn. Nov. 16, 2017).

Trial court erred in revoking defendant's probation because it improperly allowed statements by the victim to an officer, which were hearsay; the trial court failed to make any finding of good cause to justify the denial of defendant's confrontation rights, and the State offered no explanation as to why the alleged victim was not present as a witness. State v. Washington, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. Sept. 5, 2017).

Officer's testimony about the anonymous complainant's statements was not being offered for the truth of the matter asserted, that defendant was armed, and thus the testimony was not inadmissible hearsay; as to defendant's argument that the testimony violated his confrontation rights, he waived this argument by not having specifically objected on this ground under TRAP 36, but in any event, the issue of confrontation was not applicable. State v. Milon, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 923 (Tenn. Crim. App. Oct. 19, 2017).

Testimony of the 12-year-old victim's aunt that the child told her that defendant had knocked down his bedroom door did not violate her right to confront the child on cross-examination because, despite defendant's claims to the contrary, the trial transcript showed that the child testified about his conversation with his aunt on direct examination and that defendant had an opportunity to cross-examine him about that testimony; thus, defendant was not entitled to plain error relief regarding the admission of that testimony. State v. Grant, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Jan. 4, 2018).

In a case in which a confidential informant (CI) purchased crack cocaine from defendant, the statements of the CI's wife, who was accompanying him during the transactions, did not violate defendant's right to confrontation because she never discussed the purchase of cocaine with defendant; and the State did not offer any of her recorded statements for the truth of the matter asserted. State v. Webster, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 25, 2018).

Defendant's right to confrontation was not violated by the corporal's and the confidential informant's testimony regarding the search of the confidential informant's wife because the appellate court could discern no conduct on the part of the wife that constituted a non-verbal assertion that she was not in possession of any controlled substances prior to meeting with defendant; and, although defendant complained that he was not afforded the opportunity to cross-examine her regarding her credibility or veracity, both the corporal and the confidential informant testified regarding the search and were subject to cross-examination by defendant. State v. Webster, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 25, 2018).

Trial court did not err by admitting into evidence a witness's statement to the police that led to the discovery of one of the victims because neither investigator provided an out-of-court statement made by the witness during her interview, and because the State did not offer hearsay evidence, defendant's confrontation rights were not violated. State v. Cool, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 12, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 58 (Tenn. Jan. 18, 2019).

Investigator's testimony that another analyst had verified his identification of defendant's palm print necessarily included that analyst's statement that the investigator's identification was accurate or true, and both the statement and supporting documents qualified as testimonial; because the verifying analyst did not testify at trial, defendant's Confrontation Clause rights were implicated, but as the evidence was more than sufficient against defendant, the admission of this testimony was harmless. State v. Kiser, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. June 6, 2019).

53. — —Dying Declarations.

The admission of dying declarations is not a violation of the constitutional provision giving the accused “the right . . . to meet the witnesses face to face” and “to have compulsory process for obtaining witnesses in his favor.” Anthony v. State, 19 Tenn. 265, 1838 Tenn. LEXIS 55 (1838); Baxter v. State, 83 Tenn. 657, 1885 Tenn. LEXIS 91 (1885).

The principle asserted in this constitutional provision and the principle allowing the admission of dying declarations are coeval rules of the common law. The principle in the constitution was inserted, because it had been maintained, with difficulty, against the crown, by the popular party. The principle allowing the admission of dying declarations prevailed, and had never been debated between the crown and the people, and hence was omitted. Anthony v. State, 19 Tenn. 265, 1838 Tenn. LEXIS 55, 33 Am. Dec. 143 (1838); Baxter v. State, 83 Tenn. 657, 1885 Tenn. LEXIS 91 (1885).

The sense of impending death may be shown by the language of the deceased, or inferred from the character of the wound, or set up by the testimony of physicians or other attendants. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918).

Constitutional right of an accused to face his witnesses is not encroached by admission into evidence of dying declarations. Hawkins v. State, 220 Tenn. 383, 417 S.W.2d 774, 1967 Tenn. LEXIS 466 (1967).

Declarations of one whose death subsequently results from an unlawful act, made while in extremis and fully conscious of this condition, and with belief in his impending death, which tend to implicate his assailant, a person accused of the homicide, are admissible as evidence in a trial for the decedent's homicide. Hawkins v. State, 220 Tenn. 383, 417 S.W.2d 774, 1967 Tenn. LEXIS 466 (1967).

54. — — —Admissibility.

The admissibility of dying declarations is a question for the court without the aid of a jury. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918).

The competency of a dying declaration is ordinarily a mixed question of law and fact. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918).

Where exception below challenged the entire dying declaration most of which was undoubtedly competent, assignment of error as to part of such declaration, on appeal, will be overruled, because the incompetent portions should have been particular or specifically pointed out in the court below. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918). See Anderson v. Akard, 83 Tenn. 182, 1885 Tenn. LEXIS 40 (1885).

Where the victim was shot during a robbery of his antiques store, and he told police he knew that defendant was involved in the offenses, the trial court did not err by admitting this statement at defendant's murder trial as a dying declaration under Tenn. R. Evid. 804; while the statement was testimonial, its admission did not violate defendant's confrontations rights, because if the victim had lived he would have been permitted to offer this testimony at trial. State v. Lewis, 235 S.W.3d 136, 2007 Tenn. LEXIS 649 (Tenn. Aug. 17, 2007).

55. — —Excited Utterance.

Admission of a 911 call by the victim's mother did not violate defendant's right to confrontation, as the evidence was an excited utterance, made while the mother appeared to be alarmed and concerned about the safety of herself and the victim, and therefore was admissible as a hearsay exception. State v. Shettles, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 719 (Tenn. Crim. App. Sept. 23, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 139 (Tenn. Feb. 22, 2017).

56. — — —Weight as Evidence.

In a prosecution for murder, instruction that a dying declaration introduced in evidence was to be considered just as the evidence of any witness examined before the jury is reversible error; for a dying declaration is not put on the same plane as testimony of a witness appearing before the jury. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918).

Dying declarations are in the nature of hearsay evidence, limited to the res gestae, admissible only in homicide cases under an exception to the general rule, but they are apt to be given by the jury greater value than the testimony of witnesses, and should be weighed in consideration of the fact that they are made when declarant is not in condition to speak calmly, and generally made to his friends out of the presence of the accused, so that facts favorable to the accused are not brought out. Pearson v. State, 143 Tenn. 385, 226 S.W. 538, 1920 Tenn. LEXIS 26 (1920).

57. — — —Instructions of Court.

In a prosecution for homicide, where the dying declaration of the deceased was admitted in evidence, it was reversible error for the court to omit to instruct the jury on the weight to be given to such declaration, even though no request for such instruction was made. Pearson v. State, 143 Tenn. 385, 226 S.W. 538, 1920 Tenn. LEXIS 26 (1920).

58. — — —Review.

While the supreme court has the power to review the action of the trial judge in holding a dying declaration to be admissible, it seldom does so. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918).

Where the fact of the declarant's condition depends upon the credibility of witnesses, great weight is to be attached to the conclusion of the trial judge in holding a dying declaration to be admissible, and the supreme court, on appeal, will not reverse the case unless there is a manifest error. Dickason v. State, 139 Tenn. 601, 202 S.W. 922, 1918 Tenn. LEXIS 11 (1918).

Defendant's rights under the Confrontation Clause were not violated by the admission of an investigator's testimony concerning a statement one of the parties made to him where defendant acknowledged that two of the three parties present at the apartment during the execution of the search warrant were called as witnesses at trial, the third person was a female, and the investigator identified the declarant as a male, and therefore the declarant was available at trial and subject to cross-examination. State v. Doria, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 622 (Tenn. Aug. 17, 2016).

59. —Impeachment.

Trial court's refusal to allow defendant to impeach codefendant's former testimony with evidence that she later recanted violated his confrontation rights. State v. Howell, 868 S.W.2d 238, 1993 Tenn. LEXIS 408 (Tenn. 1993), cert. denied, Howell v. Tennessee, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687, 1994 U.S. LEXIS 2487 (1994).

The trial court erred by refusing to permit defendant to cross-examine a detective about certain pretrial statements of defendant, in order to show the detective's bias. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

In a murder case, defendant was not entitled to relief on his allegations of a violation of his confrontation rights by the trial court's refusal to allow him to impeach an eyewitness with the testimony of another witness about an alleged threat, because defendant never proffered the testimony of the other witness. State v. Page, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. Aug 26, 2004), rev'd, 184 S.W.3d 223, 2006 Tenn. LEXIS 37 (Tenn. 2006).

Even if the court erred when it limited cross-examination, the error was harmless because the issue of the accomplice's misrepresentations was sufficiently before the jury; on direct examination, the accomplice testified that he would lie about his exploits, particularly to women whom he wished to impress, in order to cover up his disabilities, and he agreed that he lied to defendant about owning a motorcycle when he did not. State v. Holmes, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. July 13, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 900 (Tenn. Oct. 15, 2015).

Defendant's cross-examination on an officer's personnel record was not unduly limited because (1) the issue was irrelevant, and (2) defendant was allowed to explore the fact that the officer had been engaged in evicting defendant's family when stating defendant was a possible suspect in an aggravated robbery. State v. Bumpas, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 803 (Tenn. Crim. App. Sept. 1, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 11 (Tenn. Jan. 17, 2018).

Trial court abused its discretion by not allowing defense counsel to cross-examine witnesses about possible bias as a visa application by one witness was relevant to show possible bias against defendant and the jury could have inferred that another witness could have been motivated to lie or exaggerate claims against defendant, even though the evidence of the witnesses being illegal immigrants may have been unfairly prejudicial. However, the error was harmless beyond a reasonable doubt given all the evidence against defendant. State v. Gonzales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 783 (Tenn. Crim. App. Oct. 18, 2018).

60. —Witnesses for Accused.

The provisions giving the accused the right “to meet the witnesses face to face” has reference to the witnesses for the state, and not the witnessess for the accused himself. The accused may, by order of court and upon notice to the district attorney, take the depositions of witnesses. Petty v. State, 72 Tenn. 326, 1880 Tenn. LEXIS 23 (1880); Tip v. State, 82 Tenn. 502, 1884 Tenn. LEXIS 152 (1884).

61. Coconspirator Statement.

Non-testifying codefendants' statements circumstantially implicated defendant by placing him alone with the minor victim at the time of the injury, plus codefendants' statements placed the children on the sofa at the time of the injury, although defendant said they were on a bed; defendant was unable to cross-examine the non-testifying codefendants and the trial court erred by admitting codefendants' statements, which error was prejudicial because the inconsistencies in their statements were central to establishing defendant's guilt for aggravated child abuse and neglect. State v. Love, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 667 (Tenn. Crim. App. Sept. 7, 2016).

62. —Presentence Statements After Conviction.

A defendant's right to meet witnesses face to face was not violated by the reading, without objection by his counsel, of statements of witnesses after the defendant's plea of guilty and before his sentencing. Davis v. Bomar, 344 F.2d 84, 1965 U.S. App. LEXIS 5844 (6th Cir.), cert. denied, 382 U.S. 883, 86 S. Ct. 177, 15 L. Ed. 2d 124, 1965 U.S. LEXIS 504 (1965).

63. —Probation Proceedings.

Since the issue in a probation revocation proceeding is not the guilt or innocence of the defendant, the right to confront and cross-examine adverse witnesses is not absolute and may be relaxed under certain circumstances. However, since a probationer's conditional freedom from incarceration is at risk, he must be afforded due process in the revocation proceeding. State v. Wade, 863 S.W.2d 406, 1993 Tenn. LEXIS 358 (Tenn. 1993).

Where revocation of defendant's probation was based solely upon an unreliable laboratory drug screen test report without any good cause being shown or found to exist to deny the defendant the right to confront and cross-examine a person with knowledge about the testing done, trial court erred in revoking probation. State v. Ricker, 875 S.W.2d 687, 1994 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1994).

Trial court did not err in revoking defendant's probation based on an affidavit from a doctor stating that a specimen taken from defendant tested positive for cocaine; the affidavit met the requirements of T.C.A. § 40-35-311. While defendant did not have an opportunity to cross-examine the affiant, a probation revocation was not a criminal proceeding and his right to confrontation under Tenn. Const. art. I, § 9 did not apply. State v. Walker, 307 S.W.3d 260, 2009 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Aug. 10, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 227 (Tenn. Jan. 25, 2010).

64. Right to Compulsory Process.

The accused is entitled to subpoena and attachment for contempt as compulsory process for obtaining his witnesses. The penalty for failure to attend may induce the witness to attend; but it is only by the attachment for contempt that the attendance of an unwilling witness may be compelled or enforced. Nelson v. Ewell, 32 Tenn. 271, 1852 Tenn. LEXIS 61 (1852).

The right of the accused “to have compulsory process for obtaining witnesses in his favor” is a provision that may not imperatively demand their presence in any case, yet where the witnesses are within the reach of the process of the court, the compulsion of the accused to take a mere written statement as the equivalent of the personal presence of the witness contemplated by the use of the process guaranteed to him by the constitution ill accords with the spirit of that right, and the view that such statement cannot be substituted for the testimony of the witness given personally in court is certainly more in accord with the fair implications of that provision than the opposite view. State v. Baker, 81 Tenn. 326, 1884 Tenn. LEXIS 46 (1884); Louisville & N.R.R. v. Voss, 109 Tenn. 718, 72 S.W. 983, 1902 Tenn. LEXIS 103 (1902).

If a prospective witness is or probably will be a material witness the defendant has a constitutional right to have compulsory process for such witness and the trial judge has no discretion in the matter, however where it appears that there may be an abuse of process the trial judge may refuse to issue the subpoena until informed of the nature of the testimony of the witness. Bacon v. State, 215 Tenn. 268, 385 S.W.2d 107, 1964 Tenn. LEXIS 563 (Tenn. Dec. 11, 1964).

Where trial judge refused compulsory process for witnesses requested by defendant acting upon information that the requested witnesses had no knowledge of the facts under investigation, the burden shifted to the defendant to inform the trial judge of the nature of the testimony to be expected from such prospective witnesses so that a determination could be made as to whether the prospective witnesses were material witnesses. Bacon v. State, 215 Tenn. 268, 385 S.W.2d 107, 1964 Tenn. LEXIS 563 (Tenn. Dec. 11, 1964).

The exercise of authority in such manner as to deprive an accused of a substantive procedural right to compel attendance of witnesses guaranteed by the federal and state constitutions is an essential illegality committed within actual powers which will authorize relief by certiorari. State v. Womack, 591 S.W.2d 437, 1979 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1979).

The right to compulsory process is not unlimited. State v. Smith, 639 S.W.2d 677, 1982 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. 1982).

The defendant has a fundamental constitutional right to compulsory process for the obtaining of witnesses, and when the witness is shown to be material, the trial court has no discretion as to the issuance of such process. A reasonable opportunity must be afforded to make the process effective and, if necessary, a reasonable continuance of the trial should be granted. State v. Morgan, 825 S.W.2d 113, 1991 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. 1991), appeal denied, 1992 Tenn. LEXIS 127 (Tenn. Jan. 27, 1992).

Where the record did not contain any indication that discovery of an unavailable witness was probable nor was there any complaint that the best efforts were not being made by those who might be charged with a duty to serve process, the trial court did not abuse its discretion in denying a continuance to find the witness. State v. Morgan, 825 S.W.2d 113, 1991 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. 1991), appeal denied, 1992 Tenn. LEXIS 127 (Tenn. Jan. 27, 1992).

Trial court's erroneous refusal to allow defense counsel to cross-examine the murder victim's spouse about the spouse's prior inconsistent statements to police, which contained no reference to spouse's affair, did not entitle defendant to relief as the statements had no impact on the jury's verdicts in that the spouse's alibi was established by several other witnesses and there was absolutely no proof (other than motive) tying the spouse to the victim's murder, either by the spouse's own hands or through the actions of another. State v. Bell, 480 S.W.3d 486, 2015 Tenn. LEXIS 720 (Tenn. Sept. 10, 2015), cert. denied, Bell v. Tennessee, 195 L. Ed. 2d 221, 136 S. Ct. 2006, — U.S. —, 2016 U.S. LEXIS 3192 (U.S. 2016).

Trial court did not abuse its discretion by refusing to compel a codefendant to testify, as defendant did not specify what relevant non-incriminating information he would have, or could have, elicited form codefendant. State v. Cunningham, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 26 (Tenn. Crim. App. Jan. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 402 (Tenn. May 14, 2015).

Defendant failed to show that his right to compulsory process was violated where he asked that the witnesses be subpoenaed, the trial court ensured that the witnesses were subpoenaed, and defendant made no showing that the testimony of the potential witnesses was material and admissible. State v. Logan, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 601 (Tenn. Crim. App. July 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 963 (Tenn. Nov. 24, 2015).

Although the trial court violated defendant's right to compulsory process in striking a witness's testimony, the error was harmless, as the State relied on a theory of criminal responsibility and the witness's testimony, even if included, did little to exonerate defendant. State v. Jackson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 891 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 320 (Tenn. May 5, 2016).

Postconviction court erred by failing to grant petitioner's physician's motion to quash a judicial subpoena compelling him to testify at a hearing on behalf of petitioner because he was statutorily exempt from subpoena to the hearing but was subject to subpoena to a deposition. The court further held that it saw no reason why petitioner could not participate in the physician's deposition via telephone, video, or some other media, and therefore petitioner's inability to leave prison to attend a deposition was not sufficient justification for denying the physician's motion to quash. Sexton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. Nov. 30, 2018).

65. Right to Speedy Trial.

In all criminal prosecutions by indictment or presentment, the accused hath the right to a speedy public trial, and where the state fails to provide a prosecuting attorney, he is entitled to his discharge. The omission of the state to provide a prosecuting attorney cannot render Tenn. Const. art. I, § 9 noneffective, nor does it furnish ground for keeping the prisoner longer in confinement. State v. Sims, 1 Tenn. 253, 1807 Tenn. LEXIS 27 (1807); Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, 1914 Tenn. LEXIS 122, 1915E L.R.A. (n.s.) 363 (1915). The accused is entitled to a speedy public trial by an impartial jury. State v. Solomons, 14 Tenn. 359, 14 Tenn. 360, 1834 Tenn. LEXIS 93 (Tenn. Mar. 1834); Dula v. State, 16 Tenn. 511, 1835 Tenn. LEXIS 117 (1835); Major v. State, 36 Tenn. 597, 1857 Tenn. LEXIS 65 (1857).

One charged in a state court with an offense against the state laws cannot complain that he was not given a speedy trial as guaranteed by U.S. Const. amend. 6, since all of the first ten amendments to the United States constitution are binding only on the United States, and not on the respective states. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 1920 Tenn. LEXIS 6 (1920).

It is not every delay in the trial of an indictment that amounts to denial of the constitutional right to a speedy trial. State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168, 1951 Tenn. LEXIS 334 (1951).

If the question of not being granted a speedy trial was to be raised at all it should have been raised at the time of the trial, and it could not be raised at a subsequent time in a habeas corpus proceeding. State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168, 1951 Tenn. LEXIS 334 (1951).

Where eleven defendants were tried for rape with several of the arrests being made in May 1965 and a continuance was granted in December 1965 to January 1966, defendants were not denied a fair and speedy trial by the delay where it was apparent that trial could not go forward earlier because of the need for police investigation, the process of appointing counsel to represent defendants and the necessity of affording counsel adequate time to prepare for trial. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1, 1969 Tenn. LEXIS 471 (1969).

Where defendants were first indicted on July 22, 1969 but such indictment was quashed because of improper indorsement by grand jury foreman and second indictment returned on October 17, 1969 was nolle prossed by state because of clerical error in language, dismissal of third indictment returned on November 29, 1969 upon motion of defendants on ground that defendants had been oppressively and vexatiously prosecuted contrary to constitutional guaranties of speedy trial would be reversed and case remanded for trial where record did not show that any right or interest secured by speedy trial clauses had been lost due to state action and no delay by state to detriment of defendants appeared. State v. Gossage, 4 Tenn. Crim. App. 222, 470 S.W.2d 30, 1971 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. 1971).

Two year delay in bringing federal prisoner to trial in state court on state charges was not denial of right to speedy trial where defendant lost services of first counsel and had previously made request for trial but none of defendant's witnesses had died or become unavailable and nothing in the record indicated that defendant's new counsel was in any way hindered in trial of the case. State v. Bishop, 493 S.W.2d 81, 1973 Tenn. LEXIS 498 (Tenn. 1973).

In determining whether a defendant has been denied his right to a speedy trial, four factors to be considered are: the length of the delay; the reason for the delay; the defendant's repeated assertion of the right; prejudice to the defendant. Trigg v. Tennessee, 507 F.2d 949, 1974 U.S. App. LEXIS 5697 (6th Cir. Tenn. 1974), cert. denied, 420 U.S. 938, 95 S. Ct. 1148, 43 L. Ed. 2d 414, 1975 U.S. LEXIS 697 (1975); Cox v. State, 550 S.W.2d 954, 1976 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1976); Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977); Tillery v. State, 565 S.W.2d 509, 1978 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1978); State v. Blackmon, 701 S.W.2d 228, 1985 Tenn. Crim. App. LEXIS 3183 (Tenn. Crim. App. 1985); State v. Kolb, 755 S.W.2d 472, 1988 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. 1988); State v. Blackmon, 701 S.W.2d 228, 1985 Tenn. Crim. App. LEXIS 3183 (Tenn. Crim. App. 1985); State v. Kolb, 755 S.W.2d 472, 1988 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. 1988).

In proceeding for revocation of suspended sentence, court held that a probation revocation proceeding is a continuation of the criminal prosecution, and as such, the defendant has a constitutional right to a speedy trial on the offense of violation of the terms of probation. Allen v. State, 505 S.W.2d 715, 1974 Tenn. LEXIS 532 (Tenn. 1974).

Where defendant was not arrested until four days after the crime, the evidence clearly showing that efforts were initiated to locate him within a matter of hours after the crime, there was no prejudice to his right to a speedy, public, fair and impartial trial. Wright v. State, 512 S.W.2d 650, 1974 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1974).

Where the supreme court on appeal was unable to judge whether defendant was denied right to a speedy trial due to fact that a full and complete record was not made or transmitted on appeal, the case was remanded with directions to the clerk to supply any minute entries which had not been entered on the record. State v. Nance, 521 S.W.2d 814, 1975 Tenn. LEXIS 700 (Tenn. 1975).

In order to invoke the right to a speedy trial there must be a formal charge and where one year elapsed between the purported offense of selling marihuana with which defendant was charged and the date of the indictment, there was no denial of the right to a speedy trial. Boswell v. State, 528 S.W.2d 825, 1975 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App. 1975).

Under almost any conceivable circumstances, ten years in such a delay between indictment and trial that to deny repeated requests for disposition of the case on grounds that the accused is insane violates his right to a speedy trial under the constitution of Tennessee and U.S. Const. amend. 6. Cox v. State, 550 S.W.2d 954, 1976 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1976).

Where about one year elapsed between defendants' arrests and their trial but they showed no prejudice to themselves from the delay, had made no effort to have their cases heard speedily and asserted their right for the first time on the trial day, the claim of denial of a speedy trial was overruled. Mattress v. State, 564 S.W.2d 678, 1977 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1977).

In all criminal cases, the state is under an affirmative duty to speedily try the accused. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977).

Where the state inexplicably delayed bringing defendant to trial for over two years during which time two defense witnesses became unavailable, and the case was a closed one so that the testimony of each individual witness took on added significance, the delay was prejudicial to the defendants and violated their right to a speedy trial. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977).

Defendant's right to a speedy trial was not violated by 10 month delay between bind over order and return of indictment where he was out on bond during the period, his defense was not impaired, he did not assert the right to speedy trial until seven months after indictment and the delay was occasioned by a case backlog which led to the creation of a new criminal court division. Tillery v. State, 565 S.W.2d 509, 1978 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1978).

The most crucial inquiry in deciding whether a defendant has been denied a speedy trial is whether the delay has prejudiced him. Tillery v. State, 565 S.W.2d 509, 1978 Tenn. Crim. App. LEXIS 293 (Tenn. Crim. App. 1978).

The invocation of the speedy trial provisions requires the actual restraints imposed by the arrest and holding to answer a criminal charge, or formal indictment or presentment. State v. Northcutt, 568 S.W.2d 636, 1978 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1978).

Prior to formal accusation, the defendant's rights against prosecutorial delay are protected by the statute of limitations. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

The balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, 1972 U.S. LEXIS 34 (1972), is the method to determine whether a defendant's right to a speedy trial was violated. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

Period of delay of four and one-half months was not presumptively prejudicial. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

Where a 26-month delay between indictment and trial was the product of “human error” on the part of corrections officials and was not unavoidable, defendant's right to a speedy trial was violated. State v. Wallace, 648 S.W.2d 264, 1980 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. 1980).

The right to a speedy trial was not violated where the court could not find that defendant was impeded in any way in his ability to make a proper defense or suffered in any other manner to any great extent in the relatively short period between the time of his arrest and the conclusion of his trial. State v. Wilcoxson, 772 S.W.2d 33, 1989 Tenn. LEXIS 143 (Tenn. 1989), rehearing denied, 772 S.W.2d 33, 1989 Tenn. LEXIS 316 (Tenn. 1989), cert. denied, Wilcoxson v. Tennessee, 494 U.S. 1074, 110 S. Ct. 1798, 108 L. Ed. 2d 799, 1990 U.S. LEXIS 1695 (1990).

The return of a presentment, whether sealed or unsealed, whether the accompanying capias is executed or unexecuted, is a formal accusation that engages constitutional speedy trial provisions. State v. Wood, 924 S.W.2d 342, 1996 Tenn. LEXIS 303 (Tenn. 1996).

Prejudice to the accused is the most important factor in a determination of whether a defendant has been deprived of his right to a speedy trial. State v. Wood, 924 S.W.2d 342, 1996 Tenn. LEXIS 303 (Tenn. 1996).

Defendant who deliberately chose to forgo a speedy trial request, hoping that the charges against him would “die of neglect,” acquiesced in the state's failure to bring him to trial, and was therefore not deprived of his right to a speedy trial under the federal or state constitution. State v. Wood, 924 S.W.2d 342, 1996 Tenn. LEXIS 303 (Tenn. 1996).

The trial court did not abuse its discretion in finding that defendant's right to a speedy trial was violated by a delay of almost 25 years from the date defendant was indicted for rape to the day the charge was dismissed. State v. Jefferson, 938 S.W.2d 1, 1996 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. 1996).

A five-year delay from the commission of the offense to defendant's arrest raised due process concerns requiring analysis under the federal and state constitutions. State v. Utley, 956 S.W.2d 489, 1997 Tenn. LEXIS 571 (Tenn. 1997).

Defendant's right to a speedy trial was triggered when he was served with an arrest warrant and arrested, not when the warrant was issued, five years earlier. State v. Utley, 956 S.W.2d 489, 1997 Tenn. LEXIS 571 (Tenn. 1997).

Delay of approximately eight months between defendant's arrest and the date his motion for speedy trial was argued was not presumptively prejudicial. State v. Utley, 956 S.W.2d 489, 1997 Tenn. LEXIS 571 (Tenn. 1997).

In determining whether there has been a violation of the constitutional right to a speedy trial, only the time between the commencement of the adversarial proceeding and the commencement of the trial will be considered; a delay between the commission of the offense and the commencement of the adversarial proceeding does not violate an accused's right to a speedy trial. State v. Carico, 968 S.W.2d 280, 1998 Tenn. LEXIS 250 (Tenn. 1998).

Two-year delay between defendant's indictment and the state's filing of notice of intent to seek the death penalty, and the four-year delay between his indictment and his trial, did not violate defendant's right to a speedy trial. While the length of the delay was presumptively prejudicial, defendant's failure to assert his right to a speedy trial and the lack of prejudice supported a finding of no error. State v. Berry, 141 S.W.3d 549, 2004 Tenn. LEXIS 659 (Tenn. 2004), writ denied, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 23, 2016).

Where trial court continued defendant's trial on the charge of accessory after the fact to first degree murder until after the trial and conviction of the principal offender, defendant was not entitled to seek interlocutory review of the trial court's order rejecting her alleged sixth amendment speedy trial violation because speedy trial claims in Tennessee ordinarily were raised and reviewed on direct appeal following conviction. Determining whether delay had impaired a defendant's ability to mount an adequate defense is crucial to the prejudice inquiry, and it is precisely this aspect which interlocutory review cannot well illuminate. State v. Hawk, 170 S.W.3d 547, 2005 Tenn. LEXIS 656 (Tenn. 2005).

Trial court did not abuse its discretion by finding that the state's delayed prosecution of defendant violated his right to a speedy trial on the DUI charge where defendant's testimony regarding his memory of the incident weighed heavily in support of finding that he was prejudiced by the delay; the delay that could be tolerated for an ordinary street crime was considerably less than for a serious, complex charge, and the factors relevant to a speedy trial inquiry were interrelated and depended upon the particular circumstances of each case. State v. Hudgins, 188 S.W.3d 663, 2005 Tenn. Crim. App. LEXIS 959 (Tenn. Crim. App. 2005).

Defendant's due process rights were not violated by a 13 year delay between the commission of the murder and the return of the indictment because the trial court found that actual prejudice had not been proven; the missing tapes and witness statements might have supported an alternative theory as to the perpetrator, but that was not proven. The trial court further found that the state had not caused the delay for tactical advantage but instead had lacked sufficient evidence until the discovery of the projectiles. State v. D'Antonio, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1152 (Tenn. Crim. App. Oct. 26, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 389 (Tenn. 2006), dismissed, D'Antonio v. Carpenter, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 90998 (M.D. Tenn. July 3, 2014).

Defendant's conviction for premeditated first-degree murder was appropriate because he failed to show that his due process rights were violated; almost 20-year delay between offense and prosecution was due to ongoing investigation as information was sought and suspects were eliminated, and although the investigation continued, there was no evidence that the state intentionally delayed the indictment in order to gain a tactical advantage over defendant. State v. Gilley, 297 S.W.3d 739, 2008 Tenn. Crim. App. LEXIS 660 (Tenn. Crim. App. Aug. 13, 2008).

In a case where defendant was charged with aggravated vehicular homicide and vehicular homicide arising from an accident that occurred on October 16, 2004, and defendant was arrested three days later and was indicted on December 7, 2004, trial was originally set to begin on April 18, 2005, but the court granted the state a continuance until August 11, 2005 with the hopes of identifying a potential witness; in this case, defendant was not prejudiced by the delay and therefore his right to a speedy trial was not violated under Tenn. Const. art. I, § 9. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Despite a delay of over 20 years between the time that defendant pleaded guilt to grand larceny and a trial court's imposition of a sentence therefore, after considering the factors included in the balancing test, the court found that there was no denial of defendant's right to a speedy trial under U.S. Const. amend VI, and Tenn. Const. art. I, § 9. State v. Bates, 313 S.W.3d 265, 2009 Tenn. Crim. App. LEXIS 764 (Tenn. Crim. App. Sept. 16, 2009).

Court did not err by denying defendant's motion to dismiss for lack of a speedy trial because, although there was a delay of 17 months, it was not unreasonable in view of the complexity of the case and the number of felony charges faced by defendant. Defendant did not timely assert his right to a speedy trial, and he was not prejudiced by the delay. State v. Smith, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 14, 2011), dismissed, Coleman v. Colvin, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 133919 (W.D. Pa. Sept. 29, 2016).

Defendant's right to a speedy trial was not violated because part of the delay was caused by the defense; defendant did not file a motion to suppress his statements until October 9, 2009, and did not file a response to the state's March 9, 2009 request for discovery until March 5, 2010, just eighteen days before trial. Additionally, defendant asserted his right to a speedy trial almost eighteen months after his arrest. State v. Climer, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Dec. 14, 2011), modified, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Although the delay of over two years between defendant's initial indictment and his trial was enough to require inquiry into all of the speedy trial factors, defendant's motion to dismiss for lack of a speedy trial was properly denied because the length of the delay was not egregious, given the fact that defendant was charged with three felonies ranging from Class C to Class A; the delays were caused or acquiesced to by defendant; he waited until almost two years had elapsed before he asserted his right to a speedy trial; and he failed to establish that he was prejudiced by the delay as no evidence was presented regarding when his mother had died or that her testimony that the jewelry belonged to her was unable to preserved. State v. Morris, 469 S.W.3d 577, 2014 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. May 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 838 (Tenn. Oct. 15, 2014).

Defendant's right to a speedy trial was not violated because defendant acquiesced in the delay by failing to assert his right to a speedy trial; defendant was not prejudiced by the apparent loss of an audio recording of his statement to a detective that he heard voices telling him to have sex; in light of the overwhelming evidence, the deficiencies in witnesses' memories was not prejudicial; the loss of the rape kit did not prejudice him because defendant admitted that he had sex with the victim, although he told a detective that the sex was consensual; and the lost possibility of concurrent sentencing was not enough to require dismissal. State v. Stanley, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. Oct. 15, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 135 (Tenn. Feb. 12, 2015).

Despite a delay of about two and a half years between accusation and trial, defendant's right to a speedy trial was not violated, as the bulk of the delay was either necessary for fair and effective prosecution or delay in which the defense was complicit and defendant failed to show prejudice. State v. Alajemba, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1020 (Tenn. Crim. App. Nov. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 221 (Tenn. Mar. 11, 2015).

Defendant would remain in federal custody without bond due to his pending fraud case, which minimized his claim of prejudice, and apart from his blanket assertion, there was no indication in the record that his defense was impaired at trial; his speedy trial right was not violated. State v. Caronna, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1043 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 240 (Tenn. Mar. 13, 2015).

Defendant had been incarcerated since March 2009, and he formally asserted his right to a speedy trial in 2012, and trial began 10 months later; this weighed in his favor, but not heavily; his speedy trial right was not violated. State v. Caronna, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1043 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 240 (Tenn. Mar. 13, 2015).

Post-accusation delay of three years and seven months was sufficient to warrant a speedy trial inquiry, however, the delay was not necessarily unreasonable when compared to other cases; the trial lasted 10 days and involved over 60 witnesses, and there were multiple pretrial motions and hearings, and the length of the delay weighed against the State, but not heavily, and defendant's speedy trial right was not violated. State v. Caronna, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1043 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 240 (Tenn. Mar. 13, 2015).

Defendant had not demonstrated that the delay caused him greater anxiety and concern than normally associated with a pending felony prosecution, especially in light of the fact that he was incarcerated at the time as a result of several other pending charges; his right to a speedy trial was not violated. State v. Crites, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 784 (Tenn. Sept. 17, 2015).

Defendant was tried 16 months after he was originally indicted, and as this delay was over one year, it was sufficient to necessitate an analysis of the remaining three speedy trial factors, but it was noted that the delay was not unreasonable when compared to other cases. State v. Crites, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 784 (Tenn. Sept. 17, 2015).

For speedy trial purposes, the slight delay resulting from the third continuance to locate a missing witness did not offset defendant's role in the previous two continuances, and thus this factor weighed against him. State v. Crites, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 784 (Tenn. Sept. 17, 2015).

Defendant's first speedy trial assertion was untimely, then he sought a continuance and acquiesced in another, then failed to assert his right for two trials, but then asserted the right when the State discovered the victim was unavailable to testify; insofar as defendant was challenging the nine-month delay prior to the postponement of the trial, this factor weighed in favor of the State. State v. Crites, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 437 (Tenn. Crim. App. June 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 784 (Tenn. Sept. 17, 2015).

Defendant was not denied his right to a speedy trial because, while almost two and one half years elapsed between defendant's arrest and trial and defendant asserted his right to a speedy trial, the victim was deployed with the Navy and unavailable to testify, multiple witnesses saw defendant point a gun at the victim, the victim's description of the person with the gun was consistent with defendant, and the defense was not impaired. State v. Sanders, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 518 (Tenn. Crim. App. July 1, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 888 (Tenn. Oct. 15, 2015).

Defendant's right to a speedy trial was not violated where he requested the initial continuance, he first asserted his speedy trial right over two years after his indictment and trial proceeded against him seven months later, the delay in the proceedings was not unreasonable given the complexity and seriousness of the case, and defendant failed to establish any prejudice to his defense as a result of the delay. State v. Tabb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Nov. 13, 2015).

While the State conceded that its delay in having evidence tested was an oversight, nothing indicated that the defense was impaired, and defendant's incarceration during the pendency of the proceedings appeared to have been due to a sentence he was serving in another case; the 26-month delay was not egregious, given that defendant was charged with two counts of first degree murder and he did not assert his right to a speedy trial for over 19 months, and thus defendant was not denied a speedy trial and the trial court did not abuse its discretion in denying his motion to sever defendants on that basis. State v. Crockett, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 486 (Tenn. June 23, 2016).

Defendant was not denied his constitutional right to a speedy trial, as the record reflected he agreed to the continuances, and the record did not reflect that the delay caused undue and oppressive incarceration, maximized defendant's anxiety and concern beyond that generally associated with being a criminal defendant, or impaired defendant's ability to present a defense. State v. Mullins, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. Apr. 6, 2016).

No unequivocal rule of law was breached, and plain error relief was not warranted, because defense counsel cross-examined witnesses regarding the reasons for the delay between the burglary and defendant's arrest, but he did not establish that defendant suffered any resulting prejudice; defendant did not file a pretrial motion objecting to the pre-indictment delay or include the issue in his motion for a new trial. State v. Coleman, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 444 (Tenn. Crim. App. June 15, 2016).

Trial court properly dismissed a three-count indictment for rape of a child and aggravated sexual battery because the State did not appeal the dismissal as without prejudice, the judgment form, which specifically noted a speedy trial violation, did not mention the rules of criminal procedure, and the State could not re-indict defendant for the same offense. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. Aug. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 937 (Tenn. Dec. 15, 2016).

Trial court erred in dismissing defendant's re-indictment for rape of a child and aggravated sexual battery because defendant's constitutional right to a speedy trial was not implicated and defendant did not demonstrate actual prejudice. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. Aug. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 937 (Tenn. Dec. 15, 2016).

Despite the seven-year delay which weighed against the State, the inmate was unable to show that his ability to prepare a defense was impeded. Hollis v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 14, 2017), cert. denied, Hollis v. Tennessee, 200 L. Ed. 2d 272, 138 S. Ct. 1004, — U.S. —, 2018 U.S. LEXIS 1052 (U.S. Feb. 20, 2018).

Defendant did not show a speedy trial violation required an indictment's dismissal because (1) the delay was not significant when considering the seriousness of the charges, (2) a portion of the delay was attributable to defendant, (3) defendant's assertion of the right to a speedy trial was not timely, and (4) defendant showed no prejudice. State v. Gossett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 232 (Tenn. Crim. App. Mar. 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 482 (Tenn. Aug. 18, 2017).

Defendant two's right to a speedy trial was not violated; it could not be ignored that he never asserted his right to a speedy trial, he acquiesced in delaying trial at least once and requested another delay, and he failed to establish any prejudice to his defense as a result of the delay. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

Considering defendant two's extensive criminal history and experience with the criminal justice system, and his four additional sets of charges that were pending while he was incarcerated for the instant case any anxiety suffered was not so great as to have outweighed the other factors in the speedy trial analysis. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

Defendant two never asserted his right to a speedy trial, which weighed against him. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

Trial began four years and eight months after defendant two was first arrested, and while this delay triggered a speedy trial inquiry, the delay was not per se unreasonable; the case involved a 12-count indictment for 27 felony charges against three defendants and involved numerous pre-trial motions, hearings, and continuances requested by the State and defendants, such that the length of the delay did not weigh heavily against the State. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

Defendant's right to a speedy trial was not violated by the four-year delay between his indictment and his trial because nothing indicated that he ever requested a speedy trial and he was not prejudiced, as he was on bond the entire time, he was well-aware shortly after the incident that he could be charged with committing a crime, and his testimony was detailed as to why he went into the victim's room and how the recordings occurred. State v. Hall, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 2, 2017).

Trial court properly found that defendant's speedy trial rights were not violated because, while the State conceded that it took “over two years” for the case to go to trial, defendant conceded that he did not assert his right to a speedy trial, and the issuance of a superseding indictment did constitute prejudice to him. State v. Pearsons, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Aug. 22, 2018).

Defendant was not denied his right to a speedy trial because the delay of just over two years was not unreasonable; there was no evidence that the delay was intentionally caused by the State, defendant failed to present any evidence that he was prejudiced by the delay, and the case was extremely complex. State v. Carter, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. Aug. 22, 2018).

Defendant's right to a speedy trial was not violated where the trial court issued the probation revocation warrant on July 25, 2016 and held the probation revocation hearing just five months later. State v. Robertson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 688 (Tenn. Crim. App. Sept. 12, 2018).

Defendant's right to a speedy trial was not violated; although there was a delay of two years, all of the continuances were either necessary or acquiesced to or caused by defendant, plus defendant's complaint about being brought back and forth to court was not seen as an assertion of his right to a speedy trial, and he failed to show that his pretrial incarceration was excessively oppressive. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 822 (Tenn. Crim. App. Nov. 6, 2018).

Defendant's motion to dismiss on speedy trial grounds was properly dismissed because, despite the determination that the delay was presumptively unreasonable, there was no showing the State intentionally delayed the matter to the prejudice of defendant or for tactical advantage, most of the delay was acquiesced to by defendant, and the State was diligent in communicating with defense counsel to try to get defendant's motions to be heard. State v. Christian, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 506 (Tenn. Crim. App. Aug. 21, 2019).

Defendant's right to a speedy trial was not violated despite the 20-month long delay because defendant was already in custody on a separate matter and was released prior to trial, there was no evidence that the delay was meant to gain a tactical advantage of defendant, and defendant was not prejudiced by the delay. State v. Jordan, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 27 (Tenn. Crim. App. Jan. 21, 2020).

Defendant's right to a speedy trial was not violated by the three and one-half year delay because the delay was not inordinately long, the reason was a legitimate one and not part of a plan by the State to prejudice defendant, defendant did not assert the right until he filed his motion to dismiss, and there was no prejudice to defendant as a result of the delay. State v. Golden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Oct. 23, 2020).

66. —Imprisonment for Another Offense — Effect on Right.

One under conviction and while imprisoned in the penitentiary for one offense may be brought to trial and sentenced for another crime, whether such crime is charged to have been committed before or during such imprisonment. Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, 1914 Tenn. LEXIS 122, L.R.A. (n.s.) 1915E363 (1915).

The rights of one under confinement in the penitentiary for another crime to a speedy trial are not abridged or deferred until the termination of his sentence. Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, 1914 Tenn. LEXIS 122, L.R.A. (n.s.) 1915E363 (1915).

Where the accused was convicted of forgery and confined in the penitentiary, and other untried cases of forgery against him were by order of the court, made in his absence and without his consent, retired from the docket until the expiration of his sentence, which occurred two years thereafter, such order operated as a denial of the right to a speedy trial, guaranteed Tenn. Const. art. I, § 9 and by § 40-2001 (now § 40-14-101), and entitled the accused to discharge from custody. Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, 1914 Tenn. LEXIS 122, L.R.A. (n.s.) 1915E363 (1915).

Where the defendant was indicted in a county court, and after several postponements, to which he acquiesced, he pleaded guilty in the United States court to the charge of violating a federal law, and was sentenced to five years in the federal prison, the fact that he was not brought to trial during the interim in which he was in the federal prison does not entitle him to a discharge on the theory that he was not given a speedy trial as guaranteed by Tenn. Const. art. I, § 9 and § 40-2001 (now § 40-14-101), for there is no federal law which would entitle the state to the custody of the defendant for the purpose of a trial, and under no principle of comity would the United States have been required to give up the defendant to the state. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 1920 Tenn. LEXIS 6 (1920).

Where the government of the United States has the defendant in its custody and in prison for the violation of a federal statute, the state courts cannot interfere with that custody, or remove the defendant therefrom for the purpose of trying him in the state court for an alleged violation of state law. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 1920 Tenn. LEXIS 6 (1920).

There is no comity whereby a state will turn over a prisoner held for violation of its laws, prior to expiration of his sentence, for trial in another state for violation of the laws of the latter state. The uniform course is to the contrary, and likewise there is no comity whereby the federal government will turn over its prisoner to a state government for trial before the expiration of his sentence. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 1920 Tenn. LEXIS 6 (1920).

Even when one is in prison he is entitled to the protection of Tenn. Const. art. I, § 9, although when one is in prison a trial might be longer delayed than when the man is held in jail to await trial. Gerchman v. State, 206 Tenn. 109, 332 S.W.2d 182, 1960 Tenn. LEXIS 349 (1960).

Where for period of over six years after commission of offenses in Tennessee, defendants were either confined in a penal institution in Indiana or were on bail pending appeal from Indiana conviction or were fugitives from the Indiana authorities and where Tennessee indictment was returned a few days after their release and extradition proceedings then commenced and trial in Tennessee commenced within three months after their return to the state pursuant to such extradition proceedings, defendants were not denied their right to a speedy trial. Burton v. State, 214 Tenn. 9, 377 S.W.2d 900, 1964 Tenn. LEXIS 441 (1964).

Fact that defendant was not tried at second trial for more than ten years after crime was committed was not a violation of right to speedy trial where he was tried and convicted the first time a short time after the crime was committed and no appeal taken and he remained in penitentiary until ordered released by federal court which held first trial void. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 600 (1965), rehearing denied, 216 Tenn. 567, 393 S.W.2d 150, 1965 Tenn. LEXIS 601 (1965).

Defendant who was indicted in February 1963 for murder alleged to have occurred in November 1962 and extradited to Kentucky in March 1963 where he was convicted and sentenced for forgery and imprisoned there until October 1965 when he was returned to Tennessee and convicted of manslaughter under the murder indictment was denied speedy trial on the murder indictment and would be released from custody. Wright v. State, 218 Tenn. 610, 405 S.W.2d 177, 1966 Tenn. LEXIS 592 (1966).

Defendant who served ten years of sentences before his convictions for armed robbery were set aside upon his petition for habeas corpus was not denied a speedy trial when thereafter convicted again for same offenses. Rivera v. State, 1 Tenn. Crim. App. 395, 443 S.W.2d 675, 1969 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1969).

67. —Effect of Reindictment.

Where the prosecution of accused, charged with manslaughter, was barred by delay of the prosecution for a period of 12 years, the bar of the prosecution was not removed by reindictment of accused for the same offense. Smith v. State, 168 Tenn. 265, 77 S.W.2d 450, 1934 Tenn. LEXIS 50 (1935).

68. —Waiver of or Acquiescence in Delay.

The right to a speedy trial may be waived, and when the defendant appeared in person, represented by counsel, at the trial and did not raise the question of a speedy trial, he waived this question. State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168, 1951 Tenn. LEXIS 334 (1951).

Constitutional right to speedy trial was not denied where defendant's attorney acquiesced in court order passing case to retired docket. State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168, 1951 Tenn. LEXIS 334 (1951).

Although right to a speedy trial is a personal one which may be waived, defendant who was extradited, tried and sentenced in another state where he served approximately two and one-half years in prison did not waive right to speedy trial on original indictment in Tennessee where he was indicted prior to extradition but not tried until after being returned to state where he had made no express waiver as to right to speedy trial but merely failed to assert such right. Wright v. State, 218 Tenn. 610, 405 S.W.2d 177, 1966 Tenn. LEXIS 592 (1966).

Lapse of two and one-half years between indictment and trial did not amount to denial of speedy trial where case was continued by consent when codefendant disappeared from jurisdiction, continuances were thereafter made from term to term without objection until codefendant was apprehended and thereafter both state and defendant requested one further continuance. McGowen v. State, 221 Tenn. 442, 427 S.W.2d 555, 1968 Tenn. LEXIS 474 (1968).

An accused cannot claim he was denied the right to a speedy trial where he acquiesced in or requested the delay. King v. State, 1 Tenn. Crim. App. 137, 432 S.W.2d 490, 1968 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. 1968), cert. denied, 393 U.S. 1085, 89 S. Ct. 873, 21 L. Ed. 2d 779, 1969 U.S. LEXIS 2521 (1969).

Where indictment was placed on retired docket when defendant was convicted under second indictment and indictment was reinstated four years later when defendant was granted new trial on other charge, defendant waived right to raise issue of denial of speedy trial by plea of guilty. State ex rel. Lewis v. State, 1 Tenn. Crim. App. 535, 447 S.W.2d 42, 1969 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1969).

Defendant's right to speedy trial is a personal one and may be waived. State ex rel. Lewis v. State, 1 Tenn. Crim. App. 535, 447 S.W.2d 42, 1969 Tenn. Crim. App. LEXIS 289 (Tenn. Crim. App. 1969).

Where 23 months elapsed between the return of an indictment against the defendants and their subsequent arrest on capiases, that delay was sufficient to require a close consideration of their claim of denial of a speedy trial, and their failure to assert that right before trial did not constitute a waiver of the right. Cunningham v. State, 565 S.W.2d 890, 1977 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1977).

Failure to assert the speedy trial right does not operate as a waiver of the right, but it is a crucial factor. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

Failure to assert the speedy trial right is in itself an implication that the defendant was not actively seeking a swift trial. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

The failure to assert the right of a speedy trial itself becomes evidence that another factor—prejudice to defendant—either does not exist or is minimal. State v. Baker, 614 S.W.2d 352, 1981 Tenn. LEXIS 423 (Tenn. 1981).

Ten-month delay resulted from a lack of due diligence on the part of the State, and there was no evidence in the record of deliberate delay on the part of the State; this factor weighed against the State because it was the duty of the State, and not the accused, to bring the matter to trial, but the State's lack of due diligence was counter-balanced by defendant's acquiescence in the pretrial delay, and his speedy trial right was not violated. State v. Caronna, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1043 (Tenn. Crim. App. Nov. 18, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 240 (Tenn. Mar. 13, 2015).

Trial court did not err by denying defendant's motion to dismiss the charges against him because the State did not violate his constitutional right to a speedy trial where the bulk of the delay was attributed to defendant as a result of his fighting extradition from Texas and he failed to show that he suffered any prejudice as a result of the delay. State v. Logan, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 601 (Tenn. Crim. App. July 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 963 (Tenn. Nov. 24, 2015).

First trial delay was requested by defendant one and counsel for defendant two acquiesced, and the second continuance was requested by defendant two, and based on his acquiescence to the first trial delay and his request of the second delay, this factor weighed against defendant two. State v. Sherrod, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 607 (Tenn. Sept. 22, 2017).

No speedy trial violation existed where the reason for the delay was due to the numerous requests of defendants and co-defendants seeking to reset the trial as each attempted to investigate, prepare, or resolve their cases and they were tried less than one year after the severance of a co-defendant. State v. Denton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Aug. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 856 (Tenn. Dec. 8, 2017).

Defendant's right to a speedy trial was not violated by the three-year delay between the indictment and the trial because the defense caused or acquiesced to several of the delays, the court found no evidence that the public defender's office had any breakdown in the case, even with their funding constraints, and provided competent, thorough representation for defendant, and defendant did not move to dismiss the case for violation of his right until two years after he was arraigned and counsel had asked for an eight-month delay. State v. Hernandez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. May 15, 2019).

69. Right to Public Trial.

A courtroom containing only 19 seats for spectators did not deprive the defendant of a public trial as there was nothing in the record to indicate that the public was seeking and being denied access to the courtroom to observe the trial. Sesson v. State, 563 S.W.2d 799, 1978 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1978).

Assistant district attorney general's blatant abuse of the trial court's subpoena power for the exclusive purpose of removing defendant's relatives from the courtroom constituted egregious prosecutorial misconduct. Such state action violated the defendant's constitutional right to a public trial as well as the constitutional right of the relatives to attend the trial. State v. Sams, 802 S.W.2d 635, 1990 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. 1990), appeal denied, — S.W.2d —, 1991 Tenn. LEXIS 22 (Tenn. Jan. 7, 1991).

Defendant was not entitled to a new trial regarding any claimed violation of his right to a public trial pursuant to U.S. Const. amend. 6 and Tenn. Const. art. I, § 9 on the basis that the trial court directed members of the public and media to move so that they could not view videotapes of the victim in a child sexual abuse case because no members of the public or media were barred from the courtroom, and the state noted specifically on the record that the public had the right to be in the courtroom; thus, he waived his right to a public trial to the extent that what occurred could have even be characterized as a closure.State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 8, 2007), modified, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007).

In defendant's murder trial, the trial court did not violate defendant's right to a public trial by excluding defendant's mitigation witnesses from the guilt phase of trial or by excluding defendant's parents from testifying at the sentencing phase after they had attended the guilt phase even though the victims' family members were permitted to attend the guilt phase of trial and testify at the sentencing phase. T.C.A. § 39-13-204, which permitting victim impact statements, did not violate the doctrine of separate of powers because it did not impermissibly amend the rule of sequestration under Tenn. R. Evid. 615 and thereby encroach upon the powers of the judiciary. State v. Jordan, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. June 9, 2009), aff'd, 325 S.W.3d 1, 2010 Tenn. LEXIS 874 (Tenn. Sept. 22, 2010).

Defendant did not show defendant's right to a public trial was violated because, (1) as to one alleged violation, the record did not reflect the public's exclusion from the courtroom, and, (2) as to another alleged violation, defendant did not preserve the issue by objecting or raising the issue in a new trial motion. State v. Lane, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 600 (Tenn. Crim. App. Sept. 20, 2019).

70. Trial by Impartial Jury.

The constitutional right of trial by jury is the correlative of criminal offenses which have to be prosecuted by indictment or presentment under Tenn. Const. art. I, § 14, providing “That no person shall be put to answer any criminal charge but by presentment, indictment or impeachment.” Howard v. State, 143 Tenn. 539, 227 S.W. 36, 1920 Tenn. LEXIS 39 (1920).

Right to impartial jury trial is not denied where juror is discharged from manifest necessity after trial has begun, and undischarged jurors are retained and another impartial juror selected, to fill the vacancy, by use of unexhausted challenges after the entire list has been retendered, following which witnesses are reexamined. Manning v. State, 155 Tenn. 266, 292 S.W. 451, 1926 Tenn. LEXIS 45 (1927), superseded by statute as stated in, State v. Johnson, 692 S.W.2d 412, 1985 Tenn. LEXIS 602 (Tenn. 1985).

Tenn. Const. art. I, § 9 does not require that the same jury that finds a defendant guilty must fix his punishment or that the punishment must be assessed at the time of the finding of the fact. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 1956 Tenn. LEXIS 433 (1956), overruled, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980), overruled in part, State v. Irvin, 603 S.W.2d 121, 1980 Tenn. LEXIS 475 (Tenn. 1980).

All objections to jurors proper defectum (objections based on general disqualification such as age, residence, relationship, feeble mindedness and the like) are waived unless the juror is challenged before he is sworn, whether the grounds of the challenge be known or not, however where the challenge presents a ground within the proper affectum class (challenge for bias or partiality actually shown to exist or presumed to exist from the circumstances) the challenge must be heeded even though not made until after verdict. Treece v. Hamilton, 53 Tenn. App. 13, 378 S.W.2d 194, 1963 Tenn. App. LEXIS 126 (Tenn. Ct. App. 1963).

Constitutional guaranty of trial by impartial jury requires that the jury be free of even a reasonable suspicion of bias and prejudice. Hyatt v. State, 221 Tenn. 644, 430 S.W.2d 129, 1967 Tenn. LEXIS 362 (1967).

Where even though prosecutor, defense counsel and trial judge made diligent efforts to secure a fair and impartial jury it subsequently was discovered that one of jurors who convicted defendants had previously obtained a search warrant against one of the defendants, a reasonable suspicion was raised as to impartiality of jury and new trial would be ordered. Hyatt v. State, 221 Tenn. 644, 430 S.W.2d 129, 1967 Tenn. LEXIS 362 (1967).

Defendant was not deprived of an impartial trial merely because that juror at his lunacy hearing was also a juror at his trial for armed robbery. Brown v. State, 220 Tenn. 709, 423 S.W.2d 493, 1968 Tenn. LEXIS 503 (1968).

Fact that juror had gone hunting with victim's grandfather about eight years prior to trial did not violate the defendant's constitutional right to a fair and impartial trial. McGregor v. State, 491 S.W.2d 619, 1972 Tenn. Crim. App. LEXIS 270 (Tenn. Crim. App. 1972).

Where some of jurors in defendant's case had heard an earlier, similar, and related case, the defendant was not denied an impartial jury where there was no evidence that any members of the jury were thereby biased or prejudiced. Trail v. State, 526 S.W.2d 127, 1974 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. 1974).

Where defendant's only witness had a petition for probation pending at time of trial, where defense counsel asked the witness before the jury whether the judge had tried to discourage witness from testifying and where judge then commented that witness's testimony would not in fact affect his petition but that this was something that witness should have considered in choosing to testify, the plain implication was that the judge disbelieved witness's testimony; the judge, however, rectified his error by instructing jury to weigh witness's credibility for themselves. Wallis v. State, 546 S.W.2d 244, 1976 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1976).

In prosecution of four defendants for murder, denial of severance motion was not improper since no prejudice was alleged. Seymour v. State, 546 S.W.2d 250, 1976 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. 1976).

Where record indicated no other reason for shackling defendant than that a third party in an unrelated proceeding had recently escaped from the courtroom, the shackling violated defendant's right to due process. Willocks v. State, 546 S.W.2d 819, 1976 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1976).

Defendant was not unduly prejudiced where the trial court sustained objections to testimony briefly touching on unrelated criminal activity of defendant, and where such references were vague. Loveday v. State, 546 S.W.2d 822, 1976 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. 1976).

Where defendant was convicted of rape, he was not denied his right to a fair and impartial jury by the fact that he was also charged with burglary and convicted thereof, even though the appellate court later reversed and dismissed the burglary conviction. Roach v. Moore, 550 S.W.2d 256, 1977 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. 1977).

The defendant was not denied a fair trial even though there was extensive and sensational coverage by the media where he failed to exhaust peremptory challenges and where the trial judge carefully supervised the jury selection process and each juror stated that he could and would give appellant a fair and impartial trial. Adams v. State, 563 S.W.2d 804, 1978 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1978).

Tennessee courts have consistently held that persons charged with petty offenses and violation of city ordinances are not, as a matter of right, entitled to a trial by jury under the provisions of the state or federal constitutions. City of Gatlinburg v. Goans, 600 S.W.2d 735, 1980 Tenn. App. LEXIS 330 (Tenn. Ct. App. 1980).

Although counsel for defendant argued that he had to exhaust all of his peremptory challenges on jurors that should have been excluded for cause, because the voir dire transcripts demonstrated that each juror hearing the case was competent, defendant was not deprived of a fair and impartial jury. State v. Middlebrooks, 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (Tenn. 1992), cert. dismissed, Tennessee v. Middlebrooks, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555, 1993 U.S. LEXIS 7942 (1993), cert. denied, Tennessee v. Middlebrooks, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702, 1994 U.S. LEXIS 402 (1994), superseded by statute as stated in, State v. Banks, 271 S.W.3d 90, 2008 Tenn. LEXIS 963 (Tenn. 2008).

Denial of a motion for a change of venue after three trials on the same set of facts did not violate defendant's rights under the state and federal constitutions where ten of the fifty prospective jurors had heard of the case, but with a few exceptions their knowledge was only cursory, and there was absolutely no proof of any undue excitement against the defendant because of the prior trials. State v. Smith, 857 S.W.2d 1, 1993 Tenn. LEXIS 149 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 248 (Tenn. June 28, 1993), cert. denied, Smith v. Tennessee, 510 U.S. 996, 114 S. Ct. 561, 126 L. Ed. 2d 461, 1993 U.S. LEXIS 7408 (1993), cert. denied, Tennessee v. Bane, 510 U.S. 1040, 114 S. Ct. 682, 126 L. Ed. 2d 650, 1994 U.S. LEXIS 63 (1994).

Defendant's conviction for vehicular homicide warranted reversal, given the deprivation of a fair and impartial jury because of juror misconduct during voir dire, where one of the jurors did not disclose critical life experiences and credentials involving alcoholics which made her highly susceptible to bias. State v. Akins, 867 S.W.2d 350, 1993 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. 1993).

Trial court erred when it allowed defendant to unseal information on an anonymously empanelled jury where the appellate court concluded juror's communications to the court that they were offended by defendant's behavior were not external influences with the ambit of Tenn. R. Evid. 606(b) and defendant had not established a compelling need for unsealing the records of the anonymously empaneled jury. Carruthers v. State, 145 S.W.3d 85, 2003 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Oct. 1, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 109 (Tenn. Jan. 26, 2004).

Appellate court concluded that defendant had established a compelling need for unsealing the records of an anonymously empaneled jury in order to interview a juror to determine if that juror willfully concealed information during voir dire, and whether he was biased against defendant, and Tenn. R. Evid. 606(b) permitted the other jurors to testify whether the juror related information to them about his prior history involving defendant and/or his family, which was relevant to both whether the juror was truthful during voir dire and whether he imparted extraneous information to other jurors. Carruthers v. State, 145 S.W.3d 85, 2003 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Oct. 1, 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 109 (Tenn. Jan. 26, 2004).

Trial court's refusal to strike a prospective juror, a deputy sheriff, denied defendant the right to a fair and impartial jury, because the juror's professional relationship and interest in the case was entirely too close to that of a captain's, whose deposition was read into evidence, and an officer's, who was assaulted by defendant and was a prosecution witness. State v. Pamplin, 138 S.W.3d 283, 2003 Tenn. Crim. App. LEXIS 1077 (Tenn. Crim. App. 2003).

Under the Tennessee constitution, a juvenile is entitled to a jury trial on appeal of his or her delinquency proceeding to the circuit or criminal court. State v. Burns, — S.W.3d —, 2005 Tenn. App. LEXIS 444 (Tenn. Ct. App. July 29, 2005), rev'd, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

Because juvenile proceedings were not criminal prosecutions, Tenn. Const. art. I, § 9 was inapposite. State v. Burns, 205 S.W.3d 412, 2006 Tenn. LEXIS 848 (Tenn. 2006).

In a death penalty case, defendant's right to an impartial jury was not violated by the denial of his challenges for cause where one juror was forthcoming about his relationship with one of the state's witnesses and he convinced the trial court that he could judge the evidence in a non-biased manner and with no preconceived notion of defendant's guilt; defendant also failed to explain how the jurors' mild familiarity with the case prior to trial rendered them incompetent as jurors, and he demonstrated neither partiality on the part of any of the jurors, nor any prejudice that he suffered as a result of any of the three persons sitting on the jury. State v. Hugueley, 185 S.W.3d 356, 2006 Tenn. LEXIS 185 (Tenn. 2006).

Trial court did not err when it failed to grant defendants a new trial after defendants proved that one of the jurors gave false statements to the trial court, because defendants had not met their burden of proving a prima facie case of bias or partiality because: (1) Defendants had not proved that the juror was biased or prejudiced because he allegedly knew a potential witness for the state; (2) Defendants had not proved that the juror was biased; and (3) There was no evidence in the record proving that his daughter's associating with law enforcement resulted in actual favor or partiality on the part of the juror. State v. Smith, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 873 (Tenn. Crim. App. Nov. 19, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 126 (Tenn. Feb. 25, 2008), dismissed, Jarnigan v. Johnson, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 109701 (E.D. Tenn. Aug. 17, 2015).

Although the double jeopardy clause was not implicated because the jury was not reassembled to determine guilt or innocence, but only to determine the facts relevant to sentencing, there was no separate jeopardy, the recall of the discharged jury violated defendant's due process rights under U.S. Const. amend. V, U.S. Const. amend. XIV, § 1, and Tenn. Const. art. I, §§ 6, 8, 9 because once a jury had returned a complete verdict, or the jurors had separated and passed from the control of the court, the jury could not be reassembled to act on the case for any purpose. Accordingly the case was remanded to the trial court to select a new jury in order to hold a new trial solely on the issue of whether defendant's conviction was his first, second, third, or fourth driving under the influence offense based on the evidence presented regarding prior convictions. State v. Nash, 294 S.W.3d 541, 2009 Tenn. LEXIS 652 (Tenn. Oct. 7, 2009).

Defendant's convictions for first-degree murder were proper because the record did not support a conclusion that the jurors impaneled were incompetent and that he did not received his guaranteed right to trial by an impartial jury. The record failed to also reveal the allocation of the peremptory challenges; each side had 15 peremptory challenges, and only 22 peremptory challenges were exercised at the time the final jury was empaneled. State v. Sexton, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 1035 (Tenn. Crim. App. Dec. 7, 2010), aff'd in part, rev'd in part, 368 S.W.3d 371, 2012 Tenn. LEXIS 377 (Tenn. May 29, 2012).

In defendant's capital murder trial, defense counsel was deficient in failing to ask any specific questions of potential jurors concerning their experiences as crime victims. While a seated juror was close to someone who had been murdered, bias would not be presumed, and defendant failed to show that he was prejudiced by the inclusion on his jury of a juror whose daughter's boyfriend had been murdered. Smith v. State, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011), cert. denied, Smith v. Tennessee, 184 L. Ed. 2d 48, 133 S. Ct. 104, 568 U.S. 828, 2012 U.S. LEXIS 6925 (U.S. 2012).

In order to safeguard both the defendant's right to an impartial jury in a death penalty case, and the state's interest in empanelling jurors able to impose capital punishment within the framework provided by law, trial courts must consider all of a juror's answers on a questionnaire, rather than giving just one answer dispositive weight, and should permit counsel to examine prospective jurors who provide inconsistent responses to pertinent questions. State v. Sexton, 368 S.W.3d 371, 2012 Tenn. LEXIS 377 (Tenn. May 29, 2012).

Defendant did not establish that the trial court abused its discretion in limiting trial counsel's questioning of a juror because trial counsel was arguing with a juror in an attempt to get the juror to commit that second degree murder was the only conviction that would be appropriate for trial counsel's hypothetical set of facts; the trial court found trial counsel's hypothetical was inappropriate and misleading and interrupted to clarify the question, which it possessed the discretion to do. State v. Sewell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. Apr. 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 651 (Tenn. Aug. 14, 2015).

Defendant failed to make the threshold showing that the jurors were exposed to extraneous prejudicial information that bore on a fact at issue in the case, as the jurors stated that the comments made by a detective's ex-girlfriend did not relate to the case, and thus there was no proof that the jury was exposed to prejudicial information. State v. Broadnax, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 361 (Tenn. Crim. App. May 15, 2015).

To the extent defendant raised an issue about the trial court's knowledge of the juror interaction and the delay in disclosing it to defense counsel, defendant failed to show that he was prejudiced by any delay. State v. Looney, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1066 (Tenn. Crim. App. Oct. 27, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 598 (Tenn. Aug. 18, 2016).

Defendant has failed to make an initial showing that one juror was exposed to extraneous prejudicial information or subjected to an improper outside influence; the detective and the juror's limited discussion about notifying the trial court of the juror's delay due to a traffic accident did not bear on a fact at issue in the case, and the contact was unforeseen and completely unrelated to defendant's charges. State v. Looney, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1066 (Tenn. Crim. App. Oct. 27, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 598 (Tenn. Aug. 18, 2016).

Defendant failed to show that the jury was exposed to extraneous prejudicial information or subjected to an improper outside influence, as the juror's observations of one victim's demeanor did not constitute outside information. State v. Looney, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1066 (Tenn. Crim. App. Oct. 27, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 598 (Tenn. Aug. 18, 2016).

Defendant had not carried his burden of showing a manifest necessity for a mistrial based on a newspaper being in the jury room, as the trial court polled each juror and each one indicated that the fact there was media coverage would not affect their ability to serve impartially, and the trial court excused the owner of the newspaper, who was also the only juror who read a portion of the article; appellate review of the article was consistent with one juror's statement that the information was nothing more than what was presented at trial. State v. Looney, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1066 (Tenn. Crim. App. Oct. 27, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 598 (Tenn. Aug. 18, 2016).

As to the trial court's instructing the grand jurors in the presence of the jury venire, defendant failed to show that the jurors were exposed to extraneous prejudicial information that bore on a fact at issue in the case, the jury was instructed on the presumption of innocence and that the indictment was not evidence of guilt, and it was presumed that the jury followed the instructions, and thus any error was harmless. State v. Case, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. Nov. 24, 2015), appeal denied, State v. Denver, — S.W.3d —, 2016 Tenn. LEXIS 208 (Tenn. Mar. 22, 2016).

Trial court did not err in denying defendant's motion to prohibit spectators from wearing buttons displaying photos of the vicitms taken before their deaths, as they were only worn by immediate family and could not be worn during testimony, and thus, were not so inherently prejudicial as to post an unacceptable threat as to defendant's right to a fair trial by an impartial jury. State v. Davidson, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016), cert. denied, Davidson v. Tennessee, 199 L. Ed. 2d 66, 138 S. Ct. 105, 2017 U.S. LEXIS 5551 (U.S. Oct. 2, 2017).

Record did not establish any actual prejudice on the part of an alternate juror, as it was not clearly established that she actually knew defendant, plus defendant did not question her about it when given the chance, she said she could be impartial, she did not sit on the jury that convicted defendant, and he did not present any proof that the jury was not fair and impartial. State v. Burrows, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. Jan. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 364 (Tenn. May 6, 2016).

Defendant failed to establish a prima facie case of juror bias because defendant, who was accused of tampering with the evidence by deleting photos from the cell phone of adult's adult child, did not clearly establish that a juror, who was friends on Facebook with the child, a fellow musician, and had heard people talk about the child's case, actually knew and recognized defendant's child, let alone that the juror had any prejudice against defendant. State v. Christie, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 960 (Tenn. Crim. App. Dec. 30, 2016).

Although defendant was entitled to a trial by an impartial jury, he was not entitled to a mistrial because, upon learning that a newspaper had run an article about defendant, the trial court asked the jurors whether they had read the article, and the jurors affirmed that they had not; the trial court then re-admonished the jury not to gather any information about defendant from outside sources; and there was no evidence to establish that the jury was exposed to any extraneous prejudicial information. State v. Gwin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. May 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 604 (Tenn. Sept. 22, 2017).

Trial court did not err in failing to strike a juror from the jury because she stated she had been raped as a child by a family member, as the juror told the trial court that she could be impartial and there was no evidence the jury was not fair and impartial. State v. Thornton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 524 (Tenn. Crim. App. June 22, 2017).

Juror's expression of frustration with defense counsel did not deny defendant an impartial jury because there was no evidence (1) the jury was exposed to extraneous prejudicial information, or (2) a juror was biased. State v. Howard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Sept. 13, 2017).

Juror misconduct did not entitle defendant to a mistrial because defendant did not show the jury was exposed to extraneous prejudicial information or subjected to an improper outside influence or began deliberations before being so instructed. State v. Wilson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. May 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 567 (Tenn. Sept. 13, 2018).

Defendant was not deprived of his right to a fair trial by an impartial jury due to the misconduct of a juror as there was no willful concealment or failure to disclose on the part of the juror because he admitted during voir dire that his brother-in-law was the elected public defender, and that his brother was a criminal defense attorney; and defendant failed to present any evidence that the juror was actually prejudiced against him or was exposed to any extraneous information about the case. State v. Lester, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 889 (Tenn. Crim. App. Dec. 10, 2018).

Defendant was not entitled to relief for alleged jury tampering because evidence that jurors walked through a crowded hallway where victims might have been seated showed no extraneous prejudicial information, improper outside influence, or exposure to unauthorized private communication, contact, or tampering. State v. Todd, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. Apr. 17, 2019).

Defendant provided no evidence showing how a juror's understanding of her prior working relationship with defendant's mother affected her ability to be impartial. State v. Jordan, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. May 8, 2020).

71. —Defined.

The jurors should be impartial, without bias and without prejudgment. M'Lain v. State, 18 Tenn. 241, 1837 Tenn. LEXIS 9 (1837); Troxdale v. State, 28 Tenn. 411, 1848 Tenn. LEXIS 96 (1848).

The constitutional right of the accused to a trial by an impartial jury necessarily means that he is entitled to a jury which can enter upon the examination of his case, conceding to him the full benefit of that presumption of innocence which the law gives him as a matter of right. This presumption entitles him to an acquittal until it has been overturned by plenary proof. Mayes v. State, 50 Tenn. 430, 1872 Tenn. LEXIS 10 (1872); Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

Jurors who have heard the evidence are not impartial. Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Turner v. State, 111 Tenn. 593, 69 S.W. 774, 1902 Tenn. LEXIS 22 (1902).

An impartial juror is one who enters the box indifferent between the parties, the state, and the accused, indifferent in feeling and opinion. Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

An impartial jury is one composed of twelve impartial men. The presence of one partial man on a jury destroys the impartiality of the body, and renders it partial. Every juror must be disinterested and impartial in feeling and opinion. Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892); Woods v. State, 99 Tenn. 182, 41 S.W. 811, 1897 Tenn. LEXIS 23 (1897); Ward v. State, 102 Tenn. 724, 52 S.W. 996, 1899 Tenn. LEXIS 81 (1899).

The constitutional guarantee of a fair and impartial trial before a fair and impartial jury does not mean blind adherence to useless form, the reason for which lies in the forgotten past and the necessity for which cannot be adapted to existing conditions. Manning v. State, 155 Tenn. 266, 292 S.W. 451, 1926 Tenn. LEXIS 45 (1927), superseded by statute as stated in, State v. Johnson, 692 S.W.2d 412, 1985 Tenn. LEXIS 602 (Tenn. 1985).

On appeal from the denial of petitioner's, an inmate's, motion for post-conviction relief, the testimony presented at the post-conviction hearing established that a juror was never asked a direct question during voir dire which would have elicited from him the information presented at the hearing concerning his daughter's boyfriend's murder. As a result, the inmate failed to present evidence from which bias on the part of that juror could have been presumed. Smith v. State, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 793 (Tenn. Crim. App. Sept. 21, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Oct. 11, 2010), aff'd in part and vacated in part, 357 S.W.3d 322, 2011 Tenn. LEXIS 1152 (Tenn. Dec. 19, 2011).

72. —Not to Be Defeated.

The right of the accused to a trial by an impartial jury cannot be defeated by any deceit or device whatever, as by a plea of guilty and submission to the grace of the court procured by fraud, putting in fear, or gross misrepresentation. The court will, during the term, allow such plea and submission to be withdrawn, and will set aside the judgment entered thereon, and will grant the accused the right to plead over, and give him a fair trial by an impartial jury. Swang v. State, 42 Tenn. 212, 1865 Tenn. LEXIS 42 (1865).

The bill of rights guarantees to all citizens the right of trial by jury, unimpaired and without violation. This manifestly means that the right shall never be embarrassed or encumbered with conditions which, in their practical operation, may impair or violate the free and full enjoyment of the right. Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897) (in dissenting opinion).

In trial for a felony, it was not error for the trial court to refuse defendant's request to waive a trial by jury. Jones v. Tenn., 206 Tenn. 245, 332 S.W.2d 662, 1960 Tenn. LEXIS 512 (1960).

Even though proof of guilt is conclusive, the issue of guilt should be submitted to the jury on a plea of not guilty; there is no provision in this state or any other jurisdiction for the trial judge to order a verdict of conviction. State v. Davis, 637 S.W.2d 471, 1982 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. 1982).

Upon retrial for felony murder, defendant's constitutional right to a jury trial would be violated by an order preventing him from presenting proof that would question his aggravated burglary conviction, which was the predicate offense for the felony murder charge. Just as he could not be collaterally estopped from presenting proof as to the burglary conviction, he, likewise, could not be barred by application of the law of the case. State v. Scarbrough, — S.W.3d —, 2004 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Oct. 11, 2004), aff'd, 181 S.W.3d 650, 2005 Tenn. LEXIS 1044 (Tenn. 2005).

73. —Exclusion of Racial Group.

The equal protection clause of U.S. Const. amend. 14, as well as the declaration of rights established by Tenn. Const. art. I, § 9, will not tolerate the exclusion of any individual racial group from jury service on that account, or on the false assumption that members of its race as a group are not qualified to serve as jurors. State v. Bell, 745 S.W.2d 858, 1988 Tenn. LEXIS 24 (Tenn. 1988).

When the defendant is able to establish a prima facie case of purposeful discrimination against prospective jurors from his own race, the prosecution must then come forward with a neutral explanation for the challenge of these jurors. This explanation must be more than an assumption that black jurors will be biased simply because the defendant is black, but does not have to rise to the level justifying a challenge for cause. State v. Butler, 795 S.W.2d 680, 1990 Tenn. Crim. App. LEXIS 84 (Tenn. Crim. App. 1990), appeal denied, State v. Riggins, — S.W.2d —, 1990 Tenn. LEXIS 221 (Tenn. June 11, 1990), appeal denied, — S.W.2d —, 1990 Tenn. LEXIS 235 (Tenn. June 11, 1990).

A criminal defendant may object to a race-based exclusion of a juror, effected through peremptory challenges, regardless of whether the defendant and the excluded juror share the same race. State v. Carroll, 34 S.W.3d 317, 2000 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. 2000).

Trial court did not err in ruling that defendant's race, African-American, was adequately represented in the jury pool because the census data showed that the county had an African-American population of 1.5 percent, and therefore in a pool of 141 prospective jurors, the African-American race would be fairly represented by the inclusion of three African-American jurors; according to defense counsel, there were at least three African-Americans in the jury pool. State v. Tolson, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 1019 (Tenn. Crim. App. Dec. 28, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 409 (Tenn. Apr. 16, 2007), dismissed, Tolson v. Howerton, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 124381 (M.D. Tenn. Sept. 8, 2016).

74. —Jury Instructions.

Judge's instructions, which merely tracked the language of former § 39-2-203(g) (see now § 39-13-204(g)), did not remove the jury's discretion in deciding whether to impose the death penalty in violation of Tenn. Const. art. I, § 8 and Tenn. Const. art. I, § 9. State v. Middlebrooks, 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (Tenn. 1992), cert. dismissed, Tennessee v. Middlebrooks, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555, 1993 U.S. LEXIS 7942 (1993), cert. denied, Tennessee v. Middlebrooks, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702, 1994 U.S. LEXIS 402 (1994), superseded by statute as stated in, State v. Banks, 271 S.W.3d 90, 2008 Tenn. LEXIS 963 (Tenn. 2008).

The language of former § 39-2-203(g) (now § 39-13-204), pertaining to the death sentence, did not violate Tenn. Const. art. I, § 9 as interfering with the jury's absolute discretion to impose its own decision. State v. Howell, 868 S.W.2d 238, 1993 Tenn. LEXIS 408 (Tenn. 1993), cert. denied, Howell v. Tennessee, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687, 1994 U.S. LEXIS 2487 (1994).

Although trial counsel was deficient by failing to object to the trial court's ex parte communication with the jury during deliberations and by failing to request that the jury instead be brought in for supplemental instructions, defendant did not prove that the issue would have been successful on appeal. Further, it was not clear from the record that the trial court improperly influenced the verdict or that the jury changed its verdict as a result of the ex parte communication. Adams v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Dec. 20, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 218 (Tenn. Apr. 15, 2020).

Through its improper instruction to prospective jurors that contrary to pro se defendant's claim during voir dire, defendant's counsel was not fired yesterday but was allowed to withdraw from representation due to what counsel and the court believed was defendant's refusal to cooperate with counsel in preparing a defense, not only did the court inform the prospective jurors that defendant lied to them, but provided the jury with its personal impression of defendant and essentially allowed the jury to consider inadmissible character evidence. State v. Toomes, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 700 (Tenn. Crim. App. Oct. 29, 2020).

75. —Statute Creating Disputable Presumption.

A statute making the possession of an internal revenue license or other fact indicated by the legislature prima facie evidence of the conducting of a prohibited business does not make it obligatory upon the jury to convict after the presentation of such evidence, but shifts upon the accused the duty to explain. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910); Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911).

The right to trial by an impartial jury is not impaired or abridged by a provision in a statute that proof of certain enumerated facts shall constitute prima facie evidence of fraudulent intent to commit the offense created by the statute since legislation prescribing rules of evidence and declaring what shall be evidence is practically unrestricted and will be upheld if impartial and uniform and not operating to preclude a party from exhibiting his rights. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965).

76. — —Changing Burden of Proof.

It is not in the power of the legislature to so regulate the proof as to throw the burden on the accused, and thereby change the legal presumption that every man is innocent until the contrary appears from the proof. Mayes v. State, 50 Tenn. 430, 1872 Tenn. LEXIS 10 (1872).

77. —Statute Creating Conclusive Presumption.

The rule is that statutes which undertake to make evidence of certain facts absolute or conclusive proof of guilt are unconstitutional; and those which merely declare the statutory presumptions affecting the burden of proof are constitutional and valid. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, 1910 Tenn. LEXIS 8 (1910); Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911).

78. —Presumption Must be Logical Conclusion From Facts.

A statute making an act prima facie evidence of crime, where the party charged had no control over such act, and with which he had no connection, would be void; and so would a statute which made an act prima facie evidence of crime, where such act has no relation to a criminal act, and no tendency, of itself, to prove the ultimate fact of guilt. Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911).

Record did not clearly establish that one juror actually knew and recognized defendant, and no proof existed of the actual existence of such an opinion in the mind of the juror as will have raised the presumption of partiality, and thus defendant was not entitled to relief in this regard. State v. Seiber, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 137 (Tenn. Crim. App. Feb. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 421 (Tenn. June 23, 2016).

79. —When Opinion Disqualifies.

If a juryman has formed or expressed an opinion from hearing witnesses or testimony. Rice v. State, 9 Tenn. 432, 1830 Tenn. LEXIS 41 (1830); Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Moses v. State, 30 Tenn. 232, 1850 Tenn. LEXIS 101 (1850); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853); Norfleet v. State, 36 Tenn. 340, 1857 Tenn. LEXIS 7 (1857); Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Woods v. State, 99 Tenn. 182, 41 S.W. 811, 1897 Tenn. LEXIS 23 (1897); Leach v. State, 99 Tenn. 584, 42 S.W. 195, 1897 Tenn. LEXIS 69 (1897); Ward v. State, 102 Tenn. 724, 52 S.W. 996, 1899 Tenn. LEXIS 81 (1899); Wilson v. State, 109 Tenn. 167, 70 S.W. 57, 1902 Tenn. LEXIS 67 (1902); Turner v. State, 111 Tenn. 593, 69 S.W. 774, 1902 Tenn. LEXIS 22 (1902); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908); or from reading a newspaper account or statement of the facts or what purported to be the facts, but not the testimony. Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); he is not such impartial juror as the constitution requires.

A juror disqualified by an opinion does not qualify himself by stating that he can try the case impartially. Rice v. State, 9 Tenn. 432, 1830 Tenn. LEXIS 41 (1830); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883).

A juror of doubtful competency should be declared incompetent. Henry v. State, 23 Tenn. 270, 1843 Tenn. LEXIS 78 (1842); Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883).

Opinion entertained, but from examination it is left doubtful whether it was formed from information derived immediately from persons having knowledge of the facts, or from rumor merely, disqualifies the juror. Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

Opinion formed from rumor, without knowledge whether the information was from witnesses, or who were witnesses, where the juror could do justice to the prisoner, “if the proof turned out differently from rumor,” disqualifies the juror. Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Moses v. State, 30 Tenn. 232, 1850 Tenn. LEXIS 101 (1850); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853); Watkins v. State, 2 Shan. 206 (1877); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883).

In testing the fitness or competency of a juror, the character of the impression made upon his mind, and the influence upon his conduct likely to be produced by it, are of much greater consequence than the source whence such impressions may have been derived. Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Watkins v. State, 2 Shan. 206 (1877).

Where a juror is disqualified by opinion based upon evidence or information which disqualifies a juror, he cannot qualify himself by saying that notwithstanding his said opinion he could try the case impartially, and it is improper for the trial judge to ask the juror if he could do so. Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Woods v. State, 99 Tenn. 182, 41 S.W. 811, 1897 Tenn. LEXIS 23 (1897) (but he may qualify himself where the opinion is based upon rumor); Turner v. State, 111 Tenn. 593, 69 S.W. 774, 1902 Tenn. LEXIS 22 (1902).

The opinion of a juror formed upon rumor, if so fixed as to require proof to remove it, is prejudicial to a fair trial, and renders the juror partial and incompetent, though there appears to be no rational ground for the opinion. Watkins v. State, 2 Shan. 206 (1877); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883)Disqualifying opinion exists where proof is required to remove itTurner v. State, 111 Tenn. 593, 69 S.W. 774, 1902 Tenn. LEXIS 22 (1902).

A disqualifying opinion cannot be obviated by the juror's saying that he will be governed by the evidence notwithstanding his opinion. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883).

A juror disqualified by opinion should be rejected at once, without inquiring as to whether he will be governed alone by the evidence, notwithstanding his opinion. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Turner v. State, 111 Tenn. 593, 69 S.W. 774, 1902 Tenn. LEXIS 22 (1902) (case of disqualification of juror by opinion).

A juror is incompetent where his opinion, founded on rumor, would require evidence favorable to the prisoner to remove it, but if the juror can “disregard his opinion, and rely upon the evidence for his verdict,” where the opinion is as to the undisputed facts bearing upon the very act of the killing only, it is not a disqualifying opinion, and the juror is competent. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883).

If a juror is disqualified by an opinion, no inquiry is permissible as to whether, notwithstanding his opinion, he will be governed by the evidence alone. Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); Turner v. State, 111 Tenn. 593, 69 S.W. 774, 1902 Tenn. LEXIS 22 (1902).

Where there was a conviction for rape by a jury from which improper exclusions were made because of general objections to the death penalty, the required remand for reassessment of punishment was not necessarily to the same jury that produced the verdict of conviction. Hunter v. State, 496 S.W.2d 900, 1972 Tenn. LEXIS 312 (Tenn. 1972).

80. —When Opinion Does Not Disqualify.

Trial court did not abuse its discretion in declining to strike a juror for cause; although the juror was a member at defendant's gym and heard gossip about the case, he did not know defendant or the victim personally, he said that he could set aside any knowledge he had about the case and that he could be a fair and impartial juror, and there was no proof that he was not fair and impartial. State v. Pearman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 615 (Tenn. Sept. 21, 2017).

81. — —Opinion Formed or Expressed Upon Rumor.

Opinion formed and expressed from rumor will not disqualify a juror in a criminal case. Payne v. State, 22 Tenn. 375, 1842 Tenn. LEXIS 104 (1842); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

Opinion formed upon rumor, or report, not relied on as true, will not disqualify the juror in a felony case. Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Moses v. State, 30 Tenn. 232, 1850 Tenn. LEXIS 101 (1850); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853); Woods v. State, 99 Tenn. 182, 41 S.W. 811, 1897 Tenn. LEXIS 23 (1897).

Opinion formed upon mere rumor or report does not disqualify a juror in criminal cases. Moses v. State, 30 Tenn. 232, 1850 Tenn. LEXIS 101 (1850); Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853); Preswood v. State, 50 Tenn. 468, 1872 Tenn. LEXIS 17 (1872); Watkins v. State, 2 Shan. 206 (1877); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Woods v. State, 99 Tenn. 182, 41 S.W. 811, 1897 Tenn. LEXIS 23 (1897).

An expressed opinion, formed alone from rumor, will not disqualify one as a juror in a criminal case. Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Hoard v. State, 83 Tenn. 318, 1885 Tenn. LEXIS 54 (1885) (but an opinion formed from hearing part of the evidence on a former trial disqualifies one as a juror); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892).

Loose impressions or conversations as to the guilt or innocence of the prisoner do not disqualify a juror, especially after verdict. Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898).

Where a juror, on his voir dire, testified that he had formed an opinion based upon mere rumor; that his opinion was a fixed one which would require evidence to remove; that he had talked generally about the matter, but did not know whether he had talked with witnesses or not, but had accepted the matter as a mere rumor, and that he had read a certain newspaper; that he could as juror do fair and impartial justice between the state and the defendant, such a juror is not disqualified, but is competent. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

82. — —Newspapers.

Where a juror, on his voir dire, stated that he had not formed or expressed an opinion, that he was a subscriber for a certain newspaper and usually read it carefully, but did not remember reading articles about the case, and that, if he had read them, he would have formed an opinion which would require evidence to remove it, the refusal of the court to permit the counsel of the accused to exhibit to the jurors the articles to be read by him, to ascertain whether he had previously read them, was proper. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908), citing and distinguishing Ward v. State, 102 Tenn. 724, 52 S.W. 996, 1899 Tenn. LEXIS 81 (1899).

A juror who states, on his voir dire, that he has read the accounts of the crime in newspapers, but has not formed or expressed any opinion, is not disqualified. Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

83. —Conviction in Mind Disqualifies.

A juror's mere expression of a decided conviction of the guilt of the accused, without stating or showing any facts or reasons therefor, made before the trial, but without the knowledge of the accused, shows such prejudice against the accused as entitles him a new trial. Brakefield v. State, 33 Tenn. 215, 1853 Tenn. LEXIS 32 (1853); Norfleet v. State, 36 Tenn. 340, 1857 Tenn. LEXIS 7 (1857); Mann v. State, 40 Tenn. 373, 1859 Tenn. LEXIS 104 (1859); Riddle v. State, 50 Tenn. 401, 1872 Tenn. LEXIS 6 (1872); Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Draper v. State, 63 Tenn. 246, 1874 Tenn. LEXIS 239 (1874); State v. Collie, 3 Shan. 803 (1878); Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Hoard v. State, 83 Tenn. 318, 1885 Tenn. LEXIS 54 (1885); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898). But see Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892); Thomas v. State, 109 Tenn. 684, 75 S.W. 1025, 1902 Tenn. LEXIS 99 (1902).

A juror's opinion formed and expressed, that the prisoner ought to be “hung,” without some satisfactory explanation as to change of mind that he had no opinion when examined and taken as a juror, renders him incompetent and entitles the prisoner to a new trial. Norfleet v. State, 36 Tenn. 340, 1857 Tenn. LEXIS 7 (1857); Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898).

It is error to discharge a juror for an opinion, without inquiry to ascertain whether it was formed from mere rumors, or upon some ground not affecting the competency of the juror. Norfleet v. State, 36 Tenn. 340, 1857 Tenn. LEXIS 7 (1857); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

No new trial for discharge of a juror for an opinion formed and expressed, where the attorneys for defendant said they had nothing to say. Norfleet v. State, 36 Tenn. 340, 1857 Tenn. LEXIS 7 (1857); O'Neal v. State, 3 Shan. 503 (1875) (but failure to object to separation of jury during trial is not a waiver); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884).

Discharge of a juror for having formed and expressed an opinion does not affect the remaining jurors, when. Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883); Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892).

In a case in which it is not disputed that a person was killed, and that the accused killed him, the opinion of a juror which goes to these facts only does not disqualify him, because there is in such case the absence of an opinion as to the question of guilt or innocence. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Leach v. State, 99 Tenn. 584, 42 S.W. 195, 1897 Tenn. LEXIS 69 (1897).

Where part of the jurors are discharged, no presumption of improper communications with the remaining jurors will arise, but the burden is upon the defendant to show any impropriety, if imputed to them. Boyd v. State, 82 Tenn. 161, 1884 Tenn. LEXIS 117 (1884); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892).

A juror's expression of opinion that any man who waylays and kills another ought to be “hung” does not disqualify him to try a case of murder committed by waylaying, as to the particular facts of which he has no opinion, and no means of forming an opinion. Leach v. State, 99 Tenn. 584, 42 S.W. 195, 1897 Tenn. LEXIS 69 (1897).

84. —Rehabilitation of Juror.

Where juror was exposed to pretrial information concerning the case and knew of defendant's prior murder conviction, and prosecution attempted a difficult and lengthy rehabilitation of the juror by follow up examination, juror should have been dismissed for cause as her knowledge of prejudicial information and the aggressive rehabilitation created a substantial risk that her judgment would be affected. State v. Kilburn, 782 S.W.2d 199, 1989 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. 1989).

85. —Waiver of Objection.

In the absence of questions calculated to produce specific answers, the defendant waived his right to object to a juror's failure to volunteer what could reasonably be interpreted as extraneous information. Clariday v. State, 552 S.W.2d 759, 1976 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1976).

Defendant's convictions for first-degree murder were proper because, although defendant argued that the trial court failed to adequately admonish the jury before and during the trial, the issue was waived because defendant made a general allegation and failed to provide any supporting argument, authority, or citation to the record. Further, defendant failed to specify the allegedly improper jury communications or identify any improper conduct; consequently, any notion that the venire engaged in improper conduct or were in any way biased or prejudiced by any communication was mere speculation. State v. Sexton, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 1035 (Tenn. Crim. App. Dec. 7, 2010), aff'd in part, rev'd in part, 368 S.W.3d 371, 2012 Tenn. LEXIS 377 (Tenn. May 29, 2012).

Although defense counsel did not immediately object to the trial court's instructing the grand jurors in the presence of the jury venire, he objected shortly thereafter and before voir dire began and thus the issue argued, that defendant's right to a fair jury trial was violated, was not waived. State v. Case, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. Nov. 24, 2015), appeal denied, State v. Denver, — S.W.3d —, 2016 Tenn. LEXIS 208 (Tenn. Mar. 22, 2016).

86. —Time of Challenge.

When it appears that the constitutional right to trial before an impartial jury is invaded the challenge must be heeded, even though not made until after verdict. Certainly this is true when the facts were previously concealed from the defendant, and ignorance was reasonably excusable. Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 1945 Tenn. LEXIS 256, 160 A.L.R. 746 (1945).

Defendant in rape case did not receive a fair trial by an impartial jury where a juror who was prosecutor on a rape case on the suspended docket on voir dire examination when questioned as to his experience in court did not reveal that he was a prosecutor in undisposed rape case, and challenge to juror after verdict should have been granted since it was within the “propter affectum” class. Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 1945 Tenn. LEXIS 256, 160 A.L.R. 746 (1945).

Not excluding a prospective juror who said she knew defendant was not reversible error because defendant did not seek the juror's removal at the time of this revelation. State v. Richardson, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1191 (Tenn. Crim. App. June 12, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 858 (Tenn. Oct. 15, 2014).

87. —Court Determines Juror's Competency.

Exhaustion of peremptory challenges, which the record must show, is prerequisite to obtain advantage of judge's error in putting an incompetent juror to the accused. McGowan v. State, 17 Tenn. 184, 1836 Tenn. LEXIS 29 (1836); Carroll v. State, 22 Tenn. 315, 1842 Tenn. LEXIS 92 (1842); Payne v. State, 22 Tenn. 375, 1842 Tenn. LEXIS 104 (1842); Henry v. State, 23 Tenn. 270, 1843 Tenn. LEXIS 78 (1842); Preswood v. State, 50 Tenn. 468, 1872 Tenn. LEXIS 17 (1872); Holcomb v. State, 76 Tenn. 417, 1881 Tenn. LEXIS 28 (1881); Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883); Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Wooten v. State, 99 Tenn. 189, 41 S.W. 813, 1897 Tenn. LEXIS 24 (1897); Jenkins v. State, 99 Tenn. 569, 42 S.W. 263, 1897 Tenn. LEXIS 67 (1897).

Exhaustion of peremptory challenges, before the jury is made up, entitles defendant in a felony case to a reversal and new trial, where a disqualified juror is thereafter put to him. Moses v. State, 29 Tenn. 456, 1850 Tenn. LEXIS 13 (1850); Preswood v. State, 50 Tenn. 468, 1872 Tenn. LEXIS 17 (1872) (but failure to object to separation of jury during trial is not a waiver); Wooten v. State, 99 Tenn. 189, 41 S.W. 813, 1897 Tenn. LEXIS 24 (1897) (and makes a peremptory challenge after such exhaustion necessary).

Objection for incompetency of selected juror is waived by failure to exhaust all the peremptory challenges. Alfred v. State, 32 Tenn. 581, 1853 Tenn. LEXIS 86 (1853); Preswood v. State, 50 Tenn. 468, 1872 Tenn. LEXIS 17 (1872); Jenkins v. State, 99 Tenn. 569, 42 S.W. 263, 1897 Tenn. LEXIS 67 (1897).

Exhaustion of peremptory challenges and other peremptory challenges to be made to get advantage of being compelled to accept or peremptorily challenge an incompetent juror. Eason v. State, 65 Tenn. 466, 1873 Tenn. LEXIS 388 (1873); Wooten v. State, 99 Tenn. 189, 41 S.W. 813, 1897 Tenn. LEXIS 24 (1897).

Whether the nature and strength of a juror's opinion are such as in law necessarily raise the presumption of partiality is a question of mixed law and fact, to be tried, as far as the facts are concerned, like any other issue of fact, upon the evidence; and the finding of the trial court will not be set aside by the reviewing court, except for manifest error. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

The burden is upon the challenger of a juror to show the actual existence of a disqualifying opinion. Conatser v. State, 80 Tenn. 436, 1883 Tenn. LEXIS 193 (1883); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); Palmer v. State, 121 Tenn. 465, 118 S.W. 1022, 1908 Tenn. LEXIS 30 (1908).

In a capital murder case, the trial court did not err by refusing to excuse two jurors for cause, because the challenged jurors either stated during voir dire that they could be impartial or were rehabilitated, and that the trial court did not err by refusing to excuse them; although one juror initially was skeptical that he could impose a sentence, he changed his position after being advised that a life sentence meant that defendant would serve at least 51 years, and although the other juror initially stated that death was the only proper sentence in a first degree murder case, he later admitted that his view was based on his lack of knowledge about the capital sentencing law. State v. Kiser, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 890 (Tenn. Crim. App. Nov. 29, 2007), aff'd, 284 S.W.3d 227, 2009 Tenn. LEXIS 303 (Tenn. 2009).

Defendant was not entitled to subpoena a juror because defendant presented no evidence that the juror knew the shooting victim and the victim's family prior to trial or that the juror engaged in extra-judicial communications with members of the victim's family or any other third party about the case during trial. Most of the social media communications between the juror and members of the victim's family, including the upcoming sentencing of defendant, occurred after the trial. State v. Waggoner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 24, 2019).

88. —Exclusion of Juror.

Where trial court denied defendant's challenge of a juror who was a prosecutor in a case pending in the same court, the issue on appeal was whether defendant was denied an impartial jury, and where defendant was able to exclude the juror on peremptory challenge, and failed to show that he was forced to exhaust his peremptory challenges in doing so, neither prejudice or bias were shown. State v. Kilburn, 782 S.W.2d 199, 1989 Tenn. Crim. App. LEXIS 556 (Tenn. Crim. App. 1989).

In defendant's death penalty case, the court did not err in dismissing a juror because the trial judge personally observed the juror's physical responses to the questions presented. An assessment of the juror's ability to adhere to her oath made by the trial court, based upon not only the answers to questions posed by counsel but also nonverbal responses, was owed deference; the record did not convincingly establish that the juror at issue would have been able to follow the requirements of law. State v. Odom, 336 S.W.3d 541, 2011 Tenn. LEXIS 192 (Tenn. Mar. 3, 2011), cert. denied, Odom v. Tennessee, 132 S. Ct. 397, 181 L. Ed. 2d 255, 2011 U.S. LEXIS 7329 (U.S. 2011).

Trial court properly refused to excuse a juror for cause because the prospective juror satisfactorily stated she could set aside her associations with defendant's family and base her decision only on the evidence presented at trial; the prospective juror recognized defendant's family from her restaurant and stated she had “some kind of confrontation” with a member of defendant's family about the price of something in her restaurant. State v. Lyons, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 485 (Tenn. June 11, 2015).

Juror's failure to reveal information did not create a presumption of bias because the juror was not in the jury box when defense counsel asked if any of the potential jurors had ever been involved in abuse that would prejudice them against defendant; the juror's silence regarding a sexual offense committed by her brother-in-law arguably created a presumption of bias, but the offense committed, the circumstances of the offense, the date of the offense, and the victim of were never revealed. State v. Reeder, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 12, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 792 (Tenn. Sept. 18, 2015).

Petitioner testified he recalled hearing a juror claim they belonged to the same gym as the prosecutor, but petitioner failed to present any proof during the post-conviction hearing as to which juror he was referring or how he was prejudiced; ineffective assistance was not shown for failing to challenge the juror and petitioner was not entitled to relief. Delosh v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Sept. 23, 2020).

89. —When Juror Knows State's Witness.

Although there was a presumption of prejudice, bias, or partiality given the juror's connection to the witness via work, that presumption was sufficiently rebutted given the testimony that their relationship was very distant and that the juror did not harbor any actual bias, and abundant proof supported the evidence of premeditation. State v. Smith, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 5 (Tenn. Crim. App. Jan. 7, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 410 (Tenn. May 14, 2015).

Defendant's right to an impartial jury was not violated when a defense witness had contact with a juror prior to jury selection because the juror and the witness had, at best, a professional acquaintance, had not seen each other in four years, and briefly exchanged pleasantries outside of the courtroom, and the juror denied meeting defendant and did not share her relationship with the other jurors; the jury was not sequestered. State v. Vales, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 9, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 507 (Tenn. June 11, 2015).

Juror's failure to reveal information did not create a presumption of bias because defendant produced no evidence that the juror's prior knowledge of the State's potential witnesses resulted in prejudice to him; nothing showed that the juror willfully failed to disclose that she knew the witness. State v. Reeder, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. May 12, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 792 (Tenn. Sept. 18, 2015).

Petitioner was properly denied postconviction relief on his claim that a juror had an improper communication with a witness who testified via video recording because the juror testified that he did not communicate with the witness until after the trial, and the witness testified that after the juror stated that he had seen the witness on video that day, they did not discuss the case further or go into the facts surrounding the events underlying the case. Clark v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. June 19, 2018).

90. —Grounds for New Trial.

91. — —Disqualification of Juror.

A juror's disqualification, propter affectum, that is, on account of his partiality or prejudgment, unknown to the accused when the jury was sworn, is ground for a new trial. Brakefield v. State, 33 Tenn. 215, 1853 Tenn. LEXIS 32 (1853); Norfleet v. State, 36 Tenn. 340, 1857 Tenn. LEXIS 7 (1857); Mann v. State, 40 Tenn. 373, 1859 Tenn. LEXIS 104 (1859); Magness v. Stewart, 42 Tenn. 309, 1865 Tenn. LEXIS 64 (1865); Riddle v. State, 50 Tenn. 401, 1872 Tenn. LEXIS 6 (1872); Draper v. State, 63 Tenn. 246, 1874 Tenn. LEXIS 239 (1874); Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Parrish v. State, 80 Tenn. 655, 1883 Tenn. LEXIS 222 (1883); Hoard v. State, 83 Tenn. 318, 1885 Tenn. LEXIS 54 (1885); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898).

But if such disqualification was known to the defendant, and no objection was made before the jury was sworn, it is no ground for a new trial. Cantrell v. State, 2 Shan. 249 (1877); Taylor v. State, 79 Tenn. 708, 1883 Tenn. LEXIS 130 (1883); Tinkle v. Dunivant, 84 Tenn. 503, 1886 Tenn. LEXIS 136 (1886); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898); Southern Queen Mfg. Co. v. Morris, 105 Tenn. 654, 58 S.W. 651, 1900 Tenn. LEXIS 119 (1900).

But a juror's disqualification, propter defectum, that is, on account of some defect from lack of statutory requirements, though unknown to the defendant when the juror was selected and sworn, is no ground for a new trial. McClure v. State, 9 Tenn. 206, 1829 Tenn. LEXIS 43 (1829); Gillespie v. State, 16 Tenn. 507, 1835 Tenn. LEXIS 115 (1835); Ward v. State, 20 Tenn. 253, 1839 Tenn. LEXIS 44 (1839); Calhoun v. State, 23 Tenn. 477, 1844 Tenn. LEXIS 143 (1844); Goodal v. Thurman, 38 Tenn. 209, 1858 Tenn. LEXIS 156 (1858); Magness v. Stewart, 42 Tenn. 309, 1865 Tenn. LEXIS 64 (1865); State v. Connor, 45 Tenn. 311, 1868 Tenn. LEXIS 13 (1868); Draper v. State, 63 Tenn. 246, 1874 Tenn. LEXIS 239 (1874); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898); Givens v. State, 103 Tenn. 648, 55 S.W. 1107, 1899 Tenn. LEXIS 143 (1899); Goad v. State, 106 Tenn. 175, 61 S.W. 79, 1900 Tenn. LEXIS 146 (1900); Walker v. State, 118 Tenn. 375, 99 S.W. 366, 1906 Tenn. LEXIS 104 (1906).

To impeach a juror after verdict, the evidence must be clear and satisfactory, both as to its source and matter. Mann v. State, 40 Tenn. 373, 1859 Tenn. LEXIS 104 (1859); Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892); Thomas v. State, 109 Tenn. 684, 75 S.W. 1025, 1902 Tenn. LEXIS 99 (1902).

This mode of getting clear of a verdict is resorted to by the worst criminals in the last extremity. Mann v. State, 40 Tenn. 373, 1859 Tenn. LEXIS 104 (1859); Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880); Thomas v. State, 109 Tenn. 684, 75 S.W. 1025, 1902 Tenn. LEXIS 99 (1902).

The impeaching witnesses of a juror after verdict should be examined in open court. Mann v. State, 40 Tenn. 373, 1859 Tenn. LEXIS 104 (1859); Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880).

A new trial should not be granted, if the circuit judge is not satisfied of the truth of the charge that the juror has formed or expressed an opinion. Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885). See Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883).

Great weight to be given to the ruling of the trial judge as to the competency of a juror whose competency is assailed upon a motion for a new trial. Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885). See Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880).

Presumption in favor of the action of the trial judge in regard to jurors, and new trials. Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892); Thomas v. State, 109 Tenn. 684, 75 S.W. 1025, 1902 Tenn. LEXIS 99 (1902).

A juror's affidavit that his decision to vote in favor of the guilty verdict was based on his understanding that he would be “locked up” for the weekend if no verdict were reached could not be considered to render the verdict void. Montgomery v. State, 556 S.W.2d 559, 1977 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. 1977).

Defendant failed to establish a prima facie case of juror bias or partiality based upon a juror question–pertaining to the difference in age between defendant and co-defendant, who was defendant's younger paramour–that was submitted to the trial court because the juror's question was a response to defendant's testimony that preceded it and not an affirmative statement of bias. State v. Pate, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 480 (Tenn. Crim. App. June 29, 2018).

92. — —Selection of Jury by Nationality or Color.

A special jury must be selected with reference to their competency and fitness to try and determine the particular issues involved, and not with reference to their nationality or color. It is error in the court to select one-half of the jury from among colored persons, upon motion of a colored litigant, solely because they are colored. Armstrong v. Southern Express Co., 63 Tenn. 376, 1874 Tenn. LEXIS 266 (1874); Mayor, etc., of Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324, 1892 Tenn. LEXIS 13 (1892); Zanone v. State, 97 Tenn. 101, 36 S.W. 711, 1896 Tenn. LEXIS 120, 35 L.R.A. 556 (1896), overruled in part, State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976).

93. — —Separation of Jury.

The total separation of the jury in a prosecution for a felony where imprisonment in the penitentiary or the death penalty may be inflicted, when wholly unexplained, is an error of substance going to the very core of the right of the state to deprive the defendant of his liberty, and is not simply an error of mere procedure, and deprives the accused of his constitutional right of the judgment of his peers, under Tenn. Const. art. I, § 8, and of a public trial by an impartial jury under Tenn. Const. art. I, § 9; and a conviction and sentence to the penitentiary in such case cannot be sustained, notwithstanding the accused consented to such separation. Long v. State, 132 Tenn. 649, 179 S.W. 315, 1915 Tenn. LEXIS 59 (1915).

94. —Exculpation of Juror.

A juror is a competent witness to exculpate himself when charged with having formed or expressed an opinion as a basis for a new trial. Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880); Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Spence v. State, 83 Tenn. 539, 1885 Tenn. LEXIS 79 (1885); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892). See Mann v. State, 40 Tenn. 373, 1859 Tenn. LEXIS 104 (1859).

Evidence of the good character of the juror in such case is admissible. Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892). See Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883).

Juror's good character strengthens his testimony denying the charges of disqualifying offenses. Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892); Ellis v. State, 92 Tenn. 85, 20 S.W. 500, 1892 Tenn. LEXIS 54 (1892). See Rader v. State, 73 Tenn. 610, 1880 Tenn. LEXIS 193 (1880).

95. —Enforcement of Technical Rules.

For the general rule that technicalities that are empty and without reason, and that tend to defeat law and right, are not favored by the courts, see Isham v. State, 33 Tenn. 111, 1853 Tenn. LEXIS 16 (1853); Hale v. State, 41 Tenn. 167, 1860 Tenn. LEXIS 38 (1860); State v. Farrow, 67 Tenn. 571, 1876 Tenn. LEXIS 7 (1876); Wallace v. State, 70 Tenn. 29, 1878 Tenn. LEXIS 183 (1878); State v. Staley, 71 Tenn. 565, 1879 Tenn. LEXIS 116 (1879); Wallace v. State, 72 Tenn. 309, 1880 Tenn. LEXIS 17 (1880); Woods v. State, 82 Tenn. 460, 1884 Tenn. LEXIS 148 (1884); Glidewell v. State, 83 Tenn. 133, 1885 Tenn. LEXIS 32 (1885); Turner v. State, 89 Tenn. 547, 15 S.W. 838, 1890 Tenn. LEXIS 78 (1891); Givens v. State, 103 Tenn. 648, 55 S.W. 1107, 1899 Tenn. LEXIS 143 (1899); Wilson v. State, 109 Tenn. 167, 70 S.W. 57, 1902 Tenn. LEXIS 67 (1902); Hamblin v. State, 126 Tenn. 394, 150 S.W. 89, 1912 Tenn. LEXIS 64 (1912). On the general principle, see Rivers v. State, 117 Tenn. 235, 96 S.W. 956, 1906 Tenn. LEXIS 43 (1906); Lowry v. Southern R. Co., 117 Tenn. 507, 101 S.W. 1157, 1906 Tenn. LEXIS 61 (1907)citing numerous casesCooper v. State, 123 Tenn. 37, 138 S.W. 826, 1909 Tenn. LEXIS 2 (1911).

All technical rules that subserve the honest end of protecting the just rights of the accused to a fair and impartial trial under the constitution and law will be upheld and enforced, but trivial technicalities that are not the mandate of the constitution or of the statutes, which are of use, and can be of use alone, to enable the guilty to escape or to delay the sentence of just punishment, will not be enforced. Glidewell v. State, 83 Tenn. 133, 1885 Tenn. LEXIS 32 (1885).

96. —Appellate Review.

Burden was on defendant to show deprivation of his right to trial by an impartial jury, where on appeal he alleged that a juror was acquainted with a prosecuting attorney who had given rebuttal testimony at the trial, but no proof had been offered to show that the rebuttal testimony caused the juror to be biased or prejudiced, the juror was not legally disqualified, and the appellate court could find no inherent prejudice. Bowman v. State, 598 S.W.2d 809, 1980 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. 1980).

Defendant's contention that several irregularities that occurred in the jury selection process resulted in structural constitutional error was rejected because the record did not show that any juror was biased or prejudiced, any error in refusing to excuse a juror for cause was not reversible because defendant struck the juror, the trial court was not required to grant defendant additional peremptory challenges, and defendant's claim that a juror willfully failed to disclose his connection to law enforcement was unsubstantiated. State v. Leonard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. Apr. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 506 (Tenn. Aug. 16, 2017).

Petitioner was not entitled to relief on his contention that the jury was exposed to extraneous prejudicial information or subjected to an improper outside influence because a juror's entire testimony regarding her thought process during deliberations was inadmissible under Tenn. R. Evid. 606(b) and the post-conviction court found that the juror's testimony that the trial judge told the jury that the trial had to be completed in a single day and that he did not give them the option to resume deliberations in the morning was not credible. Gatlin v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 527 (Tenn. Crim. App. June 23, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 669 (Tenn. Oct. 4, 2017).

Trial court did not err by failing to discharge a prospective juror for cause because of her expressed difficulties with understanding English because the juror was not propter defectum, as the record showed she spoke English relatively well and unfamiliarity with legal terms was a challenge for many prospective jurors. Because the juror did not serve on the jury and defendant did not show that any of the jurors were incompetent or biased, he was not entitled to relief. State v. Ray, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 320 (Tenn. Crim. App. May 6, 2020).

Defendant did not establish by convincing evidence that the trial court abused its discretion in not excusing a juror for cause due to her views on the death penalty because the trial court found that the juror's responses indicated that the prior capital jury on which she served “considered all options” before imposing a sentence of life without parole and the trial court found that the juror was qualified to serve because she indicated she would fairly consider all sentencing options. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Sept. 18, 2020).

97. —Review in Supreme Court.

The constitutional guaranty of a trial by jury means a trial upon competent legal testimony; and if the supreme court should pass finally upon the facts of the case, after excluding the incompetent and prejudicial testimony admitted, and determine that they warranted the verdict and judgment of sentence, it would be a denial of a jury trial under this constitutional provision. The supreme court will consider and determine the case upon the competent evidence, only where it can see that the incompetent evidence admitted did not prejudice the prisoner, the appellant. Still v. State, 125 Tenn. 80, 140 S.W. 298, 1911 Tenn. LEXIS 8 (Tenn. Sep. 1911).

On appeal from a conviction on the technical record alone, the presumption of guilt obtains. Pope v. State, 149 Tenn. 176, 258 S.W. 775, 1923 Tenn. LEXIS 90 (1924).

98. Jury of the County.

Tenn. Const. art. I, § 9 guarantees the accused a trial by a jury of the county wherein the crime was committed. State v. Tollett, 173 Tenn. 447, 121 S.W.2d 525, 1938 Tenn. LEXIS 26 (1938); State v. Bloodsaw, 746 S.W.2d 722, 1987 Tenn. Crim. App. LEXIS 2376 (Tenn. Crim. App. 1987).

The Tennessee Legislature specifically provided that the reorganization of the trial court system did not have as its purpose the abolition of any court or judicial office. Therefore, the long-standing process for trying an offender in the county in which a crime was committed by a jury that was selected from that county was not abolished by the creation of judicial districts. Kenner v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 440 (Tenn. Crim. App. June 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 875 (Tenn. Oct. 15, 2015).

99. —Summoning Jury from Part of County.

It is reversible error for the trial judge, upon motion of one party, and over the objection of the other party, to order the jury to be selected by the sheriff and summoned from the county, and not from a particular city of the county, where those residing in the city and the county are all equally competent. Mayor, etc., of Jackson v. Pool, 91 Tenn. 448, 19 S.W. 324, 1892 Tenn. LEXIS 13 (1892); Zanone v. State, 97 Tenn. 101, 36 S.W. 711, 1896 Tenn. LEXIS 120, 35 L.R.A. 556 (1896), overruled in part, State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976).

Such method of selecting a jury deprives the accused in a criminal prosecution of his constitutional right to a trial by an “impartial jury of the county.” Zanone v. State, 97 Tenn. 101, 36 S.W. 711, 1896 Tenn. LEXIS 120, 35 L.R.A. 556 (1896), overruled in part, State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976).

In such case, it is not necessary to show injury to the accused. The court will presume injury to him to the extent that he has been deprived of his legal rights in the manner of selecting jurors, and hold the conviction void, and grant a new trial. Zanone v. State, 97 Tenn. 101, 36 S.W. 711, 1896 Tenn. LEXIS 120, 35 L.R.A. 556 (1896), overruled in part, State v. Morgan, 541 S.W.2d 385, 1976 Tenn. LEXIS 544 (Tenn. 1976).

100. Venue.

Defendant convicted of violation of fish and game laws had no standing to challenge constitutionality of statutes establishing county boundaries or to insist that he was tried in wrong county upon contention that statutes changing county boundaries were unconstitutional. State v. Hoffman, 210 Tenn. 686, 362 S.W.2d 231, 1962 Tenn. LEXIS 329 (1962).

Hearing of motion for new trial in county other than county where alleged crime was committed and case was tried did not violate Tenn. Const. art. I, § 9, since motion for new trial was not part of the trial. Lester v. State, 212 Tenn. 338, 370 S.W.2d 405, 1963 Tenn. LEXIS 427 (Tenn. July 15, 1963).

The burden is on the prosecution in a criminal case to prove that the offense was committed in the county laid in the indictment. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497, 1964 Tenn. LEXIS 428 (1964); State v. Chadwick, 750 S.W.2d 161, 1987 Tenn. Crim. App. LEXIS 2773 (Tenn. Crim. App. 1987); State v. Reed, 845 S.W.2d 234, 1992 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. 1992).

The requirement of proof of venue is not only a constitutional right of the accused but also is a fact necessary to the jurisdiction of the court. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497, 1964 Tenn. LEXIS 428 (1964); Clariday v. State, 552 S.W.2d 759, 1976 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1976).

Venue must be proven to establish the jurisdiction of the court to adjudicate the proceeding on its merits. Smith v. State, 607 S.W.2d 906, 1980 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1980).

Venue is a jurisdictional matter and not an element of the crime charged. State v. Bloodsaw, 746 S.W.2d 722, 1987 Tenn. Crim. App. LEXIS 2376 (Tenn. Crim. App. 1987).

The burden is on the prosecution to prove that the offense was committed in the county laid in the indictment. State v. Bloodsaw, 746 S.W.2d 722, 1987 Tenn. Crim. App. LEXIS 2376 (Tenn. Crim. App. 1987).

Although venue is a jurisdictional matter, venue can be waived in certain circumstances, such as when a criminal defendant waives his right to challenge venue upon pleading guilty. Ellis v. Carlton, 986 S.W.2d 600, 1998 Tenn. Crim. App. LEXIS 940 (Tenn. Crim. App. 1998), appeal denied, Ellis v. State, — S.W.2d —, 1998 Tenn. LEXIS 738 (Tenn. Dec. 14, 1998).

Defendant waived any claims regarding venue because he failed to include any reference to venue in his motion for a new trial. State v. Fleming, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. Apr. 12, 2018).

Defendant's challenge to venue failed because there was proof at trial that the victim's body was found in Shelby County, and no proof was presented that the body was taken across a county line after the victim's death and thus, a preponderance of the evidence established that the offense occurred in Shelby County. State v. Allen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 131 (Tenn. Crim. App. Feb. 21, 2020).

Defendant did not raise the issue of venue in his motion for a new trial, nor did he object to the issue of venue at trial, but his claim was not waived; a motion for a new trial was not required given that he elected to proceed with a bench trial, and in case law that the court could not distinguish, a defendant's failure to object to venue at trial did not amount to waiver of venue. State v. Haven, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. June 19, 2020).

101. —Venue as to Particular Offenses.

The venue of a criminal case is in the county where the offense was committed; and the offense is committed in the county where the mortal stroke was given, though the death as a consequence occurs in another county. Riley v. State, 28 Tenn. 646, 1849 Tenn. LEXIS 102 (1849); Craig v. State, 50 Tenn. 227, 1871 Tenn. LEXIS 86 (1871); Edge v. State, 117 Tenn. 405, 99 S.W. 1098, 1906 Tenn. LEXIS 54 (1907).

The indictment and trial for bigamy must be in the county where the bigamous marriage occurred; but for unlawful cohabitation, a distinct offense from bigamy, the indictment and trial must be in the county where the parties unlawfully cohabited. The cohabitation with a second husband or wife under a bigamous marriage, while the former husband or wife is living and undivorced, is an unlawful cohabitation. Finney v. State, 40 Tenn. 544, 1859 Tenn. LEXIS 158 (1859); Craig v. State, 50 Tenn. 227, 1871 Tenn. LEXIS 86 (1871); Keneval v. State, 107 Tenn. 581, 64 S.W. 897, 1901 Tenn. LEXIS 113 (1901).

An accessory before the fact to the crime of murder is indictable and triable in the county where the murder was actually consummated or committed, and not in another county where he counseled and hired it to be done and where he was when the murder was committed. State v. Ayers, 67 Tenn. 96, 1874 Tenn. LEXIS 337 (1874); Edge v. State, 117 Tenn. 405, 99 S.W. 1098, 1906 Tenn. LEXIS 54 (1907).

A prisoner in custody, knowing his destination, and stealing property on the way in one county and taking the same to his destination in another county, is indictable and triable for the offense in the county of his destination. His act in taking the stolen property to the county of his destination was voluntary, and his destination was certain, and certainly known by him. State v. Margerum, 68 Tenn. 362, 1878 Tenn. LEXIS 26 (1878); State v. Matthews, 87 Tenn. 689, 11 S.W. 793, 1889 Tenn. LEXIS 18 (1889).

Although venue for accepting a bribe lies only in the county where the bribe was accepted, it is sufficient if there was constructive acceptance of the bribe by defendant's agent, who subsequently turned it over to defendant. Clariday v. State, 552 S.W.2d 759, 1976 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1976).

Venue for conspiracy trial was proper in county where certain acts in furtherance of the criminal conspiracy took place. State v. Reed, 845 S.W.2d 234, 1992 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. 1992).

In a prosecution for forgery, circumstantial evidence was sufficient to establish that the allegedly forged instrument was executed in Morristown, Tennessee, and that, therefore, venue was proper in Hamblen County. State v. Smith, 926 S.W.2d 267, 1995 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. 1995).

In defendant's trial for rape of a child, venue was proper under Tenn. Const. art. I, § 9 because the victim testified that the offense occurred at the home she shared with her mother, defendant, and other relatives, and the home was located in the county where the trial was being held. State v. Starks, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 559 (Tenn. Crim. App. July 24, 2008), appeal dismissed, — S.W.3d —, 2012 Tenn. LEXIS 638 (Tenn. Sept. 12, 2012).

Tennessee had territorial jurisdiction and the county was the proper venue for defendant's trial for conspiracy to sell over 300 grams of methamphetamine because the evidence showed that one of co-conspirator's transported methamphetamine from Atlanta to the county in Tennessee. State v. Castillo, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 472 (Tenn. Crim. App. July 9, 2020).

102. —Change of Venue.

The accused may waive his constitutional right to a trial in the county where the offense was committed, and a change of the venue may be made upon his application, assent, or consent in open court. Dula v. State, 16 Tenn. 511, 1835 Tenn. LEXIS 117 (1835); Ellick v. State, 31 Tenn. 325, 1851 Tenn. LEXIS 78 (1851); Armstrong v. State, 41 Tenn. 338, 1860 Tenn. LEXIS 72 (1860); Kirk v. State, 41 Tenn. 344, 1860 Tenn. LEXIS 73 (1860); State v. Denton, 46 Tenn. 539, 1869 Tenn. LEXIS 95 (1869); Craig v. State, 50 Tenn. 227, 1871 Tenn. LEXIS 86 (1871); State v. Bowman, 1 Shan. 469 (1875).

The record must show that the change of venue was made upon the prisoner's application, assent, or consent in open court. State v. Denton, 46 Tenn. 539, 1869 Tenn. LEXIS 95 (1869); State v. Bowman, 1 Shan. 469 (1875).

Venue in a criminal case under Tenn. Const. art. I, § 9 is in the county in which the crime shall have been committed and cannot be changed except upon application of the accused. Chadwick v. State, 201 Tenn. 57, 296 S.W.2d 857, 1956 Tenn. LEXIS 465 (1956).

Since a defendant is entitled to a trial in the county where the crimes were committed, action of trial court in transferring the situs of a trial over defendant's objection to a county other than where the crimes were committed was an error requiring reversal of defendant's conviction, despite the fact that the members of the petit jury were all residents of the county where the crimes were committed. State v. Upchurch, 620 S.W.2d 540, 1981 Tenn. Crim. App. LEXIS 366 (Tenn. Crim. App. 1980).

Change of venue motion constitutes a waiver of party's rights under Tenn. Const. art. I, § 9. State v. Nichols, 877 S.W.2d 722, 1994 Tenn. LEXIS 135 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 202 (1994), cert. denied, Nichols v. Tennessee, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791, 1995 U.S. LEXIS 589 (1995).

Unless defendant is prejudiced, the administration of justice harmed, or the trial court abuses its discretion, no reversible error occurs when a trial court judge moves the trial to another for the limited purpose of selecting a jury, and once the jury is selected and sworn, transports the jury to county where the crimes were committed in response to a defendant's motion for a change of venue. State v. Nichols, 877 S.W.2d 722, 1994 Tenn. LEXIS 135 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 202 (1994), cert. denied, Nichols v. Tennessee, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791, 1995 U.S. LEXIS 589 (1995).

In a capital murder case, change of venue was improper, where a meticulous and detailed jury selection process was conducted, the nature and conduct of the pre-trial publicity was informative but not sensational or unfairly prejudicial, and although the news accounts affected the area in which the venire was later selected, the court found that most of the pre-trial publicity occurred several months before the trial and was not prejudicial or pervasive either shortly before or during the trial. State v. Davidson, 121 S.W.3d 600, 2003 Tenn. LEXIS 1007 (Tenn. 2003), cert. denied, Davidson v. Tennessee, 541 U.S. 1049, 158 L. Ed. 2d 743, 124 S. Ct. 2174, 2004 U.S. LEXIS 3512, 72 U.S.L.W. 3711 (2004).

In defendant's capital murder case, the court did not err by denying his motion for a change of venue made on the last day of jury selection because, while the record demonstrated that many prospective jurors knew about the facts surrounding the crime, defendant failed to argue in his brief that any of the jurors who actually sat and rendered verdicts were prejudiced against him as a result of the pretrial publicity given to the crime by the media. State v. Johnson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 132 (Tenn. Crim. App. Mar. 5, 2012), aff'd, 401 S.W.3d 1, 2013 Tenn. LEXIS 355 (Tenn. Apr. 19, 2013).

103. —Proof of Venue.

To warrant a conviction, the venue must be proved, and the record, the bill of exceptions, must show that the venue was proved, where it purports to contain all the evidence. Ewell v. State, 14 Tenn. 363, 14 Tenn. 364, 1834 Tenn. LEXIS 94 (1834); Elijah v. State, 21 Tenn. 455, 1841 Tenn. LEXIS 46 (1841); Mayes v. State, 50 Tenn. 430, 1872 Tenn. LEXIS 10 (1872); Alexander v. State, 50 Tenn. 475, 1872 Tenn. LEXIS 18 (1872).

Where defendant was charged with breaking and entering the “Medical Pharmacy Center, a business house, in the night time” and the only evidence as to the location of the place was that it was in Bristol, there was no proof of venue since the city of Bristol is on the line separating the states of Tennessee and Virginia. Kelly v. State, 202 Tenn. 660, 308 S.W.2d 415, 1957 Tenn. LEXIS 452 (1957).

In a criminal case, venue is a jurisdictional fact which must be proved by the preponderance of the evidence. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497, 1964 Tenn. LEXIS 428 (1964); State v. Bennett, 549 S.W.2d 949, 1977 Tenn. LEXIS 601 (Tenn. 1977); State v. Chadwick, 750 S.W.2d 161, 1987 Tenn. Crim. App. LEXIS 2773 (Tenn. Crim. App. 1987).

The prosecution carried its burden of establishing venue by a preponderance of the evidence, where its evidence consisted solely of testimony by the undercover agent who bought the contraband that the sheriff had told him that the sale had taken place in Williamson County, and where defendant did not attempt to dispute venue in the trial court. State v. Bennett, 549 S.W.2d 949, 1977 Tenn. LEXIS 601 (Tenn. 1977).

Venue is not an ingredient of a criminal offense but it is necessary to prove venue to establish the fact that the court trying the case has jurisdiction. Wright v. State, 2 Tenn. Crim. App. 95, 451 S.W.2d 707, 1969 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1969).

Where the state failed to prove that the defendant committed the crime in that county, venue was not established. Daniel v. State, 489 S.W.2d 852, 1972 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. 1972).

Venue may be shown by a preponderance of the evidence which may be either direct or circumstantial evidence or both. Smith v. State, 607 S.W.2d 906, 1980 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1980); State v. Bloodsaw, 746 S.W.2d 722, 1987 Tenn. Crim. App. LEXIS 2376 (Tenn. Crim. App. 1987).

A jury is entitled to draw reasonable inferences from proven facts and this includes the issue of venue. Smith v. State, 607 S.W.2d 906, 1980 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1980).

Courts may take judicial notice of the location of public institutions, such as state prisons or penitentiaries, for the purpose of holding venue established. Smith v. State, 607 S.W.2d 906, 1980 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. 1980).

With reference to venue, slight evidence will be enough to carry the prosecution's burden of preponderance if it is uncontradicted. State v. Bloodsaw, 746 S.W.2d 722, 1987 Tenn. Crim. App. LEXIS 2376 (Tenn. Crim. App. 1987).

Venue may be established upon the uncorroborated testimony of an accomplice. State v. Anderson, 985 S.W.2d 9, 1997 Tenn. Crim. App. LEXIS 1296 (Tenn. Crim. App. 1997).

Sufficient evidence existed to support that Hamblen county was a proper venue for a prosecution, because there was sufficient evidence to support a jury's finding that defendant two and defendant three aided, solicited, or attempted to aid defendant one in the commission of an offense while in Hamblen county because: (1) Defendant three and defendant one lived together in Hamblen county, and she was present when defendant one received and fired a shot from the murder weapon; (2) Defendant two was charged with drug crimes in Hamblen county, where he lived, and he helped to have the victim murdered to avoid those charges; and (3) Defendant two's discussions with defendant one about the crime took place at defendant two's Hamblen county home. State v. Smith, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 873 (Tenn. Crim. App. Nov. 19, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 126 (Tenn. Feb. 25, 2008), dismissed, Jarnigan v. Johnson, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 109701 (E.D. Tenn. Aug. 17, 2015).

Sufficient evidence existed to support that Hamblen County was a proper venue for a prosecution, because: (1) Defendant agreed to kill a victim while in Hamblen county; (2) Defendant received the murder weapon while at his sister's house, also located in Hamblen county; (3) Defendant fired the murder weapon while he was at his sister's house, and a bullet from the murder weapon was found there; and (4) While the actual shooting took place in Jefferson county, the state presented sufficient evidence for the jury to infer that defendant determined to kill the victim while he was in Hamblen county and that he thereby committed an element of the offense of premeditated murder while in Hamblen County. State v. Smith, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 873 (Tenn. Crim. App. Nov. 19, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 126 (Tenn. Feb. 25, 2008), dismissed, Jarnigan v. Johnson, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 109701 (E.D. Tenn. Aug. 17, 2015).

On appeal from his criminal convictions, defendant's argument that the state failed to prove venue in Smith County by a preponderance of the evidence was without merit. The state presented sufficient evidence to support the jury's determination that the victim died in Smith County; moreover, the jury was entitled to disbelieve any implication contained in defendant's testimony that the victim died in another county. State v. Trusty, 326 S.W.3d 582, 2010 Tenn. Crim. App. LEXIS 339 (Tenn. Crim. App. Apr. 23, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 906 (Tenn. Sept. 27, 2010).

Victim testified that defendant began pinching her nipples and fondling her genital area while they were traveling in his vehicle on Lebanon Road toward Lebanon, Tennessee, and that he continued the same behavior after turning his vehicle around, stopping only when they reached his Davidson County home, and such testimony was sufficient to establish venue in Davidson County by a preponderance of the evidence. State v. Jones, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 236 (Tenn. Crim. App. Apr. 2, 2015).

Testimony from the individual who bought the victim's house that the warranty deed he received stated that it was located in Robertson County and from the victim's daughter that when she lived at the house she attended school in Robertson county, registered her driver's license there, and registered to vote there was sufficient to establish venue. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Dec. 2, 2016).

Evidence was sufficient to support defendant's conviction of theft of property valued between $10,000 and $60,000 because when a trooper stopped defendant's vehicle he was transporting two utility vehicles, the physical descriptions and VINS of the utility vehicles matched the utility vehicles stolen from the victim, and the victim testified that his business from which the utility vehicles were stolen was located in a particular county. State v. Demling, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 68 (Tenn. Crim. App. Jan. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 359 (Tenn. June 6, 2018).

While the record contained evidence from which it could be inferred that the offenses at the home occurred in Obion County, the record did not support the conclusion that the touching that was the basis of the conviction occurred at the home; defendant's stepdaughter's testimony at trial clarified that the incident she had described, which formed the basis of the charge, occurred elsewhere, and thus venue was not established by a preponderance of the evidence as to this aggravated sexual battery conviction. State v. Haven, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. June 19, 2020).

104. Jurisdiction.

The jurisdiction of the circuit court is limited to crimes which occur within the territorial boundaries of the county in which it sits. State v. Hill, 847 S.W.2d 544, 1992 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. 1992).

A court may not try an individual on an indictment issued by another county, because such a trial would necessarily violate the court's jurisdictional limitations: that is, either the indictment would be outside the jurisdiction of the court which returned it or the trial would be outside the jurisdiction of the court in which the trial would be conducted. State v. Hill, 847 S.W.2d 544, 1992 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. 1992).

Although the victim was first beaten in Kentucky, jurisdiction was proper in Tennessee because testimony established that the victim's death did not come until after he was shot in Tennessee. State v. Knight, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Dec. 20, 2018).

Traffic stop occurred in Memphis where the marijuana was discovered inside the truck, and witnesses testified that defendant was driving the truck, which was stopped in Shelby County; therefore, defendant was in possession of the marijuana found inside the truck during the stop, and both venue and jurisdiction were adequately established at trial. State v. Hampton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Mar. 12, 2019).

105. Right Against Self-Incrimination.

The provision protecting the accused from compulsion to give evidence against himself was particularly intended to protect him from compulsion to give evidence against himself that might lead to a criminal prosecution against him, and does not protect a witness from compulsion to testify where his answer may subject him to a civil suit or liability only. Cook v. Corn, 1 Tenn. 340, 1808 Tenn. LEXIS 42 (1808); Zollicoffer v. Turney, 14 Tenn. 297, 1834 Tenn. LEXIS 78 (Tenn. Mar. 1834).

A minor of 20 years of age had the legal capacity to elect to go voluntarily before the grand jury and testify with reference to the commission of a crime, and having volunteered his testimony he acquired no immunity and no constitutional right was violated by his appearance or subsequent conviction. Colley v. State, 179 Tenn. 651, 169 S.W.2d 848, 1942 Tenn. LEXIS 65 (1943), cert. denied, Colley v. Tennessee, 320 U.S. 766, 64 S. Ct. 71, 88 L. Ed. 457, 1943 U.S. LEXIS 415 (1943).

Where a defendant pled guilty to murder on advice of his attorney that, if he did not, he might receive the death penalty, and on the threat of his attorney to withdraw from the case if he did not so plead, the plea was not obtained by coercion. Davis v. Bomar, 344 F.2d 84, 1965 U.S. App. LEXIS 5844 (6th Cir.), cert. denied, 382 U.S. 883, 86 S. Ct. 177, 15 L. Ed. 2d 124, 1965 U.S. LEXIS 504 (1965).

If testimony sought from witness in proceeding to revoke suspended sentence of another person would have tended to incriminate the witness or expose him to a criminal charge he had a right to refuse to testify. Bledsoe v. State, 215 Tenn. 553, 387 S.W.2d 811, 1965 Tenn. LEXIS 633 (1965).

Defendant's privilege against self-incrimination was not violated where field sobriety tests were administered since they are real or physical evidence as opposed to testimonial or communicative evidence. Trail v. State, 526 S.W.2d 127, 1974 Tenn. Crim. App. LEXIS 238 (Tenn. Crim. App. 1974).

Defendant was not denied a fair trial by the fact he wore prison clothes at the trial. Carroll v. State, 532 S.W.2d 934, 1975 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. 1975).

When there is a conflict between a defendant's right of compulsory process and a witness's right against self-incrimination, the latter is the stronger and paramount right. Frazier v. State, 566 S.W.2d 545, 1977 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. 1977).

It is not a violation of the privilege against self-incrimination to admit into evidence a defendant's refusal to submit to blood alcohol testing when stopped for driving under the influence. State v. Wright, 691 S.W.2d 564, 1984 Tenn. Crim. App. LEXIS 2980 (Tenn. Crim. App. 1984).

When the restrictions in Tenn. R. Crim. P. 12.2, regarding court ordered mental examinations are properly followed, the proceedings do not violate the right against self-incrimination. State v. Martin, 950 S.W.2d 20, 1997 Tenn. LEXIS 315 (Tenn. 1997).

Where defendant made a statements at the church while a search was being executed, those statements were not required to be suppressed, as defendant was not required to stay at the church while the search was going on, and defendant did not make the statements in response to police questioning. State v. McCary, 119 S.W.3d 226, 2003 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 674 (Tenn. July 7, 2003).

Although it was undisputed that defendant, at the time of his statement, was in custody and had invoked his right to counsel, his spontaneous offer to talk about the case in exchange for a private cell was neither initiated by the officer nor was it interrogation, and therefore, defendant's fifth amendment rights were not violated. State v. D'Antonio, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1152 (Tenn. Crim. App. Oct. 26, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 389 (Tenn. 2006), dismissed, D'Antonio v. Carpenter, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 90998 (M.D. Tenn. July 3, 2014).

Testimony from an officer about defendant's remarks made prior to receiving a Miranda warning was harmless as the same information came out during other testimony State v. Miller, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 14, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 91 (Tenn. Jan. 29, 2007), dismissed, Miller v. Howerton, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 22305 (E.D. Tenn. Feb. 25, 2015).

In a capital sentencing proceeding, by finding that defendant's statements of remorse opened the door to full cross-examination on the circumstances of the crimes, the court violated defendant's right to avoid self-incrimination because defendant had already admitted his culpability for the crimes charged by pleading guilty, and although the evidence already before the jury gave them a fairly clear picture of what happened during the attack, hearing such details from third parties did not have nearly the same impact as hearing detailed, graphic descriptions from defendant. State v. Riels, 216 S.W.3d 737, 2007 Tenn. LEXIS 142 (Tenn. 2007).

Although a detective should not have commented about defendant's invocation of his right to remain silent, the testimony was not deliberately elicited by the state, and the prosecution made no further reference to the contested statement. The record reflected that defense counsel did not request a curative instruction, even when specifically given the opportunity by the trial court. State v. Blackburn, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 563 (Tenn. Crim. App. July 20, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 988 (Tenn. Oct. 19, 2011).

Because the victim's mother qualified as a state actor and because her conduct overbore the defendant's will to resist confessing, the trial court should have suppressed the audio recording of the telephone call as violative of defendant's state and federal constitutional rights. State v. Ackerman, 397 S.W.3d 617, 2012 Tenn. Crim. App. LEXIS 510 (Tenn. Crim. App. July 13, 2012), overruled, State v. Sanders, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

Defendant did not make an unambiguous invocation of his right to remain silent by his request to speak to officers other than the ones who were interviewing him at the time. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

In defendant's death penalty case, defendant's confession was voluntary because he was twenty-eight years old, he had completed college courses, he was familiar with the legal system, none of the interviews were prolonged, and there was no evidence that defendant was physically abused, threatened, or deprived of food, sleep, or medical attention. State v. Freeland, 451 S.W.3d 791, 2014 Tenn. LEXIS 640 (Tenn. Sept. 17, 2014), cert. denied, Freeland v. Tennessee, 191 L. Ed. 2d 389, 135 S. Ct. 1428, — U.S. —, 2015 U.S. LEXIS 1112 (U.S. 2015).

Trial court did not err in denying defendant's motion to suppress, as there was no evidence defendant made statements to police prior to being advised of her Miranda rights, which she knowingly, voluntarily, and intelligently waived State v. Taylor, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Sept. 30, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 70 (Tenn. Jan. 16, 2015), cert. denied, Taylor v. Tennessee, 192 L. Ed. 2d 158, 135 S. Ct. 2368, — U.S. —, 2015 U.S. LEXIS 3523 (U.S. 2015).

Trial court did not err in denying defendant's motion to suppress, given that his statements were not found to be involuntary; defendant was familiar with the criminal process, did not complain of pain, was given food and drink, plus officers did not make any intentional misrepresentations to defendant about the evidence in the case. State v. Sanders, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Dec. 23, 2015).

Trial court did not err in denying defendant's motion to suppress his statement to the media because nothing in the record indicated the media request occurred as a result of state action, rather, officers passed on the media request for an interview, and defendant agreed to the same; and two police chiefs advised defendant he did not have to give a statement to the media and, in fact, should not do so. State v. Beverly, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1029 (Tenn. Crim. App. Nov. 28, 2017).

Trial court properly denied defendant's motion to suppress because he was not in custody and his statement was voluntarily given, as his visual impairment did not create a per se custodial environment, the trial court found that there were no threats, promises, inducements, or coercion by the police, and the officers testified that defendant was not arrested, was not in custody, and was free to leave at any time. State v. Bohannon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 17, 2018).

While the State commented on defendant's behavior in the courtroom, the comment was not such that the jury could have construed it as a reference to defendant's decision not to testify at trial. State v. Smoot, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 739 (Tenn. Crim. App. Oct. 1, 2018).

Trial court did not plainly err by allowing the State to cross-examination defendant about his failure to tell anyone about his alleged accidental fall with the victim before receiving his Miranda warnings because the first time defendant stated that the victim's injuries were the result of an accident fall was during his testimony at trial and therefore it was proper for the State to impeach that testimony. In addition, there was overwhelming evidence of defendant's guilt presented at trial. State v. Groves, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 12, 2020).

106. —Extent of Right.

A witness properly subpoenaed before the grand jury to testify as to gaming must answer questions about unlawful gaming, although his answers might show him guilty of unlawful gaming, as he cannot be prosecuted therefor; and for his refusal to testify in reference thereto, he is guilty of contempt, and may be fined and imprisoned. Hirsch v. State, 67 Tenn. 89, 1874 Tenn. LEXIS 335 (1874); Warner v. State, 81 Tenn. 52, 1884 Tenn. LEXIS 7 (1884); Brizendine v. State, 103 Tenn. 677, 54 S.W. 982, 1899 Tenn. LEXIS 146 (1899); Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819, 1896 U.S. LEXIS 2190 (1896).

Evidence obtained by private persons or petty officers, through trespasses and unreasonable searches and seizures, is not, on that account, inadmissible as in violation of this constitutional provision against compelling the accused to give evidence against himself. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

An objection that the conduct of officers in searching defendant's automobile and seizing liquor therein, without search warrant, violated his constitutional rights against unreasonable search and seizure, does not raise the objection that thereby the accused was compelled to give evidence against himself, contrary to this constitutional provision. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 1921 Tenn. LEXIS 94, 20 A.L.R. 639 (1922).

Where defendant in plea in abatement, sworn to by him, alleged facts occurring before the grand jury, the fact that he was compelled to answer from whom he got his information when put upon the stand does not violate his right not to incriminate himself, since the issue was not as to his guilt and since the realization of the constitutional privilege is to be had, not in the proceeding in which the witness is called to testify, but in the proceeding growing out of his testifying or refusing to testify. Bowman v. State, 160 Tenn. 305, 23 S.W.2d 658, 1929 Tenn. LEXIS 106 (1930).

Tenn. Const. art. I, § 9 cannot be invoked to prevent the disclosure of facts necessary to a legitimate inquiry for use as the basis for a report to the legislature and was not designed to prevent the disclosure of facts within the knowledge of a witness where he is given assurance by the state that the facts revealed by him will not be used as a basis for the infliction of punishment. Rushing v. Tennessee Crime Comm'n, 173 Tenn. 308, 117 S.W.2d 4, 1938 Tenn. LEXIS 18 (1938).

Defendants in an obscenity case could not refuse to produce in open court the motion picture alleged to be obscene on the grounds that to do so would violate their rights against self-incrimination, since the motion picture was not a private paper and was not owned by the individual defendants and the corporation had no right against self-incrimination. Taylor v. State, 529 S.W.2d 692, 1975 Tenn. LEXIS 584 (Tenn. 1975).

Extra-judicial declarations against pecuniary or penal interests are admissible against others where the maker thereof is present in court and refuses to testify on the ground of self-incrimination. Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769, 1975 Tenn. LEXIS 570 (Tenn. 1975).

One is protected only against compulsory furnishing of evidence against oneself, but such protection does not extend to nonprivileged communications to third parties. Sheets v. Hathcock, 528 S.W.2d 47, 1975 Tenn. Crim. App. LEXIS 319 (Tenn. Crim. App. 1975), overruled in part, State v. Harrison, 270 S.W.3d 21, 2008 Tenn. LEXIS 779 (Tenn. 2008), overruled in part, State v. McLain, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. Feb. 26, 2013).

Where state tapped informer's phone with his knowledge and consent, and defendant made damaging statement over the phone to the informer, defendant's right not to be compelled to give evidence against himself was not violated since this right does not extend to nonprivileged communications to third parties, even where the third party is a government informer, for as long as defendant is not in custody or subject to interrogation, he need not be informed of his constitutional rights. Clariday v. State, 552 S.W.2d 759, 1976 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. 1976).

The Tennessee prohibition against self-incrimination is not broader or different than U.S. Const. amend. 5, in any application thereof because of the use of the word “evidence” instead of the word “witness.” Delk v. State, 590 S.W.2d 435, 1979 Tenn. LEXIS 511 (Tenn. 1979).

The constitutional privilege against self-incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution. State ex rel. Shriver v. Leech, 612 S.W.2d 454, 1981 Tenn. LEXIS 412 (Tenn. 1981), cert. denied, Lipman v. Leech, 454 U.S. 836, 102 S. Ct. 139, 70 L. Ed. 2d 116, 1981 U.S. LEXIS 3325 (1981).

Clothing is not considered “testimonial” or “communicative” in nature and thus it is not protected against compelled disclosure. State v. Barger, 612 S.W.2d 485, 1980 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1980).

Results of a truth serum interview are inadmissible on the issue of guilt or innocence. State v. Delk, 692 S.W.2d 431, 1985 Tenn. Crim. App. LEXIS 2991 (Tenn. Crim. App. 1985).

In a proceeding by the board of dentistry against a dentist for practicing without a license, the privilege against self-incrimination did not apply to protect the dentist from being compelled to answer incriminating requests for admission because the statute of limitations had expired on any potential criminal violations. Richardson v. Board of Dentistry, 913 S.W.2d 446, 1995 Tenn. LEXIS 788 (Tenn. 1995).

Defendant's rights under U.S. Const. amend. V and Tenn. Const. art. I, § 9 were not violated when defendant refused to answer whether defendant molested children in the past; the trial court did not draw any adverse inferences about the facts of the crime from defendant's refusal to answer, but candor was a relevant factor in assessing a defendant's potential for rehabilitation, and the lack of candor militated against the grant of probation. State v. Souder, 105 S.W.3d 602, 2002 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. 2002), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 269 (Tenn. Mar. 17, 2003).

Although polygraph test results, testimony concerning test results, and offers or refusals to submit to polygraph tests are not admissible into evidence, voluntary statements made before, during, or after a polygraph test can be admitted, provided that the statements also are consistent with other applicable constitutional and evidentiary rules. State v. Damron, 151 S.W.3d 510, 2004 Tenn. LEXIS 993 (Tenn. 2004).

Testimony from an officer about defendant's remarks made prior to receiving a Miranda warning was harmless as the same information came out during other testimony State v. Miller, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 694 (Tenn. Crim. App. Sept. 14, 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 91 (Tenn. Jan. 29, 2007), dismissed, Miller v. Howerton, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 22305 (E.D. Tenn. Feb. 25, 2015).

Defendants cannot be compelled to give self-incriminating testimony without a grant of immunity. State v. Patton, 392 S.W.3d 616, 2011 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 24, 2011).

In a witness's mother's murder trial, the court did not abuse its discretion by ordering the witness to answer the state's questions because, although the trial court threatened to hold the witness in contempt for refusing to testify, the court later informed the witness that it was possible the state could link him to the crime scene, he could refuse to answer the state's questions, and the court would not hold him in contempt for doing so. The witness chose to testify and never invoked his self-incrimination privilege. State v. Whaley, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 468 (Tenn. Crim. App. June 23, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1037 (Tenn. Oct. 18, 2011).

Defendant's conviction for first-degree felony murder committed during the perpetration of attempted robbery was appropriate because there was no error in the denial of his motion to suppress. The fact that he stated that he did not shoot the victim was not responsive to a sergeant informing him about the murder charge; the officers' informing defendant of the charge did not amount to an interrogation. State v. Jefferson, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 800 (Tenn. Crim. App. Oct. 27, 2011), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 228 (Tenn. Mar. 12, 2015).

Constitutional right against unreasonable searches and seizures is substantively different from the constitutional right against compulsory self-incrimination. Because the Burroughs test was tailored for the more fragile Fourth Amendment rights, the Supreme Court of Tennessee does not find it appropriate to import the test into the realm of the Fifth Amendment or this section. State v. Sanders, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

Once a law enforcement officer has knowledge that a defendant has been read his Miranda rights and has declined to speak with the police, that officer should not participate in the questioning of that defendant or allow another officer to do so, and no legal authority states that it is an accused's burden to inform law enforcement that he has invoked his right to remain silent. State v. Pike, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 264 (Tenn. Apr. 12, 2017).

Trial court abused its discretion by excluding defendant's voluntary statements made during the post-polygraph interview; the statements amounted to a confession and the probative value was very high, the trial court incorrectly evaluated the danger of unfair prejudice resulting from defendant's presumed response to the evidence, he could provide context for the statements even without mention of the polygraph, and while he could not be required to testify to provide context, the analysis had to focus on his statements, not his reaction to them. State v. McCaleb, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. June 1, 2018).

107. —Confessions.

Confessions must be received with the greatest caution, and they must be free from suspicion to be admissible. State v. Fields, 7 Tenn. 140, 1823 Tenn. LEXIS 18 (1823); McGlothlin v. State, 42 Tenn. 223, 1865 Tenn. LEXIS 46 (1865); Wilson v. State, 50 Tenn. 232, 1871 Tenn. LEXIS 87 (1871), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), questioned, Momon v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 1241 (Tenn. Crim. App. Dec. 9, 1997).

Confession of guilt made by the accused under arrest, under the influence of the hope that such confession will be to his advantage, or the fear that if he does not confess, it will be the worse for him, is inadmissible, when such hopes or fears were excited by officers, guards, prosecutors, or private persons. Hudson v. State, 17 Tenn. 408, 1836 Tenn. LEXIS 71 (1836); McGlothlin v. State, 42 Tenn. 223, 1865 Tenn. LEXIS 46 (1865); Maples v. State, 50 Tenn. 408, 1872 Tenn. LEXIS 7 (1872); Honeycutt v. State, 67 Tenn. 371, 1875 Tenn. LEXIS 59 (1875); Beggarly v. State, 67 Tenn. 520, 1875 Tenn. LEXIS 79 (1875); State v. Collie, 3 Shan. 803 (1878).

Confessions improperly obtained, so far as verified by other facts, discovered thereby, are admissible in evidence. Hudson v. State, 17 Tenn. 408, 1836 Tenn. LEXIS 71 (1836); Deathridge v. State, 33 Tenn. 75, 1853 Tenn. LEXIS 8 (1853); McGlothlin v. State, 42 Tenn. 223, 1865 Tenn. LEXIS 46 (1865); Rice v. State, 50 Tenn. 215, 1871 Tenn. LEXIS 85 (1871); White v. State, 50 Tenn. 338, 1872 Tenn. LEXIS 1 (1872); Clemons v. State, 72 Tenn. 23, 1879 Tenn. LEXIS 2 (1879). But see State v. Doherty, 2 Tenn. 79, 2 Tenn. 80, 1806 Tenn. LEXIS 4 (1806), superseded by statute as stated in, State v. Rollins, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 12 (Tenn. Crim. App. Jan. 9, 1995).

The competency and admissibility of confessions offered as evidence is a preliminary question to be determined by the trial judge, and not by the jury. Boyd v. State, 21 Tenn. 39, 1840 Tenn. LEXIS 24 (1840); Self v. State, 65 Tenn. 244, 1873 Tenn. LEXIS 343 (1873).

A confession of guilt, freely and voluntarily made by the accused, appearing to proceed merely from a sense of guilt, and not from the influence of hope or fear in any degree, is admissible and competent evidence. In the absence of influence and motive, the presumption is that the confession flows from a strong sense of guilt. Great weight and credit are justly due to a confession of this kind. Deathridge v. State, 33 Tenn. 75, 1853 Tenn. LEXIS 8 (1853); McGlothlin v. State, 42 Tenn. 223, 1865 Tenn. LEXIS 46 (1865); Whiteside v. State, 44 Tenn. 175, 1867 Tenn. LEXIS 28 (1867), overruled on other grounds, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976); Wilson v. State, 50 Tenn. 232, 1871 Tenn. LEXIS 87 (1871), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), questioned, Momon v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 1241 (Tenn. Crim. App. Dec. 9, 1997) (but the corpus delicti must be clearly established by the proof); Maples v. State, 50 Tenn. 408, 1872 Tenn. LEXIS 7 (1872).

Subsequent confessions made under the same influences as the previously and improperly extorted confession are likewise inadmissible in evidence. The presumption is that the same influences continued until the contrary is made to appear. The burden rests upon the state to remove such presumption. Deathridge v. State, 33 Tenn. 75, 1853 Tenn. LEXIS 8 (1853); McGlothlin v. State, 42 Tenn. 223, 1865 Tenn. LEXIS 46 (1865); Wilson v. State, 50 Tenn. 232, 1871 Tenn. LEXIS 87 (1871), overruled, State v. Burkhart, 541 S.W.2d 365, 1976 Tenn. LEXIS 542 (Tenn. 1976), questioned, Momon v. State, — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 1241 (Tenn. Crim. App. Dec. 9, 1997); Maples v. State, 50 Tenn. 408, 1872 Tenn. LEXIS 7 (1872); State v. Henry, 65 Tenn. 539, 1873 Tenn. LEXIS 405 (1873).

The mere fear of the ultimate consequences of his crime, such as perhaps every criminal feels when arrested and confronted by his accuser, will not render a confession inadmissible. Honeycutt v. State, 67 Tenn. 371, 1875 Tenn. LEXIS 59 (1875).

A confession not made freely or voluntarily, but induced by hope or fear, is not competent evidence against the accused. Cross v. State, 142 Tenn. 510, 221 S.W. 489, 1919 Tenn. LEXIS 78, 9 A.L.R. 1354 (1920).

A corollary issue to the competency of a confession is the issue of whether the accused has sufficient mental capability to comprehend and waive his constitutional rights. State v. Green, 613 S.W.2d 229, 1980 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1980).

Mental incapacity which does not render one incompetent to be a witness does not render his confession incompetent. State v. Green, 613 S.W.2d 229, 1980 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1980).

The general rule is that a confession is admissible even though it was made at a time when the accused was under the influence of narcotic drugs or alcohol, if at that time the accused was capable of making a narrative of past events or of stating his own participation in the crime. State v. Green, 613 S.W.2d 229, 1980 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1980).

There was no constitutional basis upon which to invalidate the defendant's inadvertent jailhouse confession, given to and taped by his aunt, even though she was working undercover for the police at the time. State v. Branam, 855 S.W.2d 563, 1993 Tenn. LEXIS 197 (Tenn. 1993).

Trial court properly precluded admission of a confession where the defendant had gone to police seeking “protective custody” because he was threatened by rape victim's father and was then interrogated and gave statements after he had made a request for counsel. State v. Mosier, 888 S.W.2d 781, 1994 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. 1994).

In a prosecution for aggravated sexual assault, defendant was not compelled to make incriminating statements to a counselor by a social worker whose advice to him to seek counseling did not promise leniency or threaten him with prosecution. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

After considering all relevant factors, the court concluded the juvenile defendant knowingly and voluntarily confessed to robbery and murder. State v. Carroll, 36 S.W.3d 854, 1999 Tenn. Crim. App. LEXIS 1346 (Tenn. Crim. App. 1999).

The test of voluntariness of confessions under the Tennessee constitution is broader and more protective of individual rights than the test of voluntariness under the United States constitution. State v. Phillips, 30 S.W.3d 372, 2000 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. 2000).

Coercive police activity is a necessary predicate to the finding that a confession is not voluntary; the crucial question is whether the behavior of the state's officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined. State v. Phillips, 30 S.W.3d 372, 2000 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. 2000).

A noncustodial interrogation must be voluntary in order to be admissible; confessions that are involuntary, i.e., the product of coercion, whether it be physical or psychological, are not admissible. State v. Phillips, 30 S.W.3d 372, 2000 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. 2000).

The court did not err in finding sufficient coercion and promises of leniency by the state actors to overbear the defendant's will and render statements involuntary, where the interrogator's transcript included: (1) Misrepresentation by an investigator; (2) Numerous steadfast denials by the defendant; (3) Statements that law enforcement officials would be involved if defendant did not confess; and (4) Promises of treatment for the defendant and his stepdaughter only if he fully confessed. State v. Phillips, 30 S.W.3d 372, 2000 Tenn. Crim. App. LEXIS 284 (Tenn. Crim. App. 2000).

The legal theory that the voluntariness of a statement is only an issue when a statement is given during custodial interrogation is clearly incorrect. State v. Smith, 42 S.W.3d 101, 2000 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 39 (Tenn. Jan. 8, 2001).

No proof was introduced during the suppression hearing that defendant's statement was the result of the kind of coercive police activity that is a necessary predicate to finding that a confession is not voluntary. State v. Smith, 42 S.W.3d 101, 2000 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 39 (Tenn. Jan. 8, 2001).

Defendant's confession was voluntary because officers gave defendant an opportunity to go to the restroom or have something to drink, and defendant's request to give his written statement later was not a clear and unequivocal expression that he wished to remain silent; to the contrary, defendant's comment indicated that he was willing to continue his statement, just at another time. State v. Downey, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 13, 2007), aff'd, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

Defendant's written statement was not rendered involuntary by actions of investigating officer because officer's statement that the written confession could not hurt defendant did not negate the Miranda warning or require suppression, when the record failed to establish that police exercised any compelling influence over defendant or that his statements were induced by promises of leniency; defendant had already confessed to the crimes, and it was only before the written statement that this discussion of cooperation and leniency took place. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

Defendant's written statement was not rendered involuntary by actions of investigating officers because while investigating officers did not comply with requirements of T.C.A. § 40-7-106, the statutory violation did not warrant suppression of the statement when defendant's request to make a phone call came after he had already made his verbal confession to the investigating officers, and their denial of his request until after he provided a statement in writing, given the totality of the circumstances, did not render that written statement the product of police coercion. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

Defendant's written statement was not rendered involuntary by actions of investigating officer because officer's statement that defendant's confession had to be written immediately did not make that statement involuntary, when defendant never refused to give a statement; defendant had already given a verbal account of the events, which was videotaped, and when asked to write out his statement, he simply asked if he could do that later and never told officers that he no longer wished to cooperate or that he no longer wished to make a statement. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

There was no evidence that religious references had any actual coercive effect on defendant's confession because defendant was a high school graduate, was actively involved in his church, mentioned his religious beliefs as contrary to sexually abusing his daughter, and did not exhibit any obvious distress when religion was mentioned; also, defendant appeared cooperative, and detectives never raised their voices, argued with him, or threatened him. State v. Saint, 284 S.W.3d 340, 2008 Tenn. Crim. App. LEXIS 714 (Tenn. Crim. App. Sept. 9, 2008).

In defendant's trial for the murder of his wife, defendant's motion to suppress was properly denied, and his statement to the police was properly introduced into evidence because, under the totality of the circumstances, defendant's statement was voluntary where defendant was advised of his Miranda rights twice during the day, he was allowed to roam freely after being taken to the police station and was allowed to use his cellular phone and to have visitors, there was not an ongoing interrogation between his initial statement and the polygraph examination, defendant was not deprived of food or sleep, and the 12 hours that he spent at the police station were relatively short for a case of that nature. Although the appellate court was concerned that the officers took defendant's clothing and provided him with a jail uniform to wear, defendant had opportunity to request that someone bring clothes to him, and a police officer asked if he could bring defendant clothes when he left to return to defendant's home, the scene of the murder; defendant had phone conversations with various family members from whom he could have also requested clothing, and when friends of defendant left the police station, they were going to get clothes for defendant. State v. Brock, 327 S.W.3d 645, 2009 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. June 29, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 56 (Tenn. Jan. 25, 2010), cert. denied, Brock v. Tennessee, , 562 U.S. 850, 131 S. Ct. 101, 178 L. Ed. 2d 64, 2010 U.S. LEXIS 5883 (U.S. 2010).

Court properly denied defendant's motion to suppress his statements because defendant was not physically abused, there were no threats of abuse, and a detective merely telling defendant that their conversation was not being recorded did not render his statements involuntary. Finally, defendant made the second statement post-waiver, and therefore, the detective did not have to stop the interview and clarify the appellant's request. State v. Climer, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Dec. 14, 2011), modified, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Trial court did not err in admitting evidence of the conversations he had with his wife on January 18, 2007, because the confessions recorded by the police were not involuntary or coerced where although the wife made misrepresentations about their future together and implied that she would not seek prosecution, she had no authority to forego prosecution or allow leniency. State v. Clark, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Sept. 6, 2012), aff'd, 452 S.W.3d 268, 2014 Tenn. LEXIS 913 (Tenn. Nov. 10, 2014).

Defendant was not coerced by the victim's parent into making a statement or confession, as (1) defendant was not in custody, (2) the parent maintained a stern, yet non-argumentative tone; (3) the conversation occurred outdoors, and (4) the conversation occurred within a few feet of defendant vehicle, allowing defendant to leave at any time. State v. Sanders, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Oct. 9, 2012), aff'd, 452 S.W.3d 300, 2014 Tenn. LEXIS 912 (Tenn. Nov. 10, 2014).

Trial court did not err in admitting defendant's confession to his mother into evidence at trial because defendant initiated the contact with his mother by asking to see her after an officer had properly ceased the interrogation in response to defendant's invocation of his right to counsel; and because defendant's mother was not acting as a state agent as there was no evidence at all suggesting that the police brought defendant's mother to see him for the purpose of eliciting incriminating statements, or that the officers asked, directed, induced, or threatened her to obtain information from defendant; and the officers did not instruct defendant's mother on what to say to or ask of defendant. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Decision granting defendant's motion to suppress a statement that he made to police was improper, as a detective did not imply that defendant would be released or that he would receive treatment in lieu of a jail sentence if he confessed to rape; even after the detective supposedly promised leniency and treatment if defendant confessed, defendant continued to deny that he raped his cousin. State v. Woods, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 995 (Tenn. Crim. App. Oct. 31, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 214 (Tenn. Mar. 12, 2015).

Trial court did not err in denying defendant's motion to suppress his statement to a detective, as defendant contacted the detective and expressed his desire to confess, the detective provided defendant with his Miranda warnings and defendant freely and voluntarily waived his constitutional rights State v. Alajemba, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1020 (Tenn. Crim. App. Nov. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 221 (Tenn. Mar. 11, 2015).

Trial court did not err in failing to suppress defendant's statement to the police, as a detective testified that he advised defendant of his Miranda rights by reading them out loud and going through them line-by-line prior to questioning him about robberies, and none of the officers who interacted with defendant believed defendant to be under the influence of any substance. State v. Rogers, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 134 (Tenn. Crim. App. Feb. 25, 2015).

Trial court did not err by denying defendant's motion to suppress a statement he provided to the police following his arrest, as his claim that his will was overborne by the show of force by police failed; the police conduct was proper, as at the time of his arrest defendant had armed himself and holed up in an abandoned house and was wanted on federal firearms and carjacking offenses. State v. Davidson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 10, 2015), aff'd, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016).

Trial court did not err in denying appellant's motion to suppress his statements to appellant's ex-wife on October 15 and 16, 2002 where the statements were voluntary as the ex-wife did not threaten appellant or make him any promises; the ex-wife told appellant that she wanted to help, but her offer was not conditioned upon appellant's confessing. State v. Willis, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 13, 2015), aff'd, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016).

Defendant's motion to suppress his statements to the police was properly denied because the issue of a coerced confession was never properly before the trial court as defendant based his motion not on the issue of coercion but on a failure to properly advise him of his Miranda rights; and, even if defendant had properly preserved the issue of coercion, the record did not support defendant's claim as he agreed to accompany police to the police station for further questioning; the total time of his interrogation was approximately one hour; during the pre-interrogation period, defendant was not handcuffed, and he was free to leave at any time; and the detective's statements could not be considered coercive or enforceable promises of leniency. State v. Lugiai, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 655 (Tenn. Crim. App. Aug. 13, 2015), appeal dismissed, — S.W.3d —, 2016 Tenn. LEXIS 490 (Tenn. June 23, 2016).

Defendant voluntarily gave his statement to police because a detective advised defendant of his rights, defendant expressed his willingness to speak with police, and nothing in his statement or demeanor indicated otherwise; the investigators made no threats nor did they act in an intimidating manner during the interview. State v. Ostine, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 911 (Tenn. Crim. App. Nov. 12, 2015), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 264 (Tenn. Mar. 28, 2016).

Trial court did not err in denying defendant's motion to suppress, as defendant made coherent statements, told detectives that he was not under the influence but had been smoking marijuana earlier in the day, and appeared to be alert and cognizant when inquiring about his legal situation and the consequences of his crimes. State v. Buford, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1049 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 355 (Tenn. May 6, 2016).

Defendant's rights against compelled self-incrimination were not violated, and therefore the trial court did not err by admitting into evidence statements he made to ex-wife on October 15 and 16, 2002, where the circumstances did not amount to a police-dominated atmosphere, compulsion, or pressure for him to make a statement, as he instructed his ex-wife to bring a tape-recorder, a note pad, and a pen to the meeting and he controlled the tape recording during the meeting, during which he confessed to killing the victims. State v. Willis, 496 S.W.3d 653, 2016 Tenn. LEXIS 405 (Tenn. July 6, 2016), cert. denied, Willis v. Tennessee, 197 L. Ed. 2d 466, 137 S. Ct. 1224, — U.S. —, 2017 U.S. LEXIS 1710 (U.S. Mar. 6, 2017).

Defendant's statement to the police was not unknowing, unintelligent, or involuntary where he was intelligent enough to understand his rights and waive them despite his low IQ, he never indicated that he did not understand, he had a lengthy criminal history, he told the officer he was not intoxicated or ill, although he complained of pain from a gunshot wound after the sergeant gave him over-the-counter pain medication he did not complain further, he was not physically abused, and the sergeant denied threatening him. State v. Sanders, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 60 (Tenn. Crim. App. Jan. 27, 2016).

After he was advised of his Miranda rights, defendant stated that he understood his rights, and he gave a detailed narrative of the events surrounding the murder, and he appropriately expressed remorse; these facts directly contradicted defendant's claim that he was too sick or too intoxicated to make a voluntary statement to police. State v. Smithson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 502 (Tenn. June 23, 2016).

Defendant was not in custody where she accompanied the detective to the police station voluntarily, the interview was during regular working hours and was not lengthy, the detective's demeanor was courteous, defendant retained possession of her bag and phone, she was told she would be returned to her vehicle, she was left unattended more than once, she never indicated she wanted to leave, and she was made aware of her fight to remain silent at her place of work and the police station. State v. Lowe, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 497 (Tenn. Crim. App. July 12, 2016), aff'd, 552 S.W.3d 842, 2017 Tenn. LEXIS 904 (Tenn. Sept. 6, 2017).

Investigator's statement to defendant that she would testify as an expert against him and tell the court he was not telling the truth based on his polygraph was misleading and that, in conjunction with the fact that both law enforcement officers confronted defendant at the same time with questions after his repeated denials, would have been overbearing psychologically on defendant and supported the suppression of his statement. State v. Kinnie, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 570 (Tenn. Crim. App. Aug. 5, 2016).

Record supported the determination that the sergeant had probable cause to arrest defendant without a warrant and that delays in the interview process were insufficient to overcome the defendant's will; there was no evidence that the defendant's statement was the fruit of an illegal arrest or was not voluntarily and knowingly made, defendant's claim of a violation of his constitutional rights was rejected, and the trial court properly denied defendant's motion to suppress his statement to police. State v. Thomas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 605 (Tenn. Crim. App. Aug. 16, 2016).

Trial court did not err by denying defendant's motion to suppress defendant's signed, written statement that was provided to a police detective because the statement was not involuntarily given or the result of police coercion as defendant, an emergency medical technician, voluntarily traveled to the sheriff's department in defendant's own vehicle in response to the detective's request to talk with defendant about images on defendant's computer and defendant never asked to leave or asked for an attorney when defendant met with the detective. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 949 (Tenn. Crim. App. Dec. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 261 (Tenn. Apr. 12, 2017).

Denial of juvenile defendant's motion to suppress a statement given to the sheriff's office was appropriate because a detective obtained permission from the juvenile court to interview defendant. On the recording of the interview, defendant appeared calm and alert; the detective ensured that defendant understood defendant's Miranda rights; although the detective suspected that defendant had mental health issues, defendant was able to answer the detective's questions; and defendant at times invoked the right to remain silent. State v. Davis, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1020 (Tenn. Crim. App. Dec. 11, 2017).

Trial court did not err by denying defendant's motion to suppress his January statement because defendant voluntarily allowed the detective to come into his residence and take photographs, and the detective's questions were not coercive. State v. Demps, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 27, 2018).

Statement that defendant made over the telephone to defendant's parent, when defendant was in custody and had not been advised of defendant's rights, was admissible because a police detective testified that when the parent asked defendant what was going on defendant made incriminating statements. There was no evidence that law enforcement coerced the statements or that the parent's unprompted and general question to defendant constituted the functional equivalent of police interrogation. State v. Butts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 29, 2018).

Trial court did not err in denying defendant's motion to suppress his confession because any mental defects did not render the statement involuntary; there was absolutely no evidence offered showing that the police threatened defendant or engaged in coercive acts during the interview in order to obtain his statement, and an officer testified that defendant appeared to understand his Miranda rights and did not appear to have any learning disabilities. State v. Collins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 489 (Tenn. Aug. 8, 2018), cert. denied, Collins v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 7182 (U.S. Dec. 10, 2018).

Defendant failed to show his written statements were involuntary, as the investigator testified he believed defendant intentionally acted sick or intoxicated to avoid talking to him and defendant presented no evidence to support a finding he was intoxicated because he had been in a car with a person smoking marijuana. State v. Stitts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. Apr. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 474 (Tenn. Aug. 8, 2018).

Suppression of defendant's confession was properly denied because the circumstances of defendant's interrogation did not show defendant's Miranda waiver was involuntary, and nothing supported defendant's claim of intoxication during the interrogation. State v. Wilson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. May 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 567 (Tenn. Sept. 13, 2018).

Defendant's statement was not an unequivocal and unambiguous invocation of his right to remain silent, and therefore the trial court did not err by denying his motion to suppress, because the state was equivocal and conditional, as his statement was not an unequivocal expression of a desire to cut off further questioning by investigators at that time but was an indication of what defendant would do if the investigators called him a liar. State v. Cool, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 691 (Tenn. Crim. App. Sept. 12, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 58 (Tenn. Jan. 18, 2019).

There was sufficient evidence in the record to support the trial court's finding that defendant was not subject to interrogation by the sergeant and gave a voluntary spontaneous statement, therefore making Miranda warnings unnecessary, because the sergeant's testimony showed that he did not question defendant, defendant volunteered the statement that he threw the bullets away after he shot the victim, and the sergeant advised defendant to stop talking as soon as he said something incriminating. State v. Ellis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Sept. 21, 2018).

Defendant's statement was voluntary because he was informed of his Miranda rights, he indicated that he was voluntarily waiving them, the recording of the interview showed that he was not intoxicated or impaired, he was not abused or threatened, and when the officer offered to give defendant time to get his emotions under control after learning of the victim's death, defendant told him he would rather get the interview out of the way. Tenn. v. Satterfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 8, 2019).

Defendant's motion to suppress was properly denied as his statement was not involuntary because he was not physically abused; the lieutenant denied telling defendant that he could go home if he gave a statement; defendant was 19 years old when he gave his statement; although defendant had a learning disability, he was of average intelligence; he did not appear to be under the influence of an intoxicant, and appeared to understand what was happening; and he was advised of his rights, and signed a waiver of rights form. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 24, 2019).

Trial court properly determined that defendant was not in custody during any of the three interviews, and therefore Miranda warnings were not required, because he voluntarily agreed to questioning, the officers drove defendant only because he had no other mode of transportation, he left the sheriff's department after the first interview, and the video recordings clearly indicated that he was told he was not in custody and was free to leave at any time. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

Trial court properly determined that defendant's confession was voluntarily given and therefore it properly denied her motion to suppress because defendant acknowledged that she had smoked a single blunt of marijuana three and a half hours before giving her statement, she told the detectives that she was not feeling the effects and agreed to talk to them, and the detectives testified that she did not appear to be under the influence of an intoxicant. State v. Williams, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 206 (Tenn. Crim. App. Mar. 29, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 332 (Tenn. July 19, 2019).

Trial court did not err by denying defendant's motion to suppress his confession because it was voluntary, even though the officers were less than entirely truthful with defendant and encouraged him to confess in order not to appear to be a sexual predator and one of the investigators briefly raised his voice, defendant was experienced in the criminal justice system and was concerned about not being perceived as a sexual predator, which compelled him to explain that his attack on the victim had been an attempt to rob her, not an attempt to sexually assault her. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. June 28, 2019).

Trial court did not err in denying defendant's motion to suppress because the evidence did not preponderate against the trial court's finding that defendant gave his statement intelligently, freely, and voluntarily without duress or coercion. State v. Jordan, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. May 8, 2020).

Trial court did not err by denying defendant's motion to suppress because the record supported its conclusion that defendant's statement was voluntarily given and not the product of police coercion or promises of leniency, as he arrived at the police station of his own volition and was permitted to leave, the interview only lasted an hour and half, and neither the detective nor the Department of Children's Services employee threatened defendant or promised him leniency in exchange for his confession. State v. Wyse, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Oct. 20, 2020).

108. — —Right to Counsel During Questioning.

While Tenn. Const. art. I, § 9 may apply more broadly than U.S. Const. amend. 5, in some circumstances, a suspect's invocation of his or her right to counsel is the same under both art. I, § 9 and the Fifth Amendment; the state's highest court concludes that the pre-waiver/post-waiver distinction drawn in State v. Turner , 305 S.W.3d 508, 2010 Tenn. LEXIS 148 (Tenn. 2010), has been abrogated by Berghuis v. Thompkins , 130 S. Ct. 2250, 176 L. Ed. 2d 1098, 560 U.S. 370, 2010 U.S. Lexis 4379 (2010), and that when determining whether a suspect has invoked the right to counsel guaranteed by the Fifth Amendment and art. I, § 9, Tennessee courts must apply the Davis standard, regardless of the timing of the suspect's alleged invocation of the right. State v. Climer, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Detective was not obligated to immediately cease questioning defendant as defendant's right to counsel under U.S. Const. amend. 5, and Tenn. Const. art. I, § 9 was not unequivocally invoked where during his interrogation, after being advised of his Miranda rights, defendant stated: (1) You mean I can have an appointed lawyer right now?; (2) I'm scared to (talk to a detective) without an attorney here; and (3) I can't afford a lawyer. State v. Climer, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Defendant did not unequivocally request an attorney during questioning because defendant's statement “I think I might need to talk to my mama and a lawyer,” was not an unequivocal request for counsel; an officer also took appropriate steps to ensure defendant understood his rights. State v. Stewart, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. July 22, 2013), overruled, Harrison v. Parris, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 154841 (M.D. Tenn. Nov. 8, 2016).

Defendant did not make a clear and unequivocal request to have an attorney present prior to when the interrogation ceased; although he originally expressed his intent to obtain counsel in the future, and the detectives erroneously affirmed his misunderstanding that he would not be appointed an attorney until he went to court, they reiterated that he could invoke his rights at any time, defendant again expressed his wish to tell his story, and the interview ceased when he said he was done talking after the detectives described the victim's injuries. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 368 (Tenn. Crim. App. May 11, 2017).

Trial court did not err by refusing to suppress the statement defendant made to the police because he did not make an unequivocal request for counsel, as immediately following his mentioning counsel defendant indicated that he wished to speak to detectives. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 609 (Tenn. Crim. App. July 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 775 (Tenn. Nov. 16, 2017).

Because there was never an unequivocal invocation by defendant of the right to counsel during an interview at a police station, the police detective was under no obligation to end the interview immediately, and, in fact the detective sought to clarify exactly what defendant meant by an unclear statement about an attorney, which the detective was not required to do. In response, defendant repeatedly relayed defendant's desire to speak with the detective, so that defendant's statement was not elicited in violation of defendant's right to counsel. State v. Batiz, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Nov. 1, 2019).

109. — —After Right to Silence Invoked.

Where defendant has invoked his constitutional right to remain silent when he told the detective at the arrest scene that he did not have anything to say, but approximately 30 minutes later different detectives, who may not have known he had invoked his right to remain silent, took him on a 30-45 minute drive and questioned him while retracing the route of his escape, after which the defendant confessed to the crime, the resumption of questioning after only 30 minutes was not a “scrupulous honoring” of defendant's right to remain silent, and later confession was inadmissible as fruit of the poisonous tree. State v. Crump, 834 S.W.2d 265, 1992 Tenn. LEXIS 358 (Tenn. 1992), cert. denied, Tennessee v. Crump, 506 U.S. 905, 113 S. Ct. 298, 121 L. Ed. 2d 221, 1992 U.S. LEXIS 6318 (1992).

Trial court did not err in admitting defendant's confession into evidence because defendant's request to speak to officers other than those conducting the interview did not amount to an invocation, ambiguous or unambiguous, of his right to remain silent. State v. Dotson, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014), cert. denied, Dotson v. Tennessee, 191 L. Ed. 2d 565, 135 S. Ct. 1535, — U.S. —, 2015 U.S. LEXIS 1830 (U.S. 2015).

Interrogation at the crime scene occurred approximately 40 minutes after defendant invoked his rights, and his statement was a direct result of the detective's failure to scrupulously honor defendant's prior invocation of his right to remain silent, and thus his confession was not voluntary and his statement to the detectives should have been suppressed; however, given the overwhelming evidence that supported his first-degree murder conviction, the error was harmless. State v. Pike, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 264 (Tenn. Apr. 12, 2017).

Defendant unambiguously invoked his right to remain silent when he stated “I ain't got nothing else to say,” and the first detective immediately ceased questioning defendant as he was required to do under Miranda. However, a second detective's questioning, nine minutes later, without the administration of Miranda warnings or defendant initiating the conversation was a violation of defendant's right to remain silent. State v. Lalone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. May 25, 2017).

Denial of defendant's motion to suppress was appropriate because defendant, while in custody, initially waived defendant's Miranda rights but then chose not to answer further questions and requested an attorney when defendant was told that defendant was a suspect in a murder investigation. However, seconds later, defendant re-initiated communication with law enforcement officers after invoking defendant's right to an attorney and gave a statement. State v. Odum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 973 (Tenn. Crim. App. Nov. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 112 (Tenn. Feb. 15, 2018).

Defendant's statement to an officer was admissible because defendant did not clearly articulate a desire to stop questioning, as (1) the officer credibly testified the officer did not hear defendant say “I'm done talking,” and (2) defendant kept talking to the officer after making the statement. State v. Reynolds, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 360 (Tenn. Crim. App. June 25, 2019).

110. — —Following Prior Unwarned Confession.

The provisions of Tenn. Const. art. I, § 9 necessitate that the court recognize that extraction of an illegal, unwarned confession from a defendant raises a rebuttable presumption that a subsequent confession, even if preceded by proper Miranda warnings is tainted by the initial illegality. That presumption may be overcome by the prosecution, however, if the state can establish “that the taint is so attenuated as to justify admission of the subsequent confession.” State v. Smith, 834 S.W.2d 915, 1992 Tenn. LEXIS 360 (Tenn. 1992).

The defendant's confession, obtained after proper administration of Miranda warnings, was admissible at trial even though a prior incriminating statement was obtained in violation of U.S. Const. amend. 5 and Tenn. Const. art. I, § 9. State v. Smith, 834 S.W.2d 915, 1992 Tenn. LEXIS 360 (Tenn. 1992).

Police officers are permitted to ask follow-up questions to a defendant's voluntary statement without first having to give Miranda warnings, unless the officer has reason to believe that the follow-up questions are reasonably likely to elicit an incriminating response. State v. Walton, 41 S.W.3d 75, 2001 Tenn. LEXIS 222 (Tenn. 2001), cert. denied, Walton v. Tennessee, 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258, 2001 U.S. LEXIS 9457 (2001).

Where defendant in custody for drug possession made an unwarned confession while listening to police discussion a murder investigation, Tenn. Const. art. I, § 9 did not require suppression of his subsequent videotaped confession made after he received Miranda warnings and signed a rights-waiver form; there was no evidence showing that either the prewarning admission or postwarning confession was involuntary. State v. Northern, 262 S.W.3d 741, 2008 Tenn. LEXIS 558 (Tenn. Aug. 26, 2008), cert. denied, Northern v. Tennessee, 555 U.S. 1214, 129 S. Ct. 1525, 173 L. Ed. 2d 659, 77 U.S.L.W. 3487, 2009 U.S. LEXIS 1714 (U.S. 2009).

111. — —Miranda.

Where investigation has ceased to be a general investigation of an unsolved crime but has begun to focus on a particular suspect who has been taken into police custody and interrogated for the purpose of eliciting incriminating statements without accused having been effectively warned of his constitutional right to remain silent and accused has been denied right to counsel during that period, statements elicited by police during such period cannot be used against him in a criminal proceeding. Campbell v. State, 215 Tenn. 95, 384 S.W.2d 4, 1964 Tenn. LEXIS 541 (Tenn. Nov. 12, 1964).

Where confessions are offered as evidence their competency becomes a preliminary question to be determined by the court as a preliminary question and it is error for the court to allow the jury to determine such preliminary fact. Campbell v. State, 215 Tenn. 95, 384 S.W.2d 4, 1964 Tenn. LEXIS 541 (Tenn. Nov. 12, 1964).

After the admission of a confession upon the preliminary determination of the trial judge, the weight of the confession is for the jury so that it is up to the jury to determine whether that defendant made the confession and whether the statements in it are true, and to aid in resolving these questions the jury may hear evidence of the circumstances under which the confession was procured. Campbell v. State, 215 Tenn. 95, 384 S.W.2d 4, 1964 Tenn. LEXIS 541 (Tenn. Nov. 12, 1964).

Where defendant stated that he did not care to make a statement when his companion stated to law enforcement official that stolen money orders had been obtained from defendant, such statement was an assertion of defendant's legal right to remain silent and testimony as to defendant's failure to deny his companion's statement was inadmissible. O'Brien v. State, 221 Tenn. 346, 426 S.W.2d 507, 1968 Tenn. LEXIS 522 (1968).

Where an adult defendant was properly given his Miranda warnings, signed a written waiver of his rights in the presence of an attorney and a consent to interrogation, and his wife was present on the premises, but three requests he made to call his father were refused, his confession was voluntarily given and admissible against him in his subsequent trial on charges of first degree murder. Bramlett v. State, 515 S.W.2d 895, 1974 Tenn. Crim. App. LEXIS 234 (Tenn. Crim. App. 1974).

After a full Miranda warning, admittedly understood, a defendant who spontaneously responds to questions waives his right against self-incrimination, although he refuses to sign a written waiver. Bush v. State, 530 S.W.2d 95, 1975 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. 1975).

Only an indigent defendant must be advised prior to questioning of his right to appointed counsel. Nix v. State, 530 S.W.2d 524, 1975 Tenn. Crim. App. LEXIS 279 (Tenn. Crim. App. 1975), cert. denied, Nix v. Tennessee, 423 U.S. 913, 96 S. Ct. 218, 46 L. Ed. 2d 142, 1975 U.S. LEXIS 3052 (1975).

Although defendants were arrested illegally and subjected to lengthy and illegal incarceration, the casual and spontaneous circumstances under which the defendants made self-incriminating responses to the police officers purge the taint of the illegal arrests and detention. State v. Chandler, 547 S.W.2d 918, 1977 Tenn. LEXIS 571 (Tenn. 1977).

A refusal to sign a written waiver does not render a subsequent statement inadmissible when the evidence demonstrates that the statement was voluntarily made following adequate warnings. Hackney v. State, 551 S.W.2d 335, 1977 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 1977).

Defendant's confession is not rendered inadmissible by the mere fact that he was under the influence of drugs at that time, provided the accused was capable of making a narrative of past events or of stating his own participation in the crime. Williams v. State, 491 S.W.2d 862, 1972 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. 1972); Peabody v. State, 556 S.W.2d 547, 1977 Tenn. Crim. App. LEXIS 291 (Tenn. Crim. App. 1977).

Where the record consists of conflicting testimony as to when defendant made incriminating statements, when he requested counsel, and when he attempted to contact his attorney, the evidence must clearly reflect that the statements were given prior to the request for counsel and that the continuation of the questioning was not contrary to Miranda , otherwise the statements must be suppressed. Lee v. State, 560 S.W.2d 82, 1977 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. 1977).

Where defendant at his arrest gave the police an exculpatory statement and at trial testified to an exculpatory version of events, his constitutional right to remain silent was not violated by the prosecution's use of his post-arrest silence to challenge that exculpatory defense. Ware v. State, 565 S.W.2d 906, 1978 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. 1978).

Where the police failed to “scrupulously honor” defendant's right to cut off questioning by interrogating him later on, to determine what effect this failure has upon the admissibility of the defendant's subsequent taped confession, as a matter of federal constitutional law, the relevant inquiry is whether the police failure to scrupulously honor the defendant's invocation of his right to remain silent merely violated Miranda's procedural rules or violated the defendant's constitutional rights. This distinction is crucial under federal law because failure to comply with Miranda's procedural guidelines does not result in the same consequences as police infringement of a constitutional right. Under federal law, if police conduct only results in a violation of Miranda's procedural guidelines, the admissibility of a subsequent confession depends solely on whether it was made knowingly and voluntarily. However, if the police conduct results in a federal constitutional violation, the inquiry becomes whether the subsequent confession was involuntary, and whether it was obtained as a result of that violation and therefore must be excluded as tainted “fruit of the poisonous tree.” State v. Crump, 834 S.W.2d 265, 1992 Tenn. LEXIS 358 (Tenn. 1992), cert. denied, Tennessee v. Crump, 506 U.S. 905, 113 S. Ct. 298, 121 L. Ed. 2d 221, 1992 U.S. LEXIS 6318 (1992).

Defendant knowingly and voluntarily waived his Miranda rights and confessed to killing, despite his contentions that the circumstances surrounding his arrest, particularly dog bites he received prior to arrest, his low educational level and mental illness prevented him from understanding his constitutional rights. State v. Middlebrooks, 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (Tenn. 1992), cert. dismissed, Tennessee v. Middlebrooks, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555, 1993 U.S. LEXIS 7942 (1993), cert. denied, Tennessee v. Middlebrooks, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702, 1994 U.S. LEXIS 402 (1994), superseded by statute as stated in, State v. Banks, 271 S.W.3d 90, 2008 Tenn. LEXIS 963 (Tenn. 2008).

In a prosecution for aggravated sexual battery, defendant's incriminating statements to a counselor were admissible because he was not in custody at the time the statements were made. State v. Smith, 933 S.W.2d 450, 1996 Tenn. LEXIS 836 (Tenn. 1996).

Neither Tenn. Const. art I, § 9 nor the U.S. Const. amend. 5 requires police officers to inform juveniles of the possibility that they may be prosecuted as adults as part of the Miranda warnings. State v. Callahan, 979 S.W.2d 577, 1998 Tenn. LEXIS 576 (Tenn. 1998).

Juveniles' waivers of Miranda rights should be analyzed under a totality of the circumstances test that includes consideration of the following factors: (1) Consideration of all circumstances surrounding the interrogation, including the juvenile's age, experience, education, and intelligence; (2) The juvenile's capacity to understand the Miranda warnings and the consequences of the waiver; (3) The juvenile's familiarity with Miranda warnings or the ability to read and write in the language used to give the warnings; (4) Any intoxication; (5) Any mental disease, disorder, or retardation; and (6) The presence of a parent, guardian or interested adult. These factors do not include whether the juvenile was warned that he might be tried as an adult. State v. Callahan, 979 S.W.2d 577, 1998 Tenn. LEXIS 576 (Tenn. 1998).

Defendant was aware of the subject of the questioning when she signed the Miranda waiver even if she was not aware of the exact charges that might be brought against her. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

“Interrogation” for purposes of Miranda warnings refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit incriminating information. State v. Walton, 41 S.W.3d 75, 2001 Tenn. LEXIS 222 (Tenn. 2001), cert. denied, Walton v. Tennessee, 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258, 2001 U.S. LEXIS 9457 (2001).

A defendant may seek suppression of non-testimonial evidence discovered through unwarned statements only when the statements are the product of an actual violation of the privilege against self-incrimination, such as when actual coercion in obtaining the statement is involved or when the invocation of the right to remain silent or to have counsel present is not scrupulously honored. State v. Walton, 41 S.W.3d 75, 2001 Tenn. LEXIS 222 (Tenn. 2001), cert. denied, Walton v. Tennessee, 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258, 2001 U.S. LEXIS 9457 (2001).

Where the fruit of the poisonous tree was physical property recovered, the property did not need to be suppressed because no actual coercion by police officers was involved. State v. Walton, 41 S.W.3d 75, 2001 Tenn. LEXIS 222 (Tenn. 2001), cert. denied, Walton v. Tennessee, 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258, 2001 U.S. LEXIS 9457 (2001).

Deaf murder defendant's custodial confession was suppressed because the interpretation of Miranda rights to the defendant using sign language, omitted key elements of those rights. State v. Jenkins, 81 S.W.3d 252, 2002 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. 2002).

Admission into evidence of the oral and written statements, which were obtained from defendant after he failed a polygraph examination and his status became custodial, did not violate his rights against self-incrimination under U.S. Const. amend. 5 and Tenn. Const. art. I, § 9 because defendant was advised of his Miranda rights and made a knowing and voluntary waiver of those rights earlier in the day, and the five hours between defendant's waiver of his Miranda rights and his subsequent custodial interrogation did not constitute a significant time lapse. State v. Rogers, 188 S.W.3d 593, 2006 Tenn. LEXIS 123 (Tenn. 2006), cert. denied, Rogers v. Tennessee, 549 U.S. 862, 127 S. Ct. 147, 166 L. Ed. 2d 107, 2006 U.S. LEXIS 6820 (U.S. 2006).

High school student was not in custody for purposes of Miranda because, although the deputy informed defendant that she and the principle were going to search defendant's truck and that he should accompany them to the parking lot, neither the language of the request nor its substance demonstrated a degree of compulsion that approximated the deprivation of freedom of movement associated with formal arrest. State v. R.D.S., — S.W.3d —, 2006 Tenn. App. LEXIS 733 (Tenn. Ct. App. Nov. 17, 2006), modified, 245 S.W.3d 356, 2008 Tenn. LEXIS 28 (Tenn. Feb. 6, 2008).

Defendant's convictions for first-degree murder and for the facilitation of first-degree murder were appropriate because her assertions that the deprivation of her medications and sudden withdrawal of those medications caused a seizure, which she argued rendered her incapable of making a knowing waiver of her Miranda rights, simply did not preponderate against the findings of the trial court. State v. Dych, 227 S.W.3d 21, 2006 Tenn. Crim. App. LEXIS 823 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 191 (Tenn. Feb. 26, 2007).

Defendant's pre- Miranda statement that he was present when the victim was shot was inadmissible, because a detective was discussing the facts of the murder case with other detectives, defendant was sitting in the murder squad office, and while in the office, defendant acknowledged his involvement in the crime. State v. Northern, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. June 11, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 614 (Tenn. Crim. App. July 17, 2007), aff'd, 262 S.W.3d 741, 2008 Tenn. LEXIS 558 (Tenn. Aug. 26, 2008).

Defendant's confession was admissible because, although officers used a two-step interrogation technique, the record revealed no “coercive” tactics, defendant received appropriate Miranda warnings before confessing his involvement in the shooting, defendant acknowledged that he understood his rights, and he signed a written waiver of them; the trial court found that defendant was fully aware of the rights he was waiving, that he appeared to provide coherent responses to the detective's questioning, and that he had previous arrests and was familiar with the process. State v. Northern, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 459 (Tenn. Crim. App. June 11, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 614 (Tenn. Crim. App. July 17, 2007), aff'd, 262 S.W.3d 741, 2008 Tenn. LEXIS 558 (Tenn. Aug. 26, 2008).

Defendant's statement was not the product of an unconstitutional custodial interrogation, and therefore no Miranda warnings were necessary, because a detective did not expressly question defendant about the crime, but merely responded to defendant's inquiry concerning the reason why he was arrested. State v. Davis, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 580 (Tenn. Crim. App. July 19, 2007), aff'd, 266 S.W.3d 896, 2008 Tenn. LEXIS 776 (Tenn. Oct. 17, 2008).

Evidence did not preponderate against the trial court's conclusion that defendant was not in custody at the time of his interview, and therefore Miranda warnings were not required under Tenn. Const. art. I, § 9 and his motion to suppress was properly denied; the evidence showed that: (1) Defendant went to the police station voluntarily and agreed to speak with the detective; (2) Defendant was not handcuffed; (3) When the detective left the interview room, the door remained open and defendant was left unsupervised; (4) The detective was courteous and polite to defendant; and (5) Defendant never asked to leave or to consult an attorney. State v. Dailey, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 969 (Tenn. Crim. App. Nov. 20, 2007), rev'd, 273 S.W.3d 94, 2009 Tenn. LEXIS 1 (Tenn. 2009).

Defendant's self-incrimination rights under Miranda were not violated by his questioning by a deputy at school because the deputy merely requested that defendant accompany her to the vehicle, the questioning took place in the parking lot and while walking between the school and the parking lot, and defendant was not confined to the principal's office for questioning. R.D.S. v. State, 245 S.W.3d 356, 2008 Tenn. LEXIS 28 (Tenn. Feb. 6, 2008).

It was no error to deny defendant's motion to suppress a confession because (1) defendant waived a complaint that defendant was questioned before a Miranda advisement, and (2) a detective credibly testified defendant appeared to understand defendant's Miranda rights, which were read to defendant and which defendant read, and that no promises were made to elicit the confession. State v. Draine, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 29, 2015).

Miranda warnings were not required because defendant was neither in custody nor would a reasonable person in her position have considered herself deprived of freedom of movement to a degree associated with a formal arrest when she was interviewed by detectives in a waiting room at the hospital where she worked as a physician and informed that she was free to leave at any time. State v. Wen Yee Mark, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. Aug. 10, 2015), appeal denied, State v. Wen-Yee Mark, — S.W.3d —, 2015 Tenn. LEXIS 1031 (Tenn. Dec. 10, 2015), cert. denied, Mark v. Tennessee, 136 S. Ct. 2463, 195 L. Ed. 2d 800, 2016 U.S. LEXIS 3867 (U.S. 2016).

Trial court did not abuse its discretion by denying defendant's motion to suppress his inculpatory statements where the record showed that defendant, who possessed a GED diploma and had served in the United States military, was provided with Miranda warnings and signed a waiver of his rights, he suffered from no injury, illness, or intoxication during his interview, and he was not abused or deprived of food or sleep during the interview, and the detective explicitly told defendant he had not made him any promises. State v. Edmonston, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. Sept. 17, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 52 (Tenn. Jan. 19, 2016).

Defendant was read his Miranda rights, voluntarily waived them, and was not coerced given that he had above average intelligence, the interview was not unreasonably lengthy, he was not impaired, and officers statements regarding cooperation were made after defendant waived his rights. State v. Davidson, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016), cert. denied, Davidson v. Tennessee, 199 L. Ed. 2d 66, 138 S. Ct. 105, 2017 U.S. LEXIS 5551 (U.S. Oct. 2, 2017).

Trial court did not err by refusing to suppress the video recorded statement defendant gave to an agent and a detective after her arrest because, although a physician testified that defendant suffered from neurocognitive deficits, he agreed that she voluntarily waived her rights and provided the statement, defendant was twice provided with Miranda warnings and agreed to waive them, and nothing in the recording indicated that she was incapable of voluntarily waiving her rights and providing a statement. State v. Baker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 668 (Tenn. Crim. App. July 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 806 (Tenn. Nov. 16, 2017).

Defendant's motion to suppress his statement was improperly granted as Miranda warnings were unnecessary because defendant was not in custody when questioned by law enforcement; the Tennessee Bureau of Investigation (TBI) agents advised defendant he was not under arrest; they did not restrain him or otherwise prevent him from leaving the hospital room during questioning; and defendant willingly responded to the questions posed by the TBI agents despite being told he did not have to participate in the interview; however, the matter was remanded to the trial court for a full hearing and additional findings of fact as the trial court did not make any findings of facts or conclusions of law regarding the voluntariness of defendant's statement. State v. Lullen, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Aug. 28, 2017).

Trial court did not err by denying defendant's motion to suppress his statement made to a detective because he was not in custody at the time of the interrogation and therefore Miranda rights were not required, as defendant was already at the hospital when he was asked to speak with the officers, the interview lasted an hour and a half, defendant entered and exited the room voluntarily, and the detective testified he informed defendant that the purpose of the interview was to determine what had happened to the victim and he did not have to answer questions if he so chose, and defendant evinced a willingness to cooperate by signing a consent form allow his cell phone to be searched and agreeing to a second interview if needed. State v. Iceman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 931 (Tenn. Crim. App. Oct. 24, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 133 (Tenn. Feb. 14, 2018).

Trial court did not err in denying defendant's motion to suppress his statement in his initial interview in Harlan, Kentucky, because both the police captain and the police chief testified that the captain read defendant his Miranda rights prior to beginning or recording the interview; after turning on the recording device, the captain again confirmed with defendant that he understood his rights; and, after receiving an affirmative response from defendant, the interview continued; furthermore, defendant's statement was voluntary and made absent police coercion. State v. Beverly, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1029 (Tenn. Crim. App. Nov. 28, 2017).

Defendant's right against self-incrimination not violated, because there was no custodial interrogation of defendant when the officer questioned him at his abode with no limitation on his movement, and thus, there was no requirements to give Miranda warnings and the trial court did not err in denying defendant's motion to suppress the statements. State v. Phillips, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. Jan. 19, 2018).

Trial court did not err by denying defendant's motion to suppress his statement because he was not in custody, as he agreed to return to his residence to reenact the events that led to the victim's death, he then agreed to return to the police station to make a second statement, he was not in handcuffs, he rode in the front passenger seat of the patrol car, and the questioning of defendant was for investigative purposes and to clarify his initial statement. State v. Demeza, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 348 (Tenn. June 8, 2018).

Trial court did not err by denying defendant's motion to suppress his statement because he was not in custody, as law enforcement did not transport him to or from the police station, the detective informed him that he was not in custody, and defendant remained in the lobby area of the police station until he was interviewed, which was not secured and therefore he could have left at any time. State v. Demeza, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 348 (Tenn. June 8, 2018).

Trial court did not err by denying defendant's motion to suppress his statement because he was not in custody, as he transported himself to the police station after he agreed to speak with law enforcement again to discuss the autopsy results, the special agent testified that defendant started the interview and that no one threatened or coerced defendant to give a statement, and after the special agent arrested defendant and informed him of his rights, he declined to make other statements and request an attorney. State v. Demeza, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 348 (Tenn. June 8, 2018).

Trial court did not err by denying defendant's motion to suppress his December statement because he was not in custody, and therefore Miranda warnings were not required, as he voluntarily agreed to go to the police station, the detective was not in uniform, during the interview defendant and the detective appeared to be relaxed and friendly, and the detective's questions were not overly accusatory or confrontational. State v. Demps, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 27, 2018).

Although a trial court erred in admitting defendant's initial statement to the police, which defendant made without being advised of defendant's rights and after law enforcement twice told defendant that defendant could not leave the police station, the error was harmless because defendant later departed the police station and gave a subsequent confession days later, after defendant was arrested at defendant's home. Defendant was advised of defendant's rights during the formal arrest and acknowledged defendant's guilt in the second statement. State v. Butts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 29, 2018).

Trial court properly denied defendant's motion to suppress, because, although defendant had previously told officers he had talked to an attorney, the officers found out that he had not, and then when they went to talk to defendant, he was read his Miranda rights, waived those rights, never requested an attorney, and gave a statement. State v. Bogle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 466 (Tenn. Crim. App. June 25, 2018).

Investigator was not required to readminister the Miranda warnings previously given to defendant before questioning him at the police station because defendant was administered Miranda warnings at the residence and after giving the investigators a tour of the home he was transported directly to the police station, less than two hours later the same two investigators arrived to question him, and before questioning defendant, the investigator reminded defendant of the earlier warnings and asked him if he remembered them, and defendant indicated that he had. State v. Cooke, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. July 23, 2018).

Trial court did not err by denying defendant's motion to suppress his statement to police because the officers' statements did not undermine the Miranda warning that was given, as the recording of the interview showed that he never refused to be interviewed, requested an attorney, or invoked his right of silence, and the trial court found that the officers' statements were not coercive. Tenn. v. Satterfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 8, 2019).

Trial court did not err in denying defendant's motion in limine to exclude the oral and written statements he provided to detectives because two interviews did not amount to a custodial interrogation, and thus, the detectives were not required to give defendant the Miranda warnings prior to talking to him; the duration of the interviews was short, there was no limitation to defendant's movement, and the detectives did not take him into custody, arrest him, or inform him they had to talk to him. State v. Foster, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Apr. 9, 2019).

112. — —Intoxication.

Confession held properly admitted where although defendant claimed his intoxication invalidated his confession, there was no evidence of intoxication presented other than the defendant's claim. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

113. —Sobriety Tests.

The requirement that a defendant participate in field sobriety tests does not force the defendant to give evidence against himself. State v. Gilbert, 751 S.W.2d 454, 1988 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. 1988).

The constitutional right against self-incrimination does not prohibit the introduction into evidence of a person's refusal to submit to a blood or breath test, even though the person is not informed that the evidence can be used against him. State v. Frasier, 914 S.W.2d 467, 1996 Tenn. LEXIS 61 (Tenn. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. LEXIS 203 (Tenn. Mar. 18, 1996).

114. —Accusations and Charges Made Against and in the Presence of the Accused.

Accusations and charges against the accused, made in his presence, and not denied by him, are admissible in evidence against him. Kendrick v. State, 28 Tenn. 722, 1849 Tenn. LEXIS 113 (1849); Deathridge v. State, 33 Tenn. 75, 1853 Tenn. LEXIS 8 (1853); Donaldson v. State, 2 Shan. 427 (1877); Green v. State, 97 Tenn. 50, 36 S.W. 700, 1896 Tenn. LEXIS 117 (1896); Low v. State, 108 Tenn. 127, 65 S.W. 401, 1901 Tenn. LEXIS 14 (1901); Phelan v. State, 114 Tenn. 483, 88 S.W. 1040, 1904 Tenn. LEXIS 102 (1904); Cooper v. State, 123 Tenn. 37, 138 S.W. 826, 1909 Tenn. LEXIS 2 (1911) (Judge Beard's dissenting opinion begins on page 152 of Tennessee Reports).

Accusations and charges against the accused, made in his presence, and denied by him, are not admissible in evidence against him. Kendrick v. State, 28 Tenn. 722, 1849 Tenn. LEXIS 113 (1849); Deathridge v. State, 33 Tenn. 75, 1853 Tenn. LEXIS 8 (1853); Green v. State, 97 Tenn. 50, 36 S.W. 700, 1896 Tenn. LEXIS 117 (1896); Low v. State, 108 Tenn. 127, 65 S.W. 401, 1901 Tenn. LEXIS 14 (1901); Phelan v. State, 114 Tenn. 483, 88 S.W. 1040, 1904 Tenn. LEXIS 102 (1904).

Evidence of silent acquiescence is of a dangerous character, and must be received with great caution. Queener v. Morrow, 41 Tenn. 123, 1860 Tenn. LEXIS 29 (1860); Green v. State, 97 Tenn. 50, 36 S.W. 700, 1896 Tenn. LEXIS 117 (1896); Phelan v. State, 114 Tenn. 483, 88 S.W. 1040, 1904 Tenn. LEXIS 102 (1904).

115. —Compelling Defendant to Perform Incriminating Acts.

The accused arrested near the place where the crime was committed may be compelled by his captors to walk on the ground where the foot prints made by the guilty person are found for the purpose of comparing their tracks. Horton v. State, at Nashville, MS. But the accused cannot be compelled to do such a thing in the presence of the jury. He cannot even be requested by the officers of the state, in the presence of the jury, to make his tracks in a pan of mud brought into court for the purpose of comparison, although informed by the court that he was not obliged to do it, for the reason that, by the act of declining, he is compelled to make evidence against himself. Stokes v. State, 64 Tenn. 619, 1875 Tenn. LEXIS 143 (1875).

Where, during the investigative stage of a murder case, a suspect, who later was convicted in the case, was induced by officers to come out of his house and proceed to his car, as a result of which a staked out witness identified him and the car as the man and car he had seen near the site of the crime, this was not an illegal “showup” and the identification by this witness was legal and properly admitted at the trial. Bramlett v. State, 515 S.W.2d 895, 1974 Tenn. Crim. App. LEXIS 234 (Tenn. Crim. App. 1974).

Where detectives had a 20-minute conversation about their investigation of shooting within earshot of defendant held in custody for drug possession, the supreme court held that this was the functional equivalent of express questioning and amounted to a custodial interrogation, and detectives' tactics were likely to elicit an incriminating response; detectives violated defendant's rights under Tenn. Const. art. I, § 9 by failing to give him Miranda warnings before he made an unwarned admission that he was present at the scene of the shooting. State v. Northern, 262 S.W.3d 741, 2008 Tenn. LEXIS 558 (Tenn. Aug. 26, 2008), cert. denied, Northern v. Tennessee, 555 U.S. 1214, 129 S. Ct. 1525, 173 L. Ed. 2d 659, 77 U.S.L.W. 3487, 2009 U.S. LEXIS 1714 (U.S. 2009).

116. —Failure of Accused to Testify.

The accused cannot be compelled to testify against himself, and the fact that he does not testify as a witness in his own behalf does not justify any inference of guilt, and any adverse comment upon such failure to testify, made by the state's attorney in his argument before the jury, constitutes reversible error, where the same is excepted to, and the trial judge does not promptly require counsel to desist from such argument, and does not properly instruct the jury. Staples v. State, 89 Tenn. 231, 14 S.W. 603, 1890 Tenn. LEXIS 40 (1890); King v. State, 91 Tenn. 617, 20 S.W. 169, 1892 Tenn. LEXIS 33 (1892) (but exception must be made to the language complained of in order to get advantage of it); Smithson v. State, 127 Tenn. 357, 155 S.W. 133, 1912 Tenn. LEXIS 34 (1913).

The rule that statements made in the presence of the accused, charging him with crime, create a presumption against him, if not denied by him, does not apply to such statements made in the course of judicial proceedings, whether he himself be on trial, or the case be one in which he is not directly concerned; for, if he himself be on trial, the Tenn. Const. art. I, § 9 protects him against compulsion “to give evidence against himself,” and to admit such evidence would practically nullify the constitutional provision; and, if the trial be one in which he is not directly concerned, he has no right to interfere or intrude therein, and is not called upon to speak, and his failure to speak cannot, in subsequent direct proceedings against him, afford any presumption of acquiescence; and the compulsion of the accused to testify, on cross-examination, as to incriminating testimony in committing trials not there denied by him, and charge of court thereon, constitute reversible error. Parrott v. State, 125 Tenn. 1, 139 S.W. 1056, 1911 Tenn. LEXIS 4, 35 L.R.A. (n.s.) 1073 (Tenn. Sep. 1911).

Failure to charge that no presumption should arise as a result of failure of defendant to take stand in her own behalf was not error where court instructed that defendant was presumed innocent until proved guilty beyond a reasonable doubt and defendant did not request a special charge in reference to her failure to testify. Rowan v. State, 212 Tenn. 224, 369 S.W.2d 543, 1963 Tenn. LEXIS 417 (1963).

Where defendant exercises his constitutional right of not taking the witness stand no conclusion of his guilt may be drawn from such conduct. Hanvy v. State, 215 Tenn. 322, 385 S.W.2d 752, 1965 Tenn. LEXIS 620 (Tenn. Jan. 6, 1965).

Prosecutor's remarks to jury that defendant's failure to offer witnesses was an indication of his guilt did not violate rule against arguing guilt based on failure of the accused to take the stand, and defendant's right against self-incrimination was not violated. McCracken v. State, 489 S.W.2d 48, 1972 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1972).

Where a defendant on trial for first degree murder did not testify, comment in the closing argument by the state to the effect that the defendant had a gun on the night of the homicide was uncontradicted did not violate defendant's right against self-incrimination. Wright v. State, 512 S.W.2d 650, 1974 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. 1974).

Where there was no justification for the prosecution's reference to defendant's decision not to testify, and where the potentially prejudicial effect of such reference was increased by the fact that it was couched in terms of the defendant's failure to testify rather than his right not to take the stand and the cautionary instruction given to the jury at that time reemphasized this approach, as did the final charge to the jury, wherein the trial judge again spoke of the defendant's “failure” to testify, there was reversible error. Ledford v. State, 568 S.W.2d 113, 1978 Tenn. Crim. App. LEXIS 308 (Tenn. Crim. App. 1978).

Prosecutor's comment that defendant “won't even admit that he had marijuana in his own back pocket” was a comment upon defendant's decision to remain silent, but the violation was harmless since the trial court found it was not intentional and gave a detailed curative instruction. State v. Transou, 928 S.W.2d 949, 1996 Tenn. Crim. App. LEXIS 194 (Tenn. Crim. App. 1996).

Trial court correctly sustained the state's objections to the unsworn statements defendant attempted to interject into his cross-examination and informed defendant that the proper time for such statements was when he took the stand as a witness; the trial court's directions in that regard were a correct statement of the law since defendant was not permitted to offer unsworn testimony, regardless of his role as counsel in the case. Further, the trial court's statements did not rise to the level of improper comment under U.S. Const. amend. V and Tenn. Const. art. I, § 9 on defendant's decision whether to testify, and the record did not establish that the statements compelled defendant to testify against his wishes; moreover, although defendant lamented that he had no opportunity to relate to the trial court whether or not he had changed his mind about testifying, or whether he felt compelled to testify, he indeed possessed such an opportunity at the hearing on his motion for new trial pursuant to Tenn. R. Crim. P. 33(c)(1). State v. Lewis, — S.W.3d —, 2009 Tenn. Crim. App. LEXIS 952 (Tenn. Crim. App. Nov. 20, 2009).

Prosecutor's challenged statements, including “The law tells you you can't consider the fact that he decided not to testify, but that's his right,” clearly constituted a comment on defendant's choice not to testify at trial and, thus, were highly improper. State v. Becton, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 11, 2013).

Lead prosecutor's remark during final closing argument at defendant's murder trial amounted to a constitutionally impermissible comment upon defendant's exercise of the constitutional right to remain silent and not testify because the prosecutor walked over to defendant's table, gestured towards defendant, and declared in a loud voice “Just tell us where you were, that's all we are asking,” and the State of Tennessee did not prove that the error was harmless. State v. Jackson, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

Regardless of the prosecutor's intent, the prosecutor's remarks were of such a character that the jury would necessarily have taken them to be a comment on defendant's failure to testify, as the prosecutor's argument directly referenced defendant's failure to testify several times and implicitly invited the jury to use defendant's silence as a tacit admission of guilt; this was not harmless beyond a reasonable doubt and the judgment was reversed. State v. Robinson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 481 (Tenn. Crim. App. June 23, 2015).

Defense repeatedly suggested that the child received his injuries at wrestling practice, and the prosecutor's comments during closing were merely a response to this defense theory rather than a comment on defendant's right to remain silent, and the comments were not of such a character that the jury would necessarily have taken them to be a comment on the defendant's failure to testify. State v. Pearman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 615 (Tenn. Sept. 21, 2017).

Prosecutor's single comment at the outset of his closing argument that nothing he said should be construed as a comment on defendant's failure to testify, when viewed in context with the surrounding statements, did not evince a manifest intent to comment on defendant's right not to testify nor was it of such a character that the jury would have believed it be a comment on defendant's decision not to testify; rather, the prosecutor seemed to be issuing a blanket mea culpa for any future mistakes he might commit during his closing argument. State v. Hamm, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 561 (Tenn. Crim. App. July 26, 2018).

Prosecutorial misconduct did not occur as the prosecutor did not directly comment on defendant's right not to testify, and the remark was not of such character that the jury would necessarily have taken it to be a comment on defendant's failure to testify because, when viewed in the context of closing argument, the prosecutor's remark in rebuttal argument was in response to trial counsel's argument and addressed the victim's credibility; and the prosecutor later told the jury that it would be breaking the rules if it considered the fact that defendant failed to testify during its deliberations. State v. Hopkins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 738 (Tenn. Crim. App. Oct. 1, 2018).

117. —Waiver.

Where defendant charged with rape of a child filed a motion to suppress certain statements he made to the polygraph examiner after the polygraph test, the supreme court of Tennessee held that the statements were admissible; defendant received Miranda warnings, defendant executed a written waiver of his constitutional rights, and the evidence did not establish, nor even suggest, that defendant's potentially incriminating statements resulted from police coercion or overreaching rather than his own free will. State v. Damron, 151 S.W.3d 510, 2004 Tenn. LEXIS 993 (Tenn. 2004).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the waiver of his right to testify at his sentencing hearing was knowing, intelligent, and voluntary as required by the U.S. Constitution and Tenn. Const. art. I, §§ 8, 9, and 16; the appellate court rejected defendant's argument that he was not sufficiently advised of the salient consequences of exercising his fundamental constitutional right to testify. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

Trial court did not err in denying defendant's motion to suppress statements he made to a police officer because under the totality of the circumstances surrounding the interview, defendant voluntarily, knowingly, and understandingly waived his Miranda rights and gave a confession; the statement and waiver of rights were both signed by defendant and the officer, and defendant did not seem impaired or under the influence of any intoxicant according to the officer. State v. Thrasher, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. July 18, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 1048 (Tenn. Dec. 17, 2014).

In defendant's death penalty case, he voluntarily waived his Miranda rights because defendant signed the rights waiver form before each of the four interviews began, and the record was devoid of any evidence that defendant was coerced, threatened, or tricked into signing any of the waivers. State v. Freeland, 451 S.W.3d 791, 2014 Tenn. LEXIS 640 (Tenn. Sept. 17, 2014), cert. denied, Freeland v. Tennessee, 191 L. Ed. 2d 389, 135 S. Ct. 1428, — U.S. —, 2015 U.S. LEXIS 1112 (U.S. 2015).

Trial court did not err by determining that defendant understood his Miranda rights as they were read in English and that he voluntarily, knowingly, and intelligently waived those rights where the detective did not have any trouble communicating with defendant in English, defendant did not appear to have trouble understanding the detective, and defendant did not specifically accept or reject the detective's offer to read the waiver form in Spanish. State v. Lopez, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 838 (Tenn. Crim. App. Oct. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 209 (Tenn. Mar. 24, 2016).

Motion to suppress defendant's statements made to a detective and a special agent was properly denied because defendant did not need to have been advised of his Miranda rights at all as defendant was not subjected to custodial interrogation because he voluntarily went to the police station and he was not restrained during the first or second interview; even if defendant had been in custody, defendant was advised of his Miranda rights prior to the polygraph test and the second interview, and his admissions and written statement would have been admissible as he knowingly and voluntarily waived his constitutional rights; and defendant's admissions and statements were made voluntarily and not as the result of defendant's will being overborne. State v. Byrge, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 964 (Tenn. Crim. App. Dec. 3, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 328 (Tenn. May 5, 2016).

Trial court did not err in denying defendant's motion to suppress, as defendant was advised of his Miranda rights and expressed a willingness to talk to investigators and continued to do so for several hours without any indication that he wanted the interview to end, and defendant did not present any evidence to show that the officers' questions or tactics were such as to overbear defendant's will to bring about a statement that was a product of coercion. State v. McAllister, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1010 (Tenn. Crim. App. Dec. 16, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 278 (Tenn. Apr. 6, 2016).

Trial court did not err in denying defendant's motion to suppress statements, as he was provided Miranda warnings, signed a waiver of his rights, suffered from no injury or illness during his interview, was not abused or deprived of food or sleep, and did not appear intoxicated State v. Porrazzo, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1022 (Tenn. Crim. App. Dec. 17, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 337 (Tenn. May 5, 2016).

Trial court did not err in denying defendant's motion to suppress after finding that he understood English and voluntarily and knowingly waived his rights before giving his statement. State v. Reyes, 505 S.W.3d 890, 2016 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. May 24, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 676 (Tenn. Sept. 23, 2016).Trial court did not err by denying defendant's motion to suppress his statement to an investigator where the investigator's request that defendant be present during the execution of the search warrant did not establish that he was in custody, the court deferred to the trial court's finding that defendant was properly advised of his Miranda rights and signed the waiver, the evidence supported the finding that his waiver was voluntary, and the investigator testified that he asked defendant about peer-to-peer software after he waived his Miranda rights. State v. Doria, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 622 (Tenn. Aug. 17, 2016).

Defendant's statement to the police was given freely and voluntarily, and therefore the trial court did not err by admitting the statement during defendant's trial, where he did not unequivocally invoke his right to remain silent. Although defendant initially stated that he did not want to talk, he nevertheless continued speaking with the officers. State v. Wade, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 734 (Tenn. Crim. App. Sept. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 47 (Tenn. Jan. 19, 2017).

No legal authority supported the trial court's assertion that defendant waived his right to remain silent by calling 911 and surrendering to the police. State v. Pike, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 52 (Tenn. Crim. App. Jan. 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 264 (Tenn. Apr. 12, 2017).

Although defendant's proficiency in the English language was lacking, his command of English allowed him to understand the Miranda warnings, and his limited proficiency did not prevent him from making a knowing, voluntary, and intelligent waiver of his constitutional rights. State v. Cruz, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 17, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 514 (Tenn. Aug. 16, 2017).

Trial court properly denied defendant's motion to suppress the statement he made to an investigator because its finding that defendant voluntarily waived his rights and provided the statement to the investigator was fully supported by the proof; defendant stated that he understood his rights, had no questions, and signed the form waiving his rights, and at no time during the approximately hour-long interview did the investigator raise his voice or become hostile towards defendant. State v. Sisco, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. Feb. 21, 2018).

Because a detective testified that he provided Miranda warnings to defendant, who had an extensive criminal history that made him very familiar with law enforcement, and that defendant voluntarily waived those rights, and the trial court specifically accredited the detective's testimony, the accredited evidence presented by the State supported the conclusion that defendant voluntarily waived his constitutional rights, and, in consequence, the trial court did not err by denying defendant's motion to suppress. State v. Amail John Land, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 665 (Tenn. Crim. App. Aug. 29, 2018).

There was sufficient evidence in the record to support the trial court's finding that defendant's confession was voluntary because the record showed that defendant had a high IQ, he was advised of his Miranda rights before being interviewed and waived those rights both orally and in writing, he acknowledged that he understood the rights he was waiving, he never refused to answer questions or asked for an attorney, there was an audio recording and a transcript of his statement, and there was no evidence that defendant's physical or mental state at the time of his confession made him incapable of waiving his rights. State v. Ellis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 720 (Tenn. Crim. App. Sept. 21, 2018).

Denial of defendant's motion to suppress defendant's confession made to the police, through a police interpreter, was appropriate because, under the totality of the circumstances, defendant failed to demonstrate that defendant did not knowingly, intelligently, and voluntarily waive defendant's Miranda rights. Although defendant had no education and could not read or write, the police interpreter read and explained a Spanish Advice of Rights form to defendant. State v. Gonzales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 783 (Tenn. Crim. App. Oct. 18, 2018).

Trial court did not err by denying defendant's motion to suppress his statements to an investigator while he was in custody and incarcerated because defendant signed a Miranda waiver form prior to his recorded interview, the investigator's reference to defendant not being in trouble and the outcome of the interview depended on his cooperation was not deceitful, and defendant requested the interview the occurred while he was incarcerated. State v. Garland, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 74 (Tenn. Crim. App. Feb. 5, 2019).

Trial court did not err when it held that defendant did not knowingly and voluntarily waived his Miranda rights because it considered his intellectual disability, the circumstances of his statement at the police department, including the officers' failure to videotape the statement, his emotional state during the interview, the statements he made to competency evaluators, the evaluators' conclusions that he did not have an understanding of his rights, and that defendant misspelled his name on the admonition form. State v. Fansano, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 256 (Tenn. Crim. App. Apr. 24, 2019).

Circumstances supported the trial court's ruling that defendant's statements were voluntarily given because in the interrogation room he was shackled to a chair by a single leg iron, he was given food and drink and was permitted to smoke, although he signed his second statement 12 hours after his arrest no evidence suggested the police intentionally deprived him of sleep to coerce a statement from him, and he was informed he had the right to counsel and he chose to waive that right. State v. Watison, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 552 (Tenn. Crim. App. Aug. 30, 2019).

Trial court did not err by holding that the juvenile's waiver of his rights prior to giving a statement to law enforcement was valid because he was 17 years old, he had prior experiences with the criminal justice system, the trial court found that the officers were not threatening or intimidating during the interview, that the interview did not last an excessive amount of time, and the juvenile demonstrated no fear or panic. The juvenile had previously executed a Miranda waiver with the advice of his parents and was aware that his statements could be used against him. State v. Sturghill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 439 (Tenn. Crim. App. June 17, 2020).

118. —Fruit of Poisonous Tree.

Physical evidence discovered as a result of defendant's statements to a detective that were obtained in violation of defendant's Miranda rights under U.S. Const. amend. 5, and Tenn. Const. art. I, § 9 did not have to be suppressed as: (1) The fruit of the poisonous tree doctrine had not been applied as a remedy for Miranda violations; (2) The Fifth Amendment's privilege against self-incrimination was not implicated by the introduction at trial of physical evidence resulting from voluntary statements; and (3) Defendant's statements were voluntary, even though the interrogations were lengthy and he was not given a blanket, as he was not physically harmed, threatened with violence, or threatened with the deprivation of food or sleep, and was not given a blanket because he had expressed suicidal thoughts. State v. Climer, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Findings supported the trial court's conclusion that the State had proven by a preponderance of the evidence that defendant's statement was voluntary under Tenn. Const. art. I, § 9 where (1) defendant was thoroughly advised of her Miranda rights, (2) when defendant was questioned, she readily provided information in narrative form without extensive questioning, and (3) defendant was able to communicate without apparent impairment. State v. Polochak, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 16, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 396 (Tenn. May 14, 2015).

119. —Scope of Review.

The trial court's determination with reference to compliance with the Miranda mandate by the investigating officers and the voluntary character of the statement made by the defendant during custodial interrogation is conclusive unless the appellate court finds the evidence touching these matters preponderates against the lower court judgment. House v. State, 592 S.W.2d 902, 1979 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. 1979).

Factors in the voluntariness of a non-custodial confession and factors involved in whether or not a custodial interrogation was involved might overlap but were not the same, and thus defendant changed theories on appeal; only arguments presented to the trial court as to why the statement should have been suppressed could be considered, and there was no evidence that defendant was intimidated, coerced, threatened, or otherwise induced into making the statement and thus consideration of the error was not necessary to do substantial justice and plain error review was not warranted. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

119.5 —Prosecutor's Comments.

Even though the prosecutor improperly commented on defendant's constitutional right to remain silent during the rebuttal portion of the State's closing argument, as the prosecutor stated, “I don't know what happened in that bedroom; he does. He doesn't want to tell us,” the error was harmless given the overwhelming evidence of defendant's guilt. State v. Cooke, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. July 23, 2018).

Prosecutor's 18 questions directed at defendant, imploring him to explain his actions violated defendant's right against self incrimination by implicitly inviting the jury to consider defendant's silence and to question why he refused to testify on his own behalf. State v. South, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. Sept. 30, 2019).

120. Post-Conviction Relief.

Unsupported conclusory allegations in petition for post-conviction relief to the effect that defendant's right to fair and impartial trial was denied because of excessive publicity did not require evidentiary hearing prior to dismissal. Monts v. State, 2 Tenn. Crim. App. 586, 455 S.W.2d 627, 1970 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1970).

Petitioner was not denied due process by his post-conviction counsel's failure to either withdraw as counsel or file an application for permission to appeal after the court of criminal appeals upheld the trial court's denial of post-conviction relief. All that due process requires during post-convictions procedures is a meaningful opportunity to be heard and petitioner was afforded a full evidentiary hearing and full review in his first post-conviction appeal. Stokes v. State, 146 S.W.3d 56, 2004 Tenn. LEXIS 829 (Tenn. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 878 (Tenn. Oct. 11, 2004).

Inmate failed to prove by a preponderance of the evidence that he was entitled to post-conviction relief on an ineffective assistance of counsel claim because counsel was prepared for trial, the inmate decided to plead guilty to avoid the possibility of a lengthy incarceration in exchange for the minimum sentence, counsel gave the inmate advice about whether to withdraw his guilty plea, and the inmate decided not to withdraw his plea. Cranmer v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 23, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 804 (Tenn. Sept. 17, 2015).

In a case in which defendant was convicted of aggravated robbery, defendant's protected right to autonomy was not violated by counsel's partial admission of guilt to simple robbery because nothing in the record showed that defendant made a clear assertion of his innocence or made an objection to that particular defense strategy; trial counsel did not concede defendant's guilt to the primary offense at any time; and, based on the post-conviction court's factual determinations, it appeared that the decision to partially admit involvement was an agreed-upon trial strategy likely made due to the identification of defendant and his own statement to the police. Broadnax v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 210 (Tenn. Crim. App. Mar. 29, 2019).

121. Death Penalty.

This state is not prohibited from imposing the death penalty in the manner set forth in § 39-2-202 et seq. (repealed) by the restrictions placed on it by the U.S. Const. amends. 8 and 14, and by Tenn. Const. art. I, §§ 9 and 16. Houston v. State, 593 S.W.2d 267, 1980 Tenn. LEXIS 392 (Tenn. 1979), cert. denied, Houston v. Tennessee, 449 U.S. 891, 101 S. Ct. 251, 66 L. Ed. 2d 117 (1980), overruled, State v. Brown, 836 S.W.2d 530, 1992 Tenn. LEXIS 401 (Tenn. 1992); State v. Bane, 853 S.W.2d 483, 1993 Tenn. LEXIS 148 (Tenn. 1993), cert. denied, Tennessee v. Bane, 510 U.S. 1040, 114 S. Ct. 682, 126 L. Ed. 2d 650, 1994 U.S. LEXIS 63 (1994).

Statutes pertaining to sentencing for first degree murder and appeal and review of a death sentence are not violative of the U.S. Const. amends. 5, 6, 8, and 14, nor of Tenn. Const. art. I, §§ 8, 9, 16, and 17, and Tenn. Const. art. II, § 2. State v. Shepherd, 902 S.W.2d 895, 1995 Tenn. LEXIS 269 (Tenn. 1995).

There is no constitutional basis for a rule that would require counsel to request a psychiatric evaluation in every capital case. Wilcoxson v. State, 22 S.W.3d 289, 1999 Tenn. Crim. App. LEXIS 1034 (Tenn. Crim. App. 1999).

122. Waiver of Rights.

Although the courts must presume a defendant did not waive his rights, and the prosecution's burden is great to prove otherwise, at least in some cases waiver can be clearly inferred from the actions and words of the person interrogated. House v. State, 592 S.W.2d 902, 1979 Tenn. Crim. App. LEXIS 300 (Tenn. Crim. App. 1979).

Trial courts should employ the procedural guidelines set forth by the Tennessee supreme court to ensure that a criminal defendant personally waives the right to testify. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

The waiver of a fundamental right will not be presumed from a silent record and the courts should indulge every reasonable presumption against the waiver of a fundamental right. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

By unilaterally deciding not to call the defendant as a witness, counsel deprived the defendant of his right to testify. Momon v. State, 18 S.W.3d 152, 1999 Tenn. LEXIS 581 (Tenn. 1999), review or rehearing denied, 18 S.W.3d 152, 2000 Tenn. LEXIS 153 (Tenn. 2000).

Trial court did not err in striking defendant's testimony from the record because his inappropriate behavior precluded a thorough cross-examination; thus, he was not entitled to the benefit of his testimony on direct examination. State v. Mosley, 200 S.W.3d 624, 2005 Tenn. Crim. App. LEXIS 1196 (Tenn. Crim. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 266 (Tenn. 2006).

The vacating of the judgments of the trial court against defendant and the remand of the case for appointment of new counsel and a new sentencing hearing was appropriate because the record showed that defendant did not knowingly, voluntarily, and intelligently waive defendant's right to counsel prior to defendant's sentencing hearing. Upon entry of new judgments, defendant was to have the opportunity to file a timely motion for new trial and a new notice of appeal. State v. Hughes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. Dec. 23, 2016).

Trial court properly determined that defendant voluntarily waived his rights because nothing suggested that the defendant's mental state played a role in his decision to waive his constitutional rights, the evidence indicated that the defendant had at least some prior experience with the police, the officers treated defendant courteously throughout each of the interviews, none of the interviews was prolonged, defendant was not at any time subjected to threats or physical abuse, and no evidence suggested that defendant was intoxicated or ill during any of the interviews. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

123. Miscellaneous.

Although defense counsel's failure to contemporaneously object to instances of improper argument by the State would typically constitute a waiver of the issue, under a plain error analysis, he established reversible error based upon the persistent pattern of prosecutorial misconduct, the cumulative effect of which adversely affected defendant's right to a fair trial. State v. Robinson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 481 (Tenn. Crim. App. June 23, 2015).

124. Right to Be Present.

Defendant claimed that allowing the jury to view a video without his being present constituted reversible error; as defendant did not personally waive his right to be present, he had not waived the issue. State v. Case, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. Nov. 24, 2015), appeal denied, State v. Denver, — S.W.3d —, 2016 Tenn. LEXIS 208 (Tenn. Mar. 22, 2016).

In this case, where the jury room was not equipped to play the video, the better practice would have been for the court officer to bring the jury into the courtroom without the presence of the judge or counsel, but if the jury must review evidence in the courtroom in the presence of the trial court and counsel, then the defendant also should be present; defendant was present when the jury viewed the video during the State's case, and the proof in the case had closed and defense counsel was present, and any error was harmless. State v. Case, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. Nov. 24, 2015), appeal denied, State v. Denver, — S.W.3d —, 2016 Tenn. LEXIS 208 (Tenn. Mar. 22, 2016).

NOTES TO DECISIONS

1. Application and Scope of Provision.

While the provision in the constitution, forbidding a person to be twice put in jeopardy for the same offense, is confined to cases where the punishment extends to life or limb, still it is well settled by the common law that no one shall be twice brought into jeopardy for one and the same offense; and, therefore, where the protection against a second jeopardy is not secured by the constitution, it is secured by the common law, which is enforced here in such cases. State v. Reynolds, 5 Tenn. 109, 5 Tenn. 110, 1817 Tenn. LEXIS 66 (1817); Greenwood v. State, 65 Tenn. 567, 1873 Tenn. LEXIS 410, 32 Am. Rep. 539 (1873); United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609, 36 L. Ed. 445, 1892 U.S. LEXIS 2081 (U.S. Apr. 4, 1892).

The protection of Tenn. Const. art. I, § 10 is not merely from punishment from an offense as to which the defendant has been once acquitted but also protection from successive harassing prosecutions for a single offense. King v. State, 216 Tenn. 215, 391 S.W.2d 637, 1965 Tenn. LEXIS 657 (1965).

Tenn. Const. art. I, § 10 prohibits being tried as well as punished twice for the same crime. Whitwell v. State, 520 S.W.2d 338, 1975 Tenn. LEXIS 701 (Tenn. 1975).

The double jeopardy clause protects not only a second punishment for the same offense but also forbids a second trial for the same offense. Metropolitan Government of Nashville & Davidson County v. Miles, 524 S.W.2d 656, 1975 Tenn. LEXIS 674 (Tenn. 1975).

There is no legal significance for double jeopardy purposes that the convictions were in separate counties. Lumpkins v. State, 584 S.W.2d 244, 1979 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1979).

The essence of the prohibition against double jeopardy is not that a defendant may incur a greater risk of being found guilty in a second trial than he had in the first, or that the second trial may be conducted prejudicially, but rather that he would risk conviction for an offense for which he has already been placed on trial and in jeopardy. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

If a state legislature has clearly intended that a defendant be punished for violation of two separate criminal statutes proscribing the same conduct, there is no constitutional prohibition to the separate punishments being imposed. State v. Davis, 741 S.W.2d 120, 1987 Tenn. Crim. App. LEXIS 2654 (Tenn. Crim. App. 1987).

When the state presents proof reflecting the existence of more than one offense of the same type and the indictment is not specific as to the offense for which the accused is being tried, an election is required to: (1) Enable the defendant to prepare for and make his defense to the specific charge; (2) Protect him from double jeopardy by individualization of the issue; and (3) Insure that the jury's verdict may not be a matter of choice between offenses with some jurors convicting on one offense and others on another. State v. Brown, 823 S.W.2d 576, 1991 Tenn. Crim. App. LEXIS 753 (Tenn. Crim. App. 1991).

The double jeopardy clauses of the state and federal constitutions protect against: (1) A second prosecution for the same offense after conviction; (2) A second prosecution for the same offense after an acquittal; and (3) Multiple punishments for the same offense. State v. Mounce, 859 S.W.2d 319, 1993 Tenn. LEXIS 289 (Tenn. 1993); State v. Lewis, 958 S.W.2d 736, 1997 Tenn. LEXIS 631 (Tenn. 1997).

Supreme court overrules State v. Barney, 986 S.W.2d 545, 1999 Tenn. LEXIS 65 (Tenn. 1999), based on its reliance on a due process analysis; the propriety of multiple convictions of sexual offenses arising from an allegedly single sexual assault must be analyzed under principles of double jeopardy. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Although the double jeopardy clause, U.S. Const. amend. 5 and Tenn. Const. art. I, § 10, was not implicated because the jury was not reassembled to determine guilt or innocence, but only to determine the facts relevant to sentencing, there was no separate jeopardy, the recall of the discharged jury violated defendant's due process rights under U.S. Const. amend. 5, U.S. Const. amend. 14, § 1, and Tenn. Const. art. I, §§ 6, 8, 9 because once a jury had returned a complete verdict, or the jurors had separated and passed from the control of the court, the jury could not be reassembled to act on the case for any purpose. Accordingly the case was remanded to the trial court to select a new jury in order to hold a new trial solely on the issue of whether defendant's conviction was his first, second, third, or fourth driving under the influence offense under T.C.A. § 55-10-401 based on the evidence presented regarding prior convictions. State v. Nash, 294 S.W.3d 541, 2009 Tenn. LEXIS 652 (Tenn. Oct. 7, 2009).

Tennessee Supreme Court's rejection of the State v. Denton double jeopardy test and adoption of the federal standard in State v. Watkins cannot be classified as unexpected and indefensible by reference to the law as it then existed, and the adoption of the federal test did not constitute arbitrary judicial action against which the Due Process Clause aims to protect; thus, the retroactive application of Watkins does not offend due process and defendant was not entitled to have his double jeopardy claim evaluated pursuant to the prior, rejected test. State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015).

Following list of non-exclusive factors may be taken into consideration when, in a multiple description case involving a single victim, the defendant claims his or her multiple convictions arise from the same act or transaction: (1) The nature of the defendant's actions that are alleged to be in violation of the various statutes. (2) The temporal proximity between the defendant's actions. (3) The spatial proximity of the physical locations in which the defendant's actions took place. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Although the inquiry required under unit-of-prosecution cases is somewhat different than that required for multiple description cases, reference to such cases is helpful to a determination of whether a defendant accused of violating two different sexual assault statutes committed only a single act or transaction. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Following list of non-exclusive factors may be taken into consideration when, in a multiple description case involving a single victim, the defendant claims his convictions arise from the same act: (6) Whether the defendant deliberately used different parts of his or her body (or objects) to assault the victim sexually. (7) Whether the defendant's assault was interrupted by some event, giving him an opportunity to cease his assault or re-form a subsequent intent to commit a subsequent assault. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Following list of non-exclusive factors may be taken into consideration when, in a multiple description case involving a single victim, the defendant claims his convictions arise from the same act: (4) Whether the defendant's actions contacted different intimate areas of the victim's body and the degree of proximity of those areas to each other. (5) Whether the defendant's contact with different intimate areas was deliberate or incidental to facilitating contact with another intimate area. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Aggravated child abuse statute focuses on the act resulting in injury and the legislature did not intend for defendants charged with aggravated child abuse to be punished separately for each individual injury; instead, the unit of prosecution is the act that caused the injury. State v. Hendrix, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. May 14, 2019).

Proper unit of prosecution for aggravated child abuse offenses is “the act of abuse” rather than the injury inflicted. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

2. —Conviction in Companion Case.

Prior conviction in companion case does not bar a subsequent prosecution. State v. Allen, 752 S.W.2d 515, 1988 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1988).

3. —Corporation.

The convictions of both the owner of the company and the corporate entity itself for the same violation of the Water Quality Control Act of 1977 (former part 2 of chapter 3, title 69 [repealed]) did not violate double jeopardy principles. State v. Electroplating, Inc., 990 S.W.2d 211, 1998 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Aug. 7, 1998), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

4. —Same Episode.

Dual convictions of especially aggravated robbery and premeditated first degree murder do not violate double jeopardy protections. State v. Zirkle, 910 S.W.2d 874, 1995 Tenn. Crim. App. LEXIS 103 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Mar. 21, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 481 (Tenn. Aug. 28, 1995), dismissed, Zirkle v. Carlton, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 123960 (E.D. Tenn. June 12, 2013).

Double jeopardy does not bar dual convictions for disorderly conduct and public intoxication because public intoxication requires an element (that the defendant be under the influence of a controlled substance) which is not required for disorderly conduct, different evidence is required for each offense and the statutes have different objectives. State v. Wilson, 990 S.W.2d 726, 1998 Tenn. Crim. App. LEXIS 1168 (Tenn. Crim. App. 1998).

Attempted rape and sexual battery constituted the same offense under the double jeopardy clause where the victim's testimony that the defendant placed his hand on her inner thigh and made a statement of desire was the essential evidence used to establish both offenses, and the case involved only one victim and one discrete act of touching. State v. Mixon, 983 S.W.2d 661, 1999 Tenn. LEXIS 33 (Tenn. 1999).

Dual conviction of a defendant for both aggravated sexual battery and rape of a child did not violate double jeopardy provisions. State v. Barney, 986 S.W.2d 545, 1999 Tenn. LEXIS 65 (Tenn. 1999), overruled in part, State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Theft by obtaining property and theft by exercising control over the same property are the same offense. State v. Kennedy, 7 S.W.3d 58, 1999 Tenn. Crim. App. LEXIS 136 (Tenn. Crim. App. 1999).

There is no double jeopardy impediment to convicting and sentencing a defendant for both incest and criminal sexual penetration arising out of the same act. State v. Beauregard, 32 S.W.3d 681, 2000 Tenn. LEXIS 662 (Tenn. 2000).

Defendant's convictions under T.C.A. § 39-17-1003 were multiplicitous where the state presented no evidence concerning which pictures came from which website or when defendant accessed each picture; therefore, all of the pictures could have come from a single website and could have been automatically downloaded onto defendant's hard drive simultaneously. State v. Pickett, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1076 (Tenn. Crim. App. Oct. 3, 2005), aff'd, 211 S.W.3d 696, 2007 Tenn. LEXIS 10 (Tenn. 2007).

One of defendant's convictions for reckless endangerment with a deadly weapon was improper under T.C.A. §§ 39-13-103(a) and 39-16-603(b) because it violated constitutional double jeopardy protections. Defendant was being punished for the same conduct in both counts because the same evidence led to both convictions, and the evidence revealed that the prosecution of those two counts concerned a single episode of criminal conduct that involved multiple victims. State v. Cross, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 492 (Tenn. Crim. App. June 17, 2010), aff'd in part, rev'd in part, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Judgments of conviction for driving under the influence of an intoxicant (DUI) and driving with a blood alcohol concentration of .08 percent or more, under T.C.A. § 55-10-401, violated the principles of double jeopardy because defendant was arrested one evening based upon a single episode for erratic driving, failing field sobriety tasks, and registering a high blood alcohol content. Accordingly, the two judgments of conviction were to be modified to merge the convictions into a single conviction of DUI. State v. Cooper, 336 S.W.3d 522, 2011 Tenn. LEXIS 191 (Tenn. Mar. 4, 2011).

Defendant's convictions for attempt to commit aggravated sexual battery and rape of a child arose out of the same act or transaction because the contact between defendant's penis and the victim's buttocks and genitals occurred simultaneously and with no change in position; defendant's touching of the victim's buttocks with his penis was not an act independent of his rape of her genital area but, rather, was merely incidental to the genital penetration. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Defendant's multiple convictions for employment of a firearm during the commission of a dangerous felony, based on convictions for the attempt to commit voluntary manslaughter involving multiple victims when defendant fired a single weapon in a shooting incident, did not violate the prohibition against double jeopardy. State v. Harbison, — S.W.3d —, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

5. —Multiple Hung Juries.

Where multiple, successive trials result in hung juries, the propriety of a dismissal of the indictment rests within the discretion of the trial court. It must weigh the rights of the public to complete the prosecution against the right of the accused to be free from harassment, oppression, or an unlimited number of trials. State v. Anthony, 836 S.W.2d 600, 1992 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. 1992).

6. —Pretrial Detention.

Detention of defendant for six hours following arrest for driving under the influence was not punishment for purposes of double jeopardy. State v. Coolidge, 915 S.W.2d 820, 1995 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1995), overruled, State v. Troutman, 979 S.W.2d 271, 1998 Tenn. LEXIS 665 (Tenn. 1998).

Detention of defendant for several hours because he refused to submit to a breathalyzer test after his arrest for driving while under the influence and driving on a suspended or revoked license did not bar the state's subsequent prosecution of him for those offenses. State v. Pennington, 952 S.W.2d 420, 1997 Tenn. LEXIS 433 (Tenn. 1997).

7. —Lesser Included Offenses.

A plea to a lesser included offense does not bar the state from trying the accused for the greater offense and a conviction for the greater offense does not violate double jeopardy. Parham v. State, 885 S.W.2d 375, 1994 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. 1994).

Tenn. Const. art. I, § 10 barred defendant's conviction for possessing a weapon intended for use in the commission of an offense because the offense was a lesser included offense of aggravated assault. State v. Denton, 938 S.W.2d 373, 1996 Tenn. LEXIS 783 (Tenn. 1996), overruled, State v. White, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012), overruled, State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012), overruled, State v. Dawson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. May 2, 2012), overruled, State v. Brawner, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. May 3, 2012), overruled, State v. Buford, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 24, 2012), overruled, State v. Readus, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 17, 2012), overruled, State v. Alston, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. May 30, 2013), overruled, State v. Hollins, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Nov. 25, 2013), overruled, State v. Ralph, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 23, 2013), overruled, Garrett v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. Apr. 10, 2014), overruled, State v. Davis, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. Apr. 21, 2014), overruled in part, State v. Isabell, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. July 28, 2014), overruled, State v. Hernandez, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. July 29, 2014), overruled, State v. Martin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 10, 2015), overruled, State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015), overruled in part, State v. Itzol-Deleon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 28, 2016), overruled, State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016), overruled, State v. Jernigan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 15, 2017), overruled in part, State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017), overruled, Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), overruled, State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017).

Tenn. Const. art. I, § 10's prohibition double jeopardy barred defendant's conviction for attempted voluntary manslaughter because the offense was a lesser included offense of aggravated assault. State v. Denton, 938 S.W.2d 373, 1996 Tenn. LEXIS 783 (Tenn. 1996), overruled, State v. White, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012), overruled, State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012), overruled, State v. Dawson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. May 2, 2012), overruled, State v. Brawner, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. May 3, 2012), overruled, State v. Buford, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 24, 2012), overruled, State v. Readus, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 17, 2012), overruled, State v. Alston, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. May 30, 2013), overruled, State v. Hollins, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Nov. 25, 2013), overruled, State v. Ralph, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 23, 2013), overruled, Garrett v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. Apr. 10, 2014), overruled, State v. Davis, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. Apr. 21, 2014), overruled in part, State v. Isabell, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. July 28, 2014), overruled, State v. Hernandez, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. July 29, 2014), overruled, State v. Martin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 10, 2015), overruled, State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015), overruled in part, State v. Itzol-Deleon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 28, 2016), overruled, State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016), overruled, State v. Jernigan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 15, 2017), overruled in part, State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017), overruled, Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), overruled, State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017).

Where evidence used to prove the offenses of attempted second degree murder and aggravated assault was the same, defendant's convictions for both offenses were the “same” for purposes of Tenn. Const. art. I, § 10. State v. Hall, 947 S.W.2d 181, 1997 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. 1997).

Driving on a revoked license is not a lesser included offense of violating the habitual offender law; however, under Tenn. Const. art. I, § 10, where the same evidence was relied on to prove both offenses, convictions for both could not stand. State v. Green, 947 S.W.2d 186, 1997 Tenn. Crim. App. LEXIS 98 (Tenn. Crim. App. 1997).

Because the offense of theft is wholly incorporated into the offense of aggravated robbery, and because facilitation of theft is thereby incorporated into the offense of facilitation of robbery, the offenses are the “same” for double jeopardy purposes. State v. Hayes, 7 S.W.3d 52, 1999 Tenn. Crim. App. LEXIS 129 (Tenn. Crim. App. 1999).

Because of defendant's right to fair and reasonable notice of the charges against the defendant under Tenn. Const. art. I, § 9, defendant could only be convicted of a crime raised by the indictment or of a crime which was a lesser included offense of such crime; since reckless aggravated assault was not a lesser included offense, as determined by application of the three-part Burns test for identifying lesser included offenses, of the charged crime of attempted second degree murder, defendant could not be convicted of reckless aggravated assault. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Defendants' convictions on two counts of aggravated robbery each violated double jeopardy principles, because the proper unit of prosecution for aggravated robbery in Tennessee was the number of thefts rather than the number of victims; therefore, because defendants committed a single theft, albeit in the presence of two persons, they each committed one aggravated robbery, not two. State v. Franklin, 130 S.W.3d 789, 2003 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 2003), appeal denied, State v. Sandridge, — S.W.3d —, 2003 Tenn. LEXIS 1302 (Tenn. Dec. 22, 2003).

Because the elements of aggravated sexual battery and rape of a child are not the same and neither is a lesser included offense of the other, the legislature intended to permit multiple punishments and they are not the same offense for double jeopardy purposes. State v. Stewart, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. July 22, 2013), overruled, Harrison v. Parris, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 154841 (M.D. Tenn. Nov. 8, 2016).

Court of criminal appeals did not err by ordering the merger of defendant's convictions for attempt to commit aggravated sexual battery and rape of a child because attempt to commit aggravated sexual battery was a lesser-included offense of rape of a child, and the dual convictions violated double jeopardy; the appropriate remedy for the double jeopardy violation was the merger of the lesser offense into the greater offense. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

8. —Same or Different Offense.

A plea of former acquittal or conviction upon a sufficient indictment is a good plea in bar of a second indictment, though judgment was never rendered on such acquittal or conviction. State v. Norvell, 10 Tenn. 24, 1820 Tenn. LEXIS 6 (1820); Slaughter v. State, 25 Tenn. 410, 1846 Tenn. LEXIS 4 (1846); State v. Cameron, 50 Tenn. 78, 1871 Tenn. LEXIS 67 (1871) (on the general principle).

Such plea is good, where the defendant was acquitted of the murder, but was found guilty of manslaughter, and the judgment was erroneously arrested. State v. Norvell, 10 Tenn. 24, 1820 Tenn. LEXIS 6 (1820); Mikels v. State, 50 Tenn. 321, 1871 Tenn. LEXIS 104 (1871) (in the dissenting opinion, and on the general principle); Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L. Ed. 506, 1882 U.S. LEXIS 1218 (1883), overruled, Collins v. Youngblood, 111 L. Ed. 2d 30, 110 S. Ct. 2715, 497 U.S. 37, 1990 U.S. LEXIS 3294 (1990), overruled, Helsley v. State, 809 N.E.2d 292, 2004 Ind. LEXIS 471 (Ind. 2004), overruled, John L. v. Superior Court, 33 Cal. 4th 158, 91 P.3d 205, 2004 Cal. LEXIS 5518 (2004), overruled, Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 (Ky. 2009).

To entitle the accused to the benefit of the plea of former acquittal, it is necessary that the crime charged in the last indictment shall be precisely the same with that charged in the first, and that the first indictment is good in point of law. The true test by which the question whether such plea is a sufficient bar may be tried is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Hite v. State, 17 Tenn. 198, 1836 Tenn. LEXIS 30 (1836); State v. Cameron, 50 Tenn. 78, 1871 Tenn. LEXIS 67 (1871).

Plea of former conviction as to misdemeanor before a justice, and plea of not guilty as to the felony. Mikels v. State, 50 Tenn. 321, 1871 Tenn. LEXIS 104 (1871); Rose v. State, 77 Tenn. 388, 1882 Tenn. LEXIS 71 (1882).

Plea of former conviction before a justice is no bar to an indictment for the felony. Mikels v. State, 50 Tenn. 321, 1871 Tenn. LEXIS 104 (1871); McNulty v. State, 110 Tenn. 482, 75 S.W. 1015, 1903 Tenn. LEXIS 73 (1903).

A former conviction for the disturbance of public worship is no defense to an indictment for an assault with intent to commit murder in the second degree, though both grew out of the same act. State v. Ross, 72 Tenn. 442, 1880 Tenn. LEXIS 41 (1880); Wright v. State, 76 Tenn. 563, 1881 Tenn. LEXIS 46 (1881).

To entitle a defendant to the benefit of the plea of autrefois acquit, the crime charged in the last indictment must be precisely that charged in the first and the first must be good in point of law. Wheelock v. State, 154 Tenn. 66, 289 S.W. 515, 1926 Tenn. LEXIS 104 (1926); Young v. State, 185 Tenn. 596, 206 S.W.2d 805, 1947 Tenn. LEXIS 361 (1947).

Plea of former conviction is properly overruled where first indictment charged larceny and second charged offense of accessory before the fact, the legislature having made the two offenses separate and distinct, though the punishment in each is the same. Wheelock v. State, 154 Tenn. 66, 289 S.W. 515, 1926 Tenn. LEXIS 104 (1926).

Acquittal or conviction of one of several related offenses resulting from the same transaction bars subsequent prosecution for the others. Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794, 1928 Tenn. LEXIS 163 (1929).

After a mistrial, double jeopardy did not preclude a retrial on the charge of conspiracy to commit first degree murder after a conviction on the charge of criminal responsibility for criminally negligent homicide because the elements were not the same under the test in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 1932 U.S. LEXIS 875 (1932). State v. Myers, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 19, 2007).

Where the facts constitute two offenses but conviction of the first offense would not necessarily convict of the second offense, prosecution on the first is not a bar to prosecution on the second offense. Where defendant was indicted under two counts, for driving while drunk and for driving carelessly and heedlessly and in wanton disregard of the rights and safety of others, acquittal on the first count and disagreement of the jury on the second, was no bar to a retrial and conviction on the second count. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

Where two or more offenses are carved out of the same transaction or where the facts constitute but one offense, which may be divided into parts as stealing several articles from the same person at the same time, conviction or acquittal for one of the offenses bars prosecution for the other. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

Where the facts constitute two offenses and facts which would convict of the first would necessarily convict of the second, conviction or acquittal on the first offense is a bar to prosecution of the second offense. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 1937 Tenn. LEXIS 80, 114 A.L.R. 1401 (1938).

Offenses are not the same, if upon the trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other, although some of the same facts may be necessary to be proved in the trial of each. Eager v. State, 205 Tenn. 156, 325 S.W.2d 815, 1959 Tenn. LEXIS 350 (1959).

Double jeopardy is related to the identity of the offense and not to the identity of the act. Eager v. State, 205 Tenn. 156, 325 S.W.2d 815, 1959 Tenn. LEXIS 350 (1959).

Use of prior convictions as the basis for enhancing the penalty for a subsequent felony conviction even though they have previously been used for such purpose on a prior habitual criminal conviction does not violate U.S. Const. amend. 5 or Tenn. Const. art. I, § 10. Pearson v. State, 521 S.W.2d 225, 1975 Tenn. LEXIS 682 (Tenn. 1975).

In the absence of an arrest warrant specifying the nature of one offense and the date on which it allegedly occurred, court could not determine whether separate charges were the same or grew out of the same transaction and consequently had to assume that the double prosecution did not violate the double jeopardy clause. Myers v. State, 577 S.W.2d 679, 1978 Tenn. Crim. App. LEXIS 279 (Tenn. Crim. App. 1978).

The prosecution of defendant under § 39-6-1710(a) (repealed) for use of a firearm in committing a felony as well as under § 39-2-502 (repealed) for bank robbery does not constitute double jeopardy. Lavon v. State, 586 S.W.2d 112, 1979 Tenn. LEXIS 493, 6 A.L.R.4th 794 (Tenn. 1979).

Where defendant pleaded guilty to driving without a license he could not thereafter be charged with driving while driving was prohibited under the Motor Vehicle Habitual Offenders Act (title 55, ch. 10, part 6) where the charges were based on the same incident. State v. Cloud, 588 S.W.2d 552, 1979 Tenn. LEXIS 496 (Tenn. 1979).

Prosecution on robbery charges after defendant had pleaded guilty to concealing the goods involved in the robbery was a second prosecution for larceny-related charges stemming from a single felonious transaction and in violation of defendant's double jeopardy rights. Lumpkins v. State, 584 S.W.2d 244, 1979 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1979).

Prosecutors may not circumvent the double jeopardy clause by dividing a single crime into separate temporal or spatial units, even though the perspective of a given authority may vary from that of law enforcement officials with overlapping jurisdictions over a given defendant. Lumpkins v. State, 584 S.W.2d 244, 1979 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. 1979).

Dual convictions of felony-murder and the underlying felony are offensive to the double jeopardy clause. State v. Strouth, 620 S.W.2d 467, 1981 Tenn. LEXIS 473 (Tenn. 1981), cert. denied, Strouth v. Tennessee, 455 U.S. 983, 102 S. Ct. 1491, 71 L. Ed. 2d 692, 1982 U.S. LEXIS 1099 (1982).

Where defendant removed child in violation of court custody orders and was cited for contempt, contempt citation did not constitute double jeopardy bar to subsequent criminal prosecution for kidnapping; the statutes involved had different purposes, different elements of proof, contempt proceedings were not criminal prosecutions, and the offense under each statute was not the same offense. State v. Sammons, 656 S.W.2d 862, 1982 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1982).

Acquittal of larceny under § 39-3-905 (repealed) did not bar as double jeopardy a subsequent prosecution for embezzlement under § 39-3-1121 (repealed). State v. Fishburn, 656 S.W.2d 879, 1983 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. 1983).

The double jeopardy clauses of the state and federal constitutions did not bar a prosecution for vehicular homicide when the defendant, prior to the victim's death, had pled guilty to and been sentenced in municipal court for driving while under the influence of an intoxicant, disregarding a stop sign, and unlawful possession of a controlled substance. State v. Mitchell, 682 S.W.2d 918, 1984 Tenn. LEXIS 952 (Tenn. 1984).

Dual convictions for aggravated kidnapping and the underlying felony necessary to enhance the kidnapping to an aggravated status is not violative of the double jeopardy provision of U.S. Const. amend. 5, nor Tenn. Const. art. I, § 10. State v. Davis, 741 S.W.2d 120, 1987 Tenn. Crim. App. LEXIS 2654 (Tenn. Crim. App. 1987).

Two crimes charged are not for the “same offense” where the indictments charge the defendants with the murder of different individuals. State v. Allen, 752 S.W.2d 515, 1988 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1988).

A single possession of the same substance can support but one intent under the same facts; thus jury verdict finding defendant possessed contraband with intent to sell, as well as with intent to deliver, violated double jeopardy principles. State v. Johnson, 765 S.W.2d 780, 1988 Tenn. Crim. App. LEXIS 445 (Tenn. Crim. App. 1988).

Conviction for three separate offenses of reckless driving arising out of one act of driving, the act of driving a truck into the path of an oncoming train, could not stand. State v. Gilboy, 857 S.W.2d 884, 1993 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. 1993).

Double jeopardy did not attach in a prosecution for reckless endangerment and driving while under the influence (DUI), where each conviction was based upon distinct conduct; the state's proof to the charge of DUI did not include proof of defendant's reckless driving; and the offenses neither had identical statutory elements, nor were lesser mutually inclusive. State v. Boggs, 865 S.W.2d 920, 1992 Tenn. Crim. App. LEXIS 896 (Tenn. Crim. App. 1992).

To create two separate crimes from one theft of the identical property from the identical person with the identical intent violates the double jeopardy provision. State v. Coleman, 891 S.W.2d 237, 1994 Tenn. Crim. App. LEXIS 474 (Tenn. Crim. App. 1994).

Convictions for the offenses of aggravated assault and reckless endangerment did not violate double jeopardy since each offense required proof of an additional fact that the other did not. State v. Brooks, 909 S.W.2d 854, 1995 Tenn. Crim. App. LEXIS 701 (Tenn. Crim. App. 1995).

In determining whether a defendant has received multiple punishments for the same offense, the courts must consider: (1) The statutory elements of the offenses; (2) The evidence used to establish the offenses; (3) Whether the defendant's conduct involved multiple victims or discrete acts; and (4) Whether the purpose of the respective statutes at issue is the same or different. Cable v. Clemmons, 36 S.W.3d 39, 2001 Tenn. LEXIS 1 (Tenn. 2001).

Defendant's convictions for both felony reckless endangerment and criminally negligent homicide did not violate the principles of double jeopardy, because the statutes are distinct, separate evidence was required to prove the offenses, and the offenses had separate victims. State v. Goodwin, 143 S.W.3d 771, 2004 Tenn. LEXIS 552 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 696 (Tenn. 2004).

Conspiracy under T.C.A. § 39-12-103(a) and murder under T.C.A. § 39-13-202(a)(1) were not the same offenses in that the commission of the offenses involved discrete acts, the most notable of which was the murder itself, and the legislative intent of the statutes was different. Further, T.C.A. § 39-12-106(c) codified the legislature's intent regarding prosecution for conspiracy and the underlying offense. State v. Stephenson, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 208 (Tenn. Crim. App. Mar. 9, 2005), aff'd, 195 S.W.3d 574, 2006 Tenn. LEXIS 454 (Tenn. 2006).

Defendant's dual convictions for statutory rape and especially aggravated sexual exploitation of a minor (based on defendant's videotape recording of the sexual encounter) did not violate his right to be free from double jeopardy because the offenses were not the “same” for double jeopardy purposes. State v. Smith, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. June 29, 2005), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

In a sexual exploitation of a minor case, because the state presented no evidence concerning which pictures came from which website or when defendant accessed each picture, the evidence established only one crime, and 10 of defendant's 11 convictions under the statute were properly dismissed as multiplicitous. State v. Pickett, 211 S.W.3d 696, 2007 Tenn. LEXIS 10 (Tenn. 2007), cert. denied, Harwood v. Tennessee, 169 L. Ed. 2d 305, 128 S. Ct. 436, 552 U.S. 973, 2007 U.S. LEXIS 11604 (2007).

Double jeopardy barred the state from prosecuting defendant on charges of rape of a child under T.C.A. § 39-13-522, after those charges had been improperly severed from aggravated sexual battery of a child under thirteen years of age, under T.C.A. § 39-13-504(a)(4), because the rape charges were included within the broad time frame alleged in the indictment and the time frame specified in the bill of particulars. State v. Schiefelbein, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. Feb. 8, 2007), modified, 230 S.W.3d 88, 2007 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Mar. 7, 2007).

In defendant's aggravated robbery case, defendant's right to be free from double jeopardy was not violated, because the verdict as announced by the foreperson and as noted on the verdict form clearly represented a finding by the jury that defendant was not guilty as a principal offender, but was guilty as someone criminally responsible for the conduct of the unidentified perpetrator, a theory of culpability encompassed in the charged offense and correctly instructed to the jury. State v. Welcome, 280 S.W.3d 215, 2007 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Sept. 26, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 134 (Tenn. Feb. 25, 2008).

If the threshold first step of the Blockburger test is surpassed, meaning the convictions arise from the same act or transaction, the second step of the Blockburger test requires courts to examine the statutory elements of the offenses; if the elements of the offenses are the same, or one offense is a lesser included of the other, then a court will presume that multiple convictions are not intended by the general assembly and that multiple convictions violate double jeopardy. However, if each offense includes an element that the other does not, the statutes do not define the “same offense” for double jeopardy purposes, and the court will presume that the legislature intended to permit multiple punishments. State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012).

Where the general assembly's intent is not clearly expressed, the Blockburger test should be applied to determine whether multiple convictions under different statutes punish the “same offense;” the first step of the Blockburger test is the threshold question of whether the convictions arise from the same act or transaction; this threshold question should be answered by reference to the charging instrument and the relevant statutory provisions. Here it is appropriate to consider whether the charges arise from discrete acts or involve multiple victims. If the convictions do not arise from the same act or transaction, there cannot be a violation of the double jeopardy protection against multiple punishment; thus, a threshold determination that multiple convictions do not arise from the same act or transaction ends the inquiry and obviates the need for courts to further analyze double jeopardy claims. State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012).

Supreme Court of Tennessee adopts the same elements test enunciated in Blockburger as the test for determining whether multiple convictions under different statutes constituted the same offense for purposes of the Double Jeopardy Clause of the Tennessee Constitution, Tenn. Const. art. I, § 10. State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012).

For purposes of double jeopardy, the elements of misdemeanor evading arrest and felony evading arrest are different as misdemeanor evading arrest specifically provides that the accused has to know that the officer is attempting an arrest while felony evading arrest merely requires a signal to stop; and felony evading arrest requires a specific method of evading, by use of a motor vehicle, and addresses the creation of a risk of death or injury to third parties, resulting in an increase of punishment. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

9. When Jeopardy Attaches.

No new trial can be granted, where the defendant in a criminal prosecution is acquitted. Martin v. M'Night, 1 Tenn. 330, 1808 Tenn. LEXIS 38 (1808); Esmon v. State, 31 Tenn. 14, 1851 Tenn. LEXIS 3 (1851).

The accused is in jeopardy, in a constitutional sense, as soon as he has been put to trial in a court of competent jurisdiction upon a valid indictment and plea thereto, before a jury sworn upon an issue to make deliverance. Ward v. State, 20 Tenn. 253, 1839 Tenn. LEXIS 44 (1839); Pritchett v. State, 34 Tenn. 285, 1854 Tenn. LEXIS 49 (1854); Walton v. State, 35 Tenn. 687, 1856 Tenn. LEXIS 44 (1856); State v. Connor, 45 Tenn. 311, 1868 Tenn. LEXIS 13 (1868); State v. Thurston, 50 Tenn. 67, 1870 Tenn. LEXIS 236 (1870); Link v. State, 50 Tenn. 252, 1871 Tenn. LEXIS 88 (1871); Moore v. State, 50 Tenn. 493, 1872 Tenn. LEXIS 23 (1871); Glasgow v. State, 68 Tenn. 485, 1876 Tenn. LEXIS 33 (1876); Wallace v. State, 72 Tenn. 309, 1880 Tenn. LEXIS 17 (1880); Tomasson v. State, 112 Tenn. 596, 79 S.W. 802, 1903 Tenn. LEXIS 128 (1903); Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 1947 Tenn. LEXIS 323 (1947); Green v. State, 147 Tenn. 299, 247 S.W. 84, 1922 Tenn. LEXIS 42, 28 A.L.R. 842 (1923); Holt v. State, 160 Tenn. 366, 24 S.W.2d 886, 1929 Tenn. LEXIS 115 (1930); King v. State, 216 Tenn. 215, 391 S.W.2d 637, 1965 Tenn. LEXIS 657 (1965); State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244, 1966 Tenn. LEXIS 642 (1966); Bell v. State, 220 Tenn. 685, 423 S.W.2d 482, 1968 Tenn. LEXIS 536 (1968).

A verdict without a plea or issue is a nullity, and the accused was not in jeopardy in such case. Link v. State, 50 Tenn. 252, 1871 Tenn. LEXIS 88 (1871); Wallace v. State, 72 Tenn. 309, 1880 Tenn. LEXIS 17 (1880).

Though the accused may have been once in jeopardy there are numerous cases in which he may be tried or put in jeopardy again. As, where a verdict was returned while the accused was absent, in prison or as a fugitive. Andrews v. State, 34 Tenn. 550, 1855 Tenn. LEXIS 96 (1855); Hutchinson v. State, 43 Tenn. 95, 1866 Tenn. LEXIS 20 (1866); or while absent in custody. State v. Hays, 70 Tenn. 156, 1879 Tenn. LEXIS 147 (1879); for it is a general rule in felony cases that the accused must be present during the entire trial. State v. France, 1 Tenn. 434, 1809 Tenn. LEXIS 24 (1809).

Where one of the jurors became separated from the other jurors, trial judge acted within his proper discretion in discharging the jury and ordering a mistrial instead of impaneling another juror or jury and defendant was not entitled to a plea of former jeopardy because of the action of the trial judge. Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 1947 Tenn. LEXIS 323 (1947).

Where in prosecution for obtaining money under false pretenses jury was duly impaneled and sworn, state introduced its evidence in chief, defendant testified and offered other witnesses in his behalf, and mistrial was then granted because of illness of state's chief witness whose testimony was required to rebut testimony of defendant, defendant was not placed in double jeopardy at subsequent trial as a result of proceedings at first trial. State v. Malouf, 199 Tenn. 496, 287 S.W.2d 79, 1956 Tenn. LEXIS 347 (1956).

Where defendant was charged in two counts of indictment with unlawful carnal knowledge of a female under twelve and with assault and battery with intent to carnally know female under twelve on basis of same alleged act, silence of jury on second count upon finding of guilt on unlawful carnal knowledge charge did not bar conviction in second trial of assault and battery with intent to carnally know female under twelve after reversal of first conviction since the greater offense included the lesser. Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170, 1965 Tenn. LEXIS 649 (1965).

An accused who upon his own initiative procures a judgment to be set aside and voluntarily accepts the result cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to a subsequent jeopardy. State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244, 1966 Tenn. LEXIS 642 (1966).

A person is not put in jeopardy when the court which tries him or attempts to try him has no jurisdiction of the person or subject matter. State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244, 1966 Tenn. LEXIS 642 (1966); Rivera v. State, 1 Tenn. Crim. App. 395, 443 S.W.2d 675, 1969 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1969).

Where at first trial jury found that defendant was insane at time of indictment and trial, such finding did not bar subsequent trial on guilt to defendant on issue of guilt as to homicide. Bell v. State, 220 Tenn. 685, 423 S.W.2d 482, 1968 Tenn. LEXIS 536 (1968).

A defendant who upon his own motion extricates himself from jeopardy will not be permitted to take advantage in a subsequent trial of the court's action in the removal of jeopardy from him. Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968).

The defense of double jeopardy is not available to defendant on retrial where the original decision was set aside on appeal. Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 1968 Tenn. LEXIS 521 (1968).

Where defendant who had received a total of thirty years on two convictions for armed robbery received a total of forty years upon a second conviction for the same offenses after his first conviction was set aside as void on his habeas corpus petition, the longer sentences upon the second conviction were not precluded by Tenn. Const. art. I, § 10. Rivera v. State, 1 Tenn. Crim. App. 395, 443 S.W.2d 675, 1969 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1969).

Where defendant's first conviction was set aside as null and void upon his habeas corpus petition he was not placed in double jeopardy by a second trial for the same offenses. Rivera v. State, 1 Tenn. Crim. App. 395, 443 S.W.2d 675, 1969 Tenn. Crim. App. LEXIS 330 (Tenn. Crim. App. 1969).

Where a defendant entered a plea of guilty he was not placed in jeopardy where the trial court rather than impaneling a jury to fix punishment granted the state's motion to nolle prosequi the case it not being the plea itself but the impaneling and swearing of a jury to fix the punishment that amounts to jeopardy. State v. Sluder, 493 S.W.2d 467, 1973 Tenn. LEXIS 505 (Tenn. 1973).

A proceeding in a municipal court for the imposition of a fine upon a person allegedly violating a city ordinance is criminal rather than civil in substance since it seeks punishment to vindicate public justice and therefore constitutes jeopardy under the double jeopardy clauses of the Tennessee and federal constitutions so that the alleged offender whether acquitted or convicted cannot be tried for the same offense in a state trial court of general jurisdiction over the timely objection of the defendant. Metropolitan Government of Nashville & Davidson County v. Miles, 524 S.W.2d 656, 1975 Tenn. LEXIS 674 (Tenn. 1975).

Jeopardy attaches in a nonjury trial when defendant is placed on trial on an indictment, presentment, or other charging instrument, before a court of competent jurisdiction, before a competent judge who is present and ready to sit as a trier of the facts, after a valid waiver is executed by the defendant, after entry of his plea, and after the witnesses are sworn, whether they be sworn singly or in a group. State v. Daniels, 531 S.W.2d 795, 1975 Tenn. Crim. App. LEXIS 272 (Tenn. Crim. App. 1975).

Where jury found defendant guilty of burglary and grand larceny as charged in the indictment, but in pronouncing judgment the trial judge mistakenly treated the offense of grand larceny as merged with the offense of burglary, a reversal by the court of criminal appeals on the basis of errors in the admission of evidence did not render defendant immune from trial on both burglary and grand larceny counts and constitutional provisions prohibiting double jeopardy were not violated. Jones v. State, 569 S.W.2d 462, 1978 Tenn. LEXIS 626 (Tenn. 1978).

Where trial court reserved sentence and judgment pending termination of defendant's drug addiction therapy, intending to impose a sentence of five to 10 years if he successfully completed the program (seven to 10 years if he did not), and mistakenly sentenced defendant to four to 10 years after he completed the drug program, trial court could not increase sentence after sentence had been partially executed. Tinker v. State, 579 S.W.2d 905, 1979 Tenn. Crim. App. LEXIS 246 (Tenn. Crim. App. 1979).

Jeopardy attaches once a jury is impaneled and sworn in a court having jurisdiction. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

A second trial did not constitute double jeopardy where the trial judge improperly excluded prosecution evidence that would show sufficiency; in the case before the court, the trial judge improperly excluded the crucial evidence and inasmuch as the former opinion became the law of the case, the trial judge did not err in allowing the case to be retried. State v. Duffel, 665 S.W.2d 402, 1983 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. 1983).

Where state law provides forfeiture is action in rem, burden of proof is by preponderance of evidence, and statutory criminal penalties are in addition to forfeiture, such proceedings are civil and do not constitute violation of double jeopardy. Stuart v. State Department of Safety, 963 S.W.2d 28, 1998 Tenn. LEXIS 96 (Tenn. 1998).

Although defendant was detained for three days prior to his release on bond, jeopardy did not attach where the defendant's detention was not punitive in nature. State v. Johnson, 980 S.W.2d 414, 1998 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. 1998).

Not guilty verdicts erroneously reported by the jury coupled with the discharge of the jury concluded the defendant's jeopardy and her subsequent convictions violated double jeopardy and due process protections. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

In nonjury proceedings, jeopardy attaches when the first witness testifies. Ahern v. Ahern, 15 S.W.3d 73, 2000 Tenn. LEXIS 137 (Tenn. 2000).

When a conviction is reversed for insufficient evidence, the guarantee against double jeopardy mandates dismissal; but when a conviction is reversed on appeal for trial errors, the guarantee against double jeopardy generally does not preclude a retrial of the defendant. State v. Howard, 30 S.W.3d 271, 2000 Tenn. LEXIS 383 (Tenn. 2000).

Neither the failure of a jury to reach a verdict nor a trial court's declaration of a mistrial following the hung jury is an event that terminates the original jeopardy. State v. Shropshire, 45 S.W.3d 64, 2000 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. 2000).

Where the jury in the first trial failed to reach a verdict as to two counts, original jeopardy never terminated on either of those counts until the jury's verdict in the second trial. State v. Shropshire, 45 S.W.3d 64, 2000 Tenn. Crim. App. LEXIS 946 (Tenn. Crim. App. 2000).

Constitutional provisions against double jeopardy required that the criminal contempt charges against defendant be dismissed where the evidence was insufficient to support the convictions for criminal contempt. Cottingham v. Cottingham, 193 S.W.3d 531, 2006 Tenn. LEXIS 442 (Tenn. 2006).

Because the jury was impaneled and sworn, and none of the exceptions to double jeopardy were present, the State and federal double jeopardy prohibitions precluded retrial. State v. Hammack, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Mar. 31, 2016).

10. —Juvenile Proceedings.

Defendant was not placed in jeopardy in juvenile proceeding in which it was determined that statutory grounds had been established to transfer defendant for trial as adult. Proctor v. State, 868 S.W.2d 669, 1992 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. 1992).

11. —Defective Indictment.

A conviction or acquittal upon an insufficient indictment, without judgment thereon, is no bar to a second indictment and prosecution. State v. Norvell, 10 Tenn. 24, 1820 Tenn. LEXIS 6 (1820); Hite v. State, 17 Tenn. 357, 1836 Tenn. LEXIS 63 (1836).

Entry of a nolle prosequi because the indictment is discovered to be defective after the jury is sworn and testimony heard does not constitute a legal jeopardy barring another prosecution under another valid indictment. Walton v. State, 35 Tenn. 687, 1856 Tenn. LEXIS 44 (1856); State v. Connor, 45 Tenn. 311, 1868 Tenn. LEXIS 13 (1868); State v. Thurston, 50 Tenn. 67, 1870 Tenn. LEXIS 236 (1870).

If the accused be acquitted upon ground of material variance between indictment and proof he cannot plead the acquittal as a bar for he has never been in jeopardy and when tried on a new indictment the crime alleged is not the same crime as in the former indictment. Young v. State, 185 Tenn. 596, 206 S.W.2d 805, 1947 Tenn. LEXIS 361 (1947).

The effect of a material variance between the allegations of the indictment and the proof is to entitle the accused to an acquittal on the particular indictment but he is still liable to be tried for his crime. State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491, 1970 Tenn. LEXIS 395 (1970).

Where in prosecution for armed robbery verdict was directed in favor of defendants because of fatal variation between indictment and proof in that indictment alleged robbery by use of pistol and proof showed robbery by use of .22 caliber rifle, reindictment charging armed robbery by use of rifle was not barred by former jeopardy. State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491, 1970 Tenn. LEXIS 395 (1970).

Defendants were not in jeopardy when an indictment was dismissed because the state was not ready for trial when no jury had been impaneled or sworn and no evidence was presented. Delay v. State, 563 S.W.2d 905, 1977 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. 1977).

12. —Forfeiture Proceedings.

Where legislature intends that forfeiture be civil in rem proceeding, it does not violate constitutional double jeopardy protections. Stuart v. State Department of Safety, 963 S.W.2d 28, 1998 Tenn. LEXIS 96 (Tenn. 1998).

Where forfeiture serves remedial goal of discouraging use of property for illegal purposes, abates a nuisance by ensuring persons do not profit from illegal acts, and acts as deterrent, there is no punishment for purposes of double jeopardy. Stuart v. State Department of Safety, 963 S.W.2d 28, 1998 Tenn. LEXIS 96 (Tenn. 1998).

Because the general assembly intended forfeiture of automobile seized incident to a lawful arrest to be a civil in rem proceeding, such forfeiture does not impose “punishment” for the purposes of the double jeopardy clause. State v. Blackmon, 984 S.W.2d 589, 1998 Tenn. LEXIS 747 (Tenn. 1998).

13. —Guilty Plea.

Jeopardy does not attach at a hearing on a guilty plea until the plea is unconditionally accepted. State v. Todd, 654 S.W.2d 379, 1983 Tenn. LEXIS 687 (Tenn. 1983).

A trial court may set aside a guilty plea, even after the trial court has accepted the plea, and not violate double jeopardy when: (1) The trial court's acceptance of the plea is premised on an incorrect understanding of the plea's terms; and (2) That misunderstanding is reflected in the record. State v. Burris, 40 S.W.3d 520, 2000 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. 2000).

14. —Discharge of Juror or Jury.

For the rule that the challenge of jurors for want of qualification, propter defectum, must be made before the jury is sworn, see McClure v. State, 9 Tenn. 206, 1829 Tenn. LEXIS 43 (1829); Gillespie v. State, 16 Tenn. 507, 1835 Tenn. LEXIS 115 (1835); Ward v. State, 20 Tenn. 253, 1839 Tenn. LEXIS 44 (1839); State v. Connor, 45 Tenn. 311, 1868 Tenn. LEXIS 13 (1868); Draper v. State, 63 Tenn. 246, 1874 Tenn. LEXIS 239 (1874); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898); Givens v. State, 103 Tenn. 648, 55 S.W. 1107, 1899 Tenn. LEXIS 143 (1899); Goad v. State, 106 Tenn. 175, 61 S.W. 79, 1900 Tenn. LEXIS 146 (1900); Tomasson v. State, 112 Tenn. 596, 79 S.W. 802, 1903 Tenn. LEXIS 128 (1903); Walker v. State, 118 Tenn. 375, 99 S.W. 366, 1906 Tenn. LEXIS 104 (1906).

Challenge of jurors, propter defectum, must be made before the jury is sworn, and a discharge of jurors upon the attorney general's challenge of them, propter defectum, after the jury is sworn, operates as a discharge of the accused. Ward v. State, 20 Tenn. 253, 1839 Tenn. LEXIS 44 (1839); State v. Connor, 45 Tenn. 311, 1868 Tenn. LEXIS 13 (1868); Draper v. State, 63 Tenn. 246, 1874 Tenn. LEXIS 239 (1874); Cartwright v. State, 80 Tenn. 620, 1883 Tenn. LEXIS 214 (1883); Hamilton v. State, 101 Tenn. 417, 47 S.W. 695, 1898 Tenn. LEXIS 83 (1898); Tomasson v. State, 112 Tenn. 596, 79 S.W. 802, 1903 Tenn. LEXIS 128 (1903); Walker v. State, 118 Tenn. 375, 99 S.W. 366, 1906 Tenn. LEXIS 104 (1906).

The accused was not twice put in jeopardy under Tenn. Const. art. I, § 10 and the U.S. Const. amend. 5, where the court discharged the juror because he stated that he would not punish anyone for crime, and another juror was selected and the accused tried without his consent. Green v. State, 147 Tenn. 299, 247 S.W. 84, 1922 Tenn. LEXIS 42, 28 A.L.R. 842 (1923).

Certain conditions which will warrant the discharge of the jury if arising during the course of trial and which if appearing of record will bar a plea of former jeopardy are consent of the prisoner; illness of one of the jurors, the prisoner or the court; absence of a juryman; impossibility of jurors agreeing on a verdict; some untold accident that renders the verdict impossible; and extreme and overwhelming physical or legal necessity. Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 1947 Tenn. LEXIS 323 (1947); State v. Malouf, 199 Tenn. 496, 287 S.W.2d 79, 1956 Tenn. LEXIS 347 (1956); Jones v. State, 218 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 574 (1966), rehearing denied, 218 Tenn. 378, 281 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 575 (1966).

The rule that when the accused is put on trial in a court of competent jurisdiction upon a sufficient indictment or information before a jury legally impaneled and sworn, the discharge of the jury without consent of the accused is equivalent to an acquittal of that charge is not an implicit provision of the constitution but is really only a rule adopted by the court. State v. Malouf, 199 Tenn. 496, 287 S.W.2d 79, 1956 Tenn. LEXIS 347 (1956).

Granting of mistrial after case was submitted to jury on ground that one juror was brother of a defense character witness and another juror was a sister-in-law of another defense character witness was not an abuse of discretion and retrial of defendant did not amount to double jeopardy. Jones v. State, 218 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 574 (1966), rehearing denied, 218 Tenn. 378, 281 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 575 (1966).

Once a jury has been sworn to try the issues, a juror or jurors or the whole panel cannot be discharged and a mistrial declared without discharging the defendant except in cases of manifest necessity where prejudice to either the defendant or the state is found. Jones v. State, 218 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 574 (1966), rehearing denied, 218 Tenn. 378, 281 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 575 (1966).

The court may discharge the jury without working an acquittal of the accused in any case where the ends of justice under the circumstances would otherwise be defeated or where the circumstances show that a fair and unbiased trial could not be had or where any unforeseen emergency, contingency or happening after the empaneling of the jury prevents the trial from going forward according to orderly and established legal procedure. Jones v. State, 218 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 574 (1966), rehearing denied, 218 Tenn. 378, 281 Tenn. 378, 403 S.W.2d 750, 1966 Tenn. LEXIS 575 (1966).

Trial court erred in reassembling the jury and permitting the entry of guilty verdicts after the jury had reported not guilty verdicts and been discharged; although very little time had elapsed, the jurors had been verbally dismissed and had exited the courtroom and entered an area occupied by members of the public, and such circumstances demonstrate a separation of the jurors from the trial court to such a degree that outside contacts may have occurred. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

15. —Directed Verdict.

If the trial judge direct the jury to acquit a prisoner on any ground, however fallacious, and it is done accordingly, he is entitled to the benefit of the verdict. Mikels v. State, 50 Tenn. 321, 1871 Tenn. LEXIS 104 (1871), the dissenting opinion, citing State v. Norvell, 10 Tenn. 24, 1820 Tenn. LEXIS 6 (1820), and Slaughter v. State, 25 Tenn. 410, 1846 Tenn. LEXIS 4 (1846).

After one accused of a felony has been acquitted under a directed verdict, the state is without right to appeal or raise question of the propriety of such action by the court. State v. Vincent, 147 Tenn. 458, 249 S.W. 376, 1922 Tenn. LEXIS 58 (1922).

16. —Postconviction Review.

Defendant's petition for post-conviction relief in alleging ineffective assistance of counsel was properly denied because trial counsel was not ineffective for failing to call defendant's wife as a witness at trial as defendant did not call his own wife to testify at the post-conviction hearing; the record did not preponderate against the post-conviction court's conclusion that trial counsel exercised reasonable judgment when deciding not to call defendant's wife as a witness because she revealed that she actually encouraged defendant to skip his court appearance; trial counsel thought the wife's testimony would be damaging to the case; and defendant did not prove that he was somehow forced to testify solely because his wife did not. Lynch v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Aug. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 876 (Tenn. Nov. 16, 2016).

17. —Dismissal or Mistrial.

Dismissal for lack of venue was not a ruling on the sufficiency of the evidence or on the merits of the case and did not amount to an acquittal. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

Retrial may be permitted if the termination of the proceedings was caused by error or misconduct of the defense counsel and there was no feasible alternative to halting the proceedings. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

Retrial is permissible if the defendant through his counsel actively sought or consented to premature termination of the proceedings. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

Where although defense counsel did not actually seek dismissal upon grounds of improper venue, he did in fact seek dismissal upon other grounds which would not have involved guilt or innocence and which would not have prevented a retrial had it been granted at a minimum, he could not be considered to have objected to the erroneous action of the court in dismissing for lack of venue and thus retrial of defendant was not barred by double jeopardy. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

Retrial of case after a dismissal at the conclusion of the state's proof would place the defendant twice in jeopardy. State v. Adkins, 619 S.W.2d 147, 1981 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. 1981).

The double jeopardy clauses of the state and federal constitutions did not preclude retrial of the defendant after a mistrial was declared at an earlier trial where the jury could not reach a verdict on defendant's guilt of lesser offenses included in the crime for which he was indicted. State v. Seagroves, 691 S.W.2d 537, 1985 Tenn. LEXIS 597 (Tenn. 1985).

Unless the trial court finds that the prosecutor intended his misconduct to provoke the defendant into requesting a mistrial, the defendant may be retried following the granting of the defendant's motion for a mistrial. State v. Tucker, 728 S.W.2d 27, 1986 Tenn. Crim. App. LEXIS 2855 (Tenn. Crim. App. 1986).

There are exceptions to the prohibition against double jeopardy; for instance, retrial may be permitted if the defendant consented to the termination of the proceeding at issue, or where there is a “manifest necessity” for the declaration of the mistrial, regardless of the defendant's consent or objection. State v. Mounce, 859 S.W.2d 319, 1993 Tenn. LEXIS 289 (Tenn. 1993).

Where the jury returned a verdict which obviously reflected confusion, 12 jurors voting for a fine, but only eight voting for guilty, the court erred in summarily declaring a mistrial sua sponte, and should have instructed them further and allowed them to deliberate further to reach a consistent verdict. Thus the mistrial was not one of “manifest necessity,” and the constitutional prohibition of double jeopardy barred a retrial of defendant. State v. Mounce, 859 S.W.2d 319, 1993 Tenn. LEXIS 289 (Tenn. 1993).

Where evidence presented at jury-out hearing established a “distinct possibility” that defense counsel had encouraged one of the state's primary witnesses to ignore his plea agreement to testify truthfully, manifest necessity for the declaration of a mistrial existed. State v. Smith, 871 S.W.2d 667, 1994 Tenn. LEXIS 27 (Tenn. 1994).

Where some matter has occurred which would prevent the proceeding of a trial without manifest injustice to the defendant or the public, a mistrial may be declared, and a claim of double jeopardy would not prevail on a subsequent trial. State v. Carter, 890 S.W.2d 449, 1994 Tenn. Crim. App. LEXIS 425 (Tenn. Crim. App. 1994).

When a mistrial is declared because of a manifest necessity, double jeopardy is not violated when the defendant is retried even if he objected to the mistrial. Ahern v. Ahern, 15 S.W.3d 73, 2000 Tenn. LEXIS 137 (Tenn. 2000).

Tennessee has expressly adopted the Kennedy standard under Tenn. Const. art. I, § 10 for determining whether prosecutorial misconduct will bar a retrial; only when it is shown that the prosecutor is “goading” the defense into moving for a mistrial will double jeopardy bar a retrial; in order to determine the prosecutor's intent, the trial court should look to the circumstances surrounding the prosecutor at the time; the prosecutor's explanation of the prosecutor's intent may be given some credence in light of the minimum requirements expected of all lawyers. State v. Huskey, 66 S.W.3d 905, 2001 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 844 (Tenn. Dec. 10, 2001).

Double jeopardy barred defendant's retrial because the court discharged the jury without determining whether the jury was hopelessly deadlocked, without finding that termination of the trial was manifestly necessary, and without actually declaring a mistrial; rather than clarifying the unorthodox verdicts, the court polled the jury, accepted the verdicts as rendered, and dismissed the jury. State v. Houston, 328 S.W.3d 867, 2010 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 3, 2010).

18. Punitive Damages.

Defendant's constitutionally mandated protection from double jeopardy was not violated when the court imposed punitive damages in civil wrongful death action against defendant who had previously been criminally punished for the same occurrence. Coakley v. Daniels, 840 S.W.2d 367, 1992 Tenn. App. LEXIS 217 (Tenn. Ct. App. 1992).

19. Acquittal.

Verdict for a lower offense is an acquittal of the higher offense charged in the indictment. Brooks v. State, 22 Tenn. 25, 1842 Tenn. LEXIS 12 (1842); Greer v. State, 62 Tenn. 321, 1874 Tenn. LEXIS 50 (1874); Johnson v. State, 79 Tenn. 47, 1883 Tenn. LEXIS 11 (1883)Prisoner acquitted of the offense charged, but convicted of an inferior offense included in that charged, may, upon a new trial being granted, be retried for the latter offense on the same indictmentSlaughter v. State, 25 Tenn. 410, 1846 Tenn. LEXIS 4 (1846).

A person indicted for and acquitted of a misdemeanor, which, upon the trial, appears to be a felony, cannot afterwards be indicted and prosecuted for the felony. Fiddler v. State, 26 Tenn. 508, 1847 Tenn. LEXIS 5 (1847); State v. Chaffin, 32 Tenn. 493, 1852 Tenn. LEXIS 102 (1852).

Where the accused is indicted in the wrong county, and is acquitted for that reason, he cannot be again indicted and put to a second trial for the same offense in the proper county. Armstrong v. State, 41 Tenn. 338, 1860 Tenn. LEXIS 72 (1860).

A special verdict upon a single count of indictment is given the effect of an acquittal upon the other counts to which the jury did not respond. Briggs v. State, 573 S.W.2d 157, 1978 Tenn. LEXIS 667 (Tenn. 1978), sub nom. — S.W.2d —, 1997 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. Aug. 15, 1997).

Any ruling that in substance amounts to an acquittal triggers the protections against double jeopardy and bars retrial. State v. Knight, 616 S.W.2d 593, 1981 Tenn. LEXIS 443 (Tenn. 1981).

When the trial court entered a judgment of acquittal on a prior offense at the conclusion of the state's evidence in a sentence enhancement hearing, double jeopardy precluded an appeal by the state. State v. Hulse, 785 S.W.2d 373, 1989 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. 1989).

Once jeopardy attaches, the remedies available to the state on appeal are governed by the double jeopardy clause; the effect is absolute and not susceptible to judicial examination. The state simply cannot appeal when the evidence is insufficient. This is true even if a pre-verdict acquittal was entered for erroneous reasons. State v. Hulse, 785 S.W.2d 373, 1989 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. 1989).

There is no difference in a reversal on appeal for insufficient evidence and a verdict of acquittal based on insufficient evidence. State v. Williford, 824 S.W.2d 553, 1991 Tenn. Crim. App. LEXIS 557 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 124 (Tenn. Jan. 27, 1992).

In defendant's criminal trial, the appellate court was unwilling to say that the mere prolonging of the prosecution for felony murder transformed it into a subsequent prosecution; the three counts at issue were launched together in the stream of the prosecution, and the appellate court did not deem the acquittal on the attempt to commit first-degree murder as a prior suit for collateral estoppel purposes, and thus continued prosecution on the felony murder count in the second trial was not barred. State v. Thompson, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. Feb. 21, 2008), aff'd in part, set aside, 285 S.W.3d 840, 2009 Tenn. LEXIS 309 (Tenn. 2009).

20. Unconstitutional Statute.

A trial, conviction, and punishment under an unconstitutional statute estops the state to demand a second trial, conviction, and punishment under a valid statute for the same identical offense; for this would be putting the offender twice in jeopardy, and twice inflicting punishment for the same offense, as much as if the first trial, conviction, and punishment had been under a constitutional and valid law. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848).

Where the child abuse murder statute under which defendant was convicted, former § 39-2-202(a)(2) was declared unconstitutional, and evidence presented at trial would have supported conviction of lesser included offenses, the state and federal constitutions' prohibitions against double jeopardy did not preclude the state from retrying defendant on the lesser included offenses. State v. Maupin, 859 S.W.2d 313, 1993 Tenn. LEXIS 288 (Tenn. 1993).

21. One Act as Offense Against More Than One Government.

Where the same act is a violation of the laws of the state and also of the laws of the United States, the offender is subject to trial and punishment by both governments. Sizemore v. State, 40 Tenn. 26, 1859 Tenn. LEXIS 9 (1859); State v. Rankin, 44 Tenn. 145, 1867 Tenn. LEXIS 24 (1867); Pearson v. State, 1 Shan. 311 (1874).

Where the same act is a violation of the laws of the state and also of the ordinances of a city, the offender is subject to trial and punishment by both. Greenwood v. State, 65 Tenn. 567, 1873 Tenn. LEXIS 410, 32 Am. Rep. 539 (1873); State v. Mason, 71 Tenn. 649, 1879 Tenn. LEXIS 127 (1879); State ex rel. Karr v. Taxing Dist. of Shelby County, 84 Tenn. 240, 1886 Tenn. LEXIS 90 (1886); O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449, 1908 Tenn. LEXIS 36, 127 Am. St. Rep. 1014 (1908).

The state and federal laws as to intoxicating liquors emanate from different sovereignties denouncing different offenses and the same act may be an offense against the two governments and punishable by both; therefore, a plea of former jeopardy in the tribunal of one government is not available in a tribunal of the other government. State v. Rhodes, 146 Tenn. 398, 242 S.W. 642, 1922 Tenn. LEXIS 5, 22 A.L.R. 1544 (1922).

The trial of defendant in federal court for robbery of a federally insured bank and a trial in the state court for the same robbery did not constitute double jeopardy. Lavon v. State, 586 S.W.2d 112, 1979 Tenn. LEXIS 493, 6 A.L.R.4th 794 (Tenn. 1979).

Indictment and conviction of bank robbery at the federal level did not preclude indictment and conviction of murder pursuant to the same robbery at state level when federal indictment and conviction did not include a separate offense of murder. Brady v. State, 584 S.W.2d 245, 1979 Tenn. Crim. App. LEXIS 264 (Tenn. Crim. App. 1979).

The doctrine of dual sovereignty still prevails in Tennessee. State v. Straw, 626 S.W.2d 286, 1981 Tenn. Crim. App. LEXIS 388 (Tenn. Crim. App. 1981).

Successive prosecutions by different sovereigns for the same offense do not subject a defendant to double jeopardy. State v. Straw, 626 S.W.2d 286, 1981 Tenn. Crim. App. LEXIS 388 (Tenn. Crim. App. 1981).

Successive prosecutions by two states for the same conduct are not barred by the double jeopardy clause of U.S. Const. amend. 5. State v. Chitwood, 735 S.W.2d 471, 1987 Tenn. Crim. App. LEXIS 2579 (Tenn. Crim. App. 1987).

22. Pleading Former Jeopardy.

If the defendant pleads a former acquittal, he must not only state the former indictment which states the charge, and his acquittal thereon, but must also aver that he is the same person in the aforesaid indictment named and thereof acquitted, and not another or different person; and must also aver that the offense, stating it, in the indictment aforesaid pleaded, specified, and supposed to have been done by him, is the same identical and individual offense as in the indictment to which he is now pleading is supposed and alleged to have been done and committed by him, and not other or different. State v. Pearce, 7 Tenn. 65, 1823 Tenn. LEXIS 4 (1823); State v. Stephens, 127 Tenn. 282, 154 S.W. 1149, 1912 Tenn. LEXIS 27 (1913).

A plea of former acquittal, identifying the cases by averment of extrinsic facts, presents a question of fact for a jury, but an issue as to the record under a plea of nul tiel record to such plea of former acquittal is to be tried by the court. Hite v. State, 17 Tenn. 357, 1836 Tenn. LEXIS 63 (1836); Coulter v. Davis, 81 Tenn. 451, 1884 Tenn. LEXIS 57 (1884).

When a former acquittal is pleaded, all variances not inconsistent with the validity of both proceedings may be shown to be merely technical. Hite v. State, 17 Tenn. 357, 1836 Tenn. LEXIS 63 (1836); Harris v. State, 71 Tenn. 324, 1879 Tenn. LEXIS 84 (1879).

A plea of former conviction in a court of record must be supported by a conviction of record. Slaughter v. State, 25 Tenn. 410, 1846 Tenn. LEXIS 4 (1846); Jacobs v. State, 72 Tenn. 196, 1879 Tenn. LEXIS 19 (1879)The record must be produced, when the issue on the plea comes to be triedHite v. State, 17 Tenn. 357, 1836 Tenn. LEXIS 63 (1836).

The essential element of a plea of double jeopardy is that the record should disclose that the defendant was lawfully convicted or acquitted of the offense for which he was called upon to answer. Bell v. State, 220 Tenn. 685, 423 S.W.2d 482, 1968 Tenn. LEXIS 536 (1968).

23. —Jurisdiction Requisite to Plea of Former Conviction.

A plea of former conviction should only be good when both courts have jurisdiction of the offense in the trial of which the plea is offered. Bowman v. State, 160 Tenn. 305, 23 S.W.2d 658, 1929 Tenn. LEXIS 106 (1930).

24. —Time of Pleading Former Jeopardy.

Where defendant by motion sought to have jury reconvened after mistrial was entered and the jury discharged because a verdict could not be reached asserting that the jury had in fact reached a verdict of not guilty as to him although not as to other defendants tried at the same time, defendant was not entitled to raise the contention that a second trial would amount to double jeopardy at that time and such contention could not be raised until such time as defendant was actually placed on trial a second time. Clark v. State, 170 Tenn. 494, 97 S.W.2d 644, 1936 Tenn. LEXIS 21 (1936).

25. Review.

Neither a writ of error, nor an appeal in the nature of a writ of error, will lie on behalf of the state after a verdict of acquittal in a criminal case, because a reversal putting the defendant on a second trial after his acquittal would be putting him twice in jeopardy for the same offense. The acquittal should be a shield against putting the accused twice in jeopardy. State v. Reynolds, 5 Tenn. 109, 5 Tenn. 110, 1817 Tenn. LEXIS 66 (1817); State v. Solomons, 14 Tenn. 359, 14 Tenn. 360, 1834 Tenn. LEXIS 93 (Tenn. Mar. 1834); Campbell v. State, 17 Tenn. 333, 1836 Tenn. LEXIS 57 (1836); State v. Curle, 19 Tenn. 190, 1838 Tenn. LEXIS 45 (1838); Slaughter v. State, 25 Tenn. 410, 1846 Tenn. LEXIS 4 (1846); Esmon v. State, 31 Tenn. 14, 1851 Tenn. LEXIS 3 (1851); Greenwood v. State, 65 Tenn. 567, 1873 Tenn. LEXIS 410, 32 Am. Rep. 539 (1873); State v. Garibaldi, 74 Tenn. 632, 1881 Tenn. LEXIS 186 (1881); United States v. Sanges, 144 U.S. 310, 12 S. Ct. 609, 36 L. Ed. 445, 1892 U.S. LEXIS 2081 (U.S. Apr. 4, 1892).

Defendant acquitted upon one count, and convicted upon another, cannot, after a new trial granted in general terms, be again put in jeopardy upon that count upon which he was acquitted. Esmon v. State, 31 Tenn. 14, 1851 Tenn. LEXIS 3 (1851); State v. Cameron, 50 Tenn. 78, 1871 Tenn. LEXIS 67 (1871).

Prior to second trial a writ of certiorari is proper to review a contention of double jeopardy where the entire record of the first trial is before the reviewing court. Whitwell v. State, 520 S.W.2d 338, 1975 Tenn. LEXIS 701 (Tenn. 1975).

Constitutional principles of double jeopardy required a reversal of trial court's decision to conduct a second trial. State v. Williams, 827 S.W.2d 804, 1991 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. 1991).

A reversal because of insufficient evidence corroborating an accomplice's testimony is not a trial error but relates to the sufficiency of the evidence and is a defect involving the guilt or innocence of a defendant. State v. Williford, 824 S.W.2d 553, 1991 Tenn. Crim. App. LEXIS 557 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 124 (Tenn. Jan. 27, 1992).

26. Habitual Criminal Proceeding.

In habitual criminal trial, consideration of convictions prior to the date of previous habitual criminal proceeding did not result in double jeopardy. Frazier v. State, 566 S.W.2d 545, 1977 Tenn. Crim. App. LEXIS 276 (Tenn. Crim. App. 1977).

The judgment of the trial court in a second case finding defendant to be a habitual criminal and imposing a life sentence did not constitute double jeopardy although he had been found not to be a habitual criminal at the first trial; on an unrelated charge, under a count which recited the same prior convictions proved at the second trial as the basis for the jury's determination of habitual criminality, since the action of the first jury regarding the recidivist count did not operate to “acquit” the defendant of the underlying convictions recited in that count, and thus it did not bar the enumeration of those convictions in any subsequent recidivist count. Glasscock v. State, 570 S.W.2d 354, 1978 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1978), cert. denied, Glasscock v. Tennessee, 441 U.S. 943, 99 S. Ct. 2160, 60 L. Ed. 2d 1044, 1979 U.S. LEXIS 1817 (1979).

The use of prior convictions to enhance the punishment for a subsequent felony does not violate the double jeopardy provisions of either Tenn. Const. art. I, § 10 or the U.S. Const. amend. 5. State v. Dobbins, 754 S.W.2d 637, 1988 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1988).

27. Resentencing.

In resentencing a defendant, there is no double punishment since defendant is entitled to full credit for all time served on the conviction offense. Harris v. State, 576 S.W.2d 588, 1978 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1978).

A person may be resentenced; and even a more severe sentence imposed at a second trial does not invalidate the conviction. Harris v. State, 576 S.W.2d 588, 1978 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. 1978).

A defendant sentenced under the Tennessee Community Corrections Act has no legitimate expectation of finality in the severity of the sentence, but is placed on notice by the Act itself that upon revocation of the sentence due to the conduct of the defendant, a greater sentence may be imposed. This being so, the decision to resentence a defendant to a sentence greater than his original sentence does not subject the defendant to multiple punishments for the same offense. State v. Griffith, 787 S.W.2d 340, 1990 Tenn. LEXIS 156 (Tenn. 1990).

When an appellate court in a capital case concluded that the sole aggravating circumstance found by the sentencing jury was legally invalid and set aside the sentence of death, remand for resentencing was appropriate since resentencing was not prohibited by either the state or federal constitutional provisions against double jeopardy. State v. Harris, 919 S.W.2d 323, 1996 Tenn. LEXIS 237 (Tenn. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. LEXIS 381 (Tenn. June 10, 1996).

28. Sentencing.

Any prejudice to defendant by conviction in state court after conviction in federal court of a substantially identical offense was minimized, as far as possible, by judge's order that sentence was to be served concurrently. Dykes v. State, 589 S.W.2d 384, 1979 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. 1979).

The sentencing phase of the trial is concerned only with the punishment and does not in any sense constitute a second trial for the same offense or create a separate and additional offense and thus does not violate the double jeopardy prohibition. State v. Austin, 618 S.W.2d 738, 1981 Tenn. LEXIS 396 (Tenn. 1981), cert. denied, Austin v. Tennessee, 454 U.S. 1128, 102 S. Ct. 980, 71 L. Ed. 2d 116, 102 S. Ct. 981, 71 L. Ed. 2d 117, 1981 U.S. LEXIS 3011 (1981).

The double jeopardy guarantees under U.S. Const. amend. 5 and Tenn. Const. art. I, § 10 prohibit a second prosecution for the same offense after conviction and multiple punishments for the same offense. State v. Richardson, 875 S.W.2d 671, 1993 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. 1993).

29. Merger of Convictions.

Even though defendant was initially convicted of both premeditated first degree murder and felony murder, where the trial court ultimately merged the convictions into a single conviction for premeditated first degree murder and the proof supported a conviction for either offense, the defendant was not subjected to double jeopardy. State v. Zirkle, 910 S.W.2d 874, 1995 Tenn. Crim. App. LEXIS 103 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 230 (Tenn. Crim. App. Mar. 21, 1995), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 481 (Tenn. Aug. 28, 1995), dismissed, Zirkle v. Carlton, — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 123960 (E.D. Tenn. June 12, 2013).

Separate convictions for especially aggravated kidnapping and facilitation of first degree murder did not violate the double jeopardy clause of the Tennessee constitution. State v. Jackson, 52 S.W.3d 661, 2001 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. 2001).

Although there was sufficient evidence to support defendant's convictions of two counts of child rape, attempted child rape, and aggravated sexual battery, the trial court should have merged the lesser aggravated sexual battery convictions with the child rape convictions to avoid violating the father's double jeopardy rights. State v. Rathbone, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. Apr. 16, 2008), cert. denied, Rathbone v. Tennessee, 555 U.S. 1192, 129 S. Ct. 1360, 173 L. Ed. 2d 622, 2009 U.S. LEXIS 1624 (U.S. 2009).

There was no double jeopardy violation from defendant's convictions for criminal attempt to commit second degree murder and aggravated assault because, even thought the offenses arose from a single incident in which defendant stabbed the unarmed victim multiple times, the elements of the offenses were distinct. State v. Beard, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 978 (Tenn. Crim. App. Oct. 28, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 237 (Tenn. Mar. 12, 2015).

Defendant's reckless homicide, T.C.A. § 39-13-215, conviction was merged into his conviction for aggravated child abuse, T.C.A. § 39-15-402(b), because the evidence supporting defendant's convictions was identical as it related to defendant's criminal conduct: both of his convictions rested on the same act, namely the impact he caused between the victim's head and the stairway wall in his residence. Thus defendant's double jeopardy rights were violated. State v. Watkins, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 190 (Tenn. Crim. App. Mar. 1, 2010), aff'd in part, rev'd in part, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012).

Defendant's two aggravated assault convictions were merged because assault committed by causing serious bodily injury and assault committed by the use or display of a deadly weapon were two ways to commit the same offense of aggravated assault. Even though the elements of the two types of aggravated assault were distinct, there was still only one assault and one victim. State v. Beard, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 978 (Tenn. Crim. App. Oct. 28, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 237 (Tenn. Mar. 12, 2015).

Merger of defendant's dual convictions of rape of a child was appropriate because the convictions violated double jeopardy principles as both counts of child rape involved defendant's and the victim's same body parts and were separated by only a few seconds. State v. Phillips, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 53 (Tenn. Crim. App. Jan. 27, 2015).

Trial court erred by failing to merge defendant's two convictions for the sale and delivery of cocaine within 1,000 feet of an elementary school and two convictions for the sale and delivery of cocaine within 1,000 feet of a recreational center into a single conviction because defendant engaged in only one sale or delivery of cocaine; the drug-free zone violation was not an essential element of the offense of the sale or delivery of cocaine; the drug-free zone violation was not a separate offense in and of itself; and the legislature did not intend to allow for multiple units of prosecution under the drug-free zone statute for a single sale of cocaine that occurred in the overlapping drug-free zones of a school and a recreational center. State v. Tate, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. May 20, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 673 (Tenn. Aug. 12, 2015).

Since the evidence to support all four convictions was the same, all offenses having occurred at the same time, during the same drug transaction, and involving the same drugs, the trial court should have merged all counts into the possession with the intent to sell in a school zone. State v. Carero, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1036 (Tenn. Crim. App. Dec. 22, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 333 (Tenn. May 5, 2016).

Trial court should have merged the offenses of theft of property between the value of $ 1,000 and $1 0,000 upon conviction and sentencing because the charged offenses were the same offense with the same elements, and the State alleged two alternative theories for the charges; because the jury convicted defendant of the same offense for the same transaction on two alternate theories, the trial court violated double jeopardy by not merging the convictions at sentencing. State v. Mooneyhan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. May 16, 2018).

Because the offense of theft was wholly incorporated into the offense of aggravated robbery, the offenses were the same under Blockburger and violated principles of double jeopardy; on remand, the judgment of conviction for theft was to be merged into a single conviction for aggravated robbery. State v. Jenkins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 856 (Tenn. Crim. App. Nov. 20, 2018).

Trial court correctly determined that it was required to sentence defendant for each conviction of aggravated assault resulting in death and criminally negligent homicide and enter two judgments of conviction, and thus defendant's claim of a double jeopardy violation failed. State v. Hodge, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 450 (Tenn. Crim. App. July 29, 2019).

Dual convictions for aggravated child abuse in two counts of the indictment violated double jeopardy principles, and the imposition of dual convictions for those offenses rose to the level of plain error, because the counts charged the same act of abuse via different modalities; the remedy was not dismissal of one of the counts or a remand for a new trial but a merger of the jury verdicts for those counts. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

Both promoting prostitution and trafficking a person for a commercial sex act require the defendant to cause the victim to perform sexual activities in exchange for something of value, and although the trafficking statute contains the additional requirement that the victim be coerced, the promoting prostitution statute does not contain an essential element that the trafficking statute does not. Any additional differences in the wording of the statutes do not constitute separate elements and defendant's convictions had to merge. State v. Ward, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 27, 2020).

30. No Double Jeopardy Violation.

Applying the Blockburger test, the court concluded that reckless homicide and aggravated child abuse were not the same offense because their elements differed; reckless homicide required proof of a killing; aggravated child abuse did not. Aggravated child abuse required proof that the victim was a “child,” that is, a person less than 18 years of age; reckless homicide had no age-based element. Therefore, defendant's dual convictions did not violate either the federal or the state constitutional double jeopardy prohibition. State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012).

Appellate court erred by holding that defendant's convictions of evading arrest, T.C.A. § 39-16-603(b), and reckless endangerment, T.C.A. § 39-13-103, violated the prohibitions against double jeopardy in the Fifth Amendment and Tenn. Const. art. I, § 10 because the crimes did not constitute the same offense nor was one a lesser included offense of the other for the purpose of the Blockburger test. Reckless endangerment did not require the State to prove any of the elements of evading arrest, reckless endangerment simply required proof of imminent danger of death or serious bodily harm to another person, evading arrest did not require the use of a deadly weapon as reckless endangerment did, and the State did not need to prove that the danger was to a person who was an innocent bystander or third party in order to prove a defendant guilty beyond a reasonable doubt of reckless endangerment. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Convictions for forgery and identity theft did not violate double jeopardy, because each offense required an element that the other did not; the conviction for forgery required a writing and the conviction for identity theft required use of personal information. State v. Webb, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App. Mar. 7, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 604 (Tenn. Aug. 15, 2012), dismissed, Webb v. Parris, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 152224 (M.D. Tenn. Oct. 28, 2014).

Although defendant's convictions for attempted voluntary manslaughter and aggravated assault arose out of the same incident, each of those offenses contained numerous elements that the other did not, and there was no evidence that the General Assembly intended to prohibit multiple punishments in circumstances such as these, and thus double jeopardy did not preclude the dual convictions. State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015).

Defendant's dual convictions of aggravated sexual battery were proper because the two counts for aggravated sexual battery involved two separate incidents of unlawful sexual contact as defendant touched the victim's buttocks with defendant's hands and touched the victim's leg with defendant's penis. Although the two offenses occurred close in time to each other, they were separated by the victim's trying to comfort defendant, the repositioning of the victim, and the vaginal penetrations of the victim. State v. Phillips, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 53 (Tenn. Crim. App. Jan. 27, 2015).

Defendant's convictions for carjacking and employing a firearm during the commission of a dangerous felony did not violate the prohibitions against double jeopardy because that a firearm was the means of accomplishing the force or intimidation for the carjacking did not transform the use of the firearm into an essential element of the carjacking. State v. Martin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 10, 2015), aff'd, 505 S.W.3d 492, 2016 Tenn. LEXIS 728 (Tenn. Oct. 14, 2016).

Defendant's firearms convictions arose out of the same act or transaction as his especially aggravated kidnapping and burglary convictions; defendant was convicted of both the especially aggravated kidnapping of one victim and possession of a firearm with intent to go armed during the kidnapping, both of these offenses contained an element that the other did not, and thus they were distinct offenses, and defendant was without relief as to his double jeopardy claim. State v. Anderson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 538 (Tenn. Crim. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 993 (Tenn. Nov. 24, 2015).

Defendant was convicted of both especially aggravated kidnapping of one victim plus employing a firearm during the commission of the kidnapping, both of the offenses contains an element that the other did not, and therefore they were distinct offenses and defendant was without relief as to his double jeopardy claim. State v. Anderson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 538 (Tenn. Crim. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 993 (Tenn. Nov. 24, 2015).

Defendant convicted of both aggravated burglary of the habitation of one victim and employing a firearm during the commission of the burglary; the jury was properly instructed, both of these offenses contained an element that the other did not, and they were thus distinct offenses and defendant was without relief as to his double jeopardy claim. State v. Anderson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 538 (Tenn. Crim. App. June 29, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 993 (Tenn. Nov. 24, 2015).

When defendant was initially indicted for conspiracy to commit first degree premeditated murder, defendant's re-indictment for the charge after a mistrial and dismissal of charges arising from the same criminal incident did not twice put defendant in jeopardy for the same crime because the State elected not to prosecute defendant for the charge at defendant's first trial, so jeopardy did not attach as to that charge. State v. Blair, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 549 (Tenn. Crim. App. July 9, 2015).

Defendant's convictions of aggravated robbery and carjacking did not violate double jeopardy because carjacking required the taking of a motor vehicle while robbery could occur with the taking of any property. State v. Logan, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 601 (Tenn. Crim. App. July 27, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 963 (Tenn. Nov. 24, 2015).

Defendant was convicted of an attempt to commit the first degree premeditated murder of one officer and of an attempt to commit the first degree premeditated murder of another officer; although there was a single act involved, there were two named victims, both of whom were in the same small mudroom in which the defendant fired his close-range shotgun blast, and thus defendant's convictions and sentences did not violate the prohibition against double jeopardy. State v. Graves, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 729 (Tenn. Crim. App. Sept. 8, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 39 (Tenn. Jan. 14, 2016).

Although the prosecutor engaged in misconduct, defendant had not shown that her case fell within the narrow exception to the general rule that double jeopardy did not bar retrial after a mistrial was granted; no clear and unequivocal rule of law was breached, no substantial right of defendant's was adversely affected, and the issue was not required to be considered in order to do substantial justice, and plain error relief was not required. State v. Woods, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 820 (Tenn. Crim. App. Oct. 7, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 258 (Tenn. Mar. 24, 2016).

Retrial for delivery of a controlled substance did not violate double jeopardy under the United States and Tennessee Constitutions after defendant was originally acquitted of the sale of a controlled substance because the sale and delivery of a controlled substance were separate offenses; moreover, the State cured an issue relating to the simultaneous prosecution for delivery of a controlled substance and casual exchange by voluntarily dismissing the charges of casual exchange before trial, and the State dismissed or consolidated the indictments upon retrial. State v. Peters, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 889 (Tenn. Crim. App. Nov. 5, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 281 (Tenn. Apr. 7, 2016).

Defendant's conviction for employing a firearm during the commission of a dangerous felony did not violate the protection against double jeopardy and did not contravene T.C.A. § 39-17-1324(c), as the underlying felony for the charge of employing a firearm during a dangerous felony was aggravated burglary, not the aggravated assault of which he was also convicted. State v. Webb, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 11, 2015), appeal dismissed, — S.W.3d —, 2017 Tenn. LEXIS 207 (Tenn. Apr. 4, 2017).

Since the victims of the aggravated assault and the aggravated robbery were different people, defendant's convictions for both offenses did not violate his constitutional protection against double jeopardy. State v. Branham, 501 S.W.3d 577, 2016 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 443 (Tenn. June 23, 2016).

Events gave rise to two separate and distinct offenses, and thus defendants' double jeopardy claim was without merit; the beating was the basis for the aggravated child abuse convictions and the failure to seek timely medical treatment for the victim was the basis for the aggravated child neglect convictions, and these convictions did not violate double jeopardy. State v. Starner, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 20, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 570 (Tenn. Aug. 18, 2016).

Defendant's convictions under this section did not violate double jeopardy because they were permitted by statute, as by amending this section the legislature intended to permit multiple aggregation of offenses. State v. Doria, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 307 (Tenn. Crim. App. Apr. 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 622 (Tenn. Aug. 17, 2016).

Unlawful killing of a person is a crime distinctly different from that of an assault upon a person, and although serious bodily injury is an element of assault it is not an element of murder and assault resulting in serious bodily injury and second degree murder are completely separate offenses; thus, reckless aggravated assault contains an element (serious bodily injury) not contained in the reckless homicide statute and that reckless homicide contains an element (killing) not required for a conviction for reckless aggravated assault, and defendant's convictions for both could stand under the double jeopardy analysis. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

It had previously been held that the 2009 amendment of the statute abrogated part (b) of the State v. Burns double jeopardy test; thus, reckless aggravated assault is not a lesser included offense of reckless homicide under the statute and dual convictions are proper, and defendant was not entitled to relief. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

Defendant claimed that a conviction for both employment of a firearm during the commission of a dangerous felony and the predicate felony violated the principles of double jeopardy, but it was clear that the Legislature intended to permit multiple punishments, and defendant was not entitled to relief. State v. Pirtle, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 536 (Tenn. Crim. App. July 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 902 (Tenn. Nov. 22, 2016).

Defendant's conviction for forgery did not violate his double jeopardy rights as the offenses of theft of property and forgery contained at least one element not found in the other because theft of property required the intent to deprive the owner of property by exercising control over the property without the owner's consent, while forgery contained the element of forging a writing in order to defraud another. State v. Dockery, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 593 (Tenn. Crim. App. Aug. 11, 2016).

Crimes occurred on the same day and in the same location, and thus the reckless homicide and reckless aggravated assault clearly arose from the same conduct; however, reckless aggravated assault contains an element (serious bodily injury) not contained in the reckless homicide statute and that reckless homicide contains an element (killing) not required for a conviction for reckless aggravated assault, and thus defendant's convictions for both could stand under the Blockburger double jeopardy analysis. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

There was no double jeopardy violation, because because the charges in the first trial listed different dates than in the second trial and therefore, were distinct offenses. Hollis v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 14, 2017), cert. denied, Hollis v. Tennessee, 200 L. Ed. 2d 272, 138 S. Ct. 1004, — U.S. —, 2018 U.S. LEXIS 1052 (U.S. Feb. 20, 2018).

Although the especially aggravated sexual exploitation of a minor convictions required the State to establish that defendant persuaded or encouraged the victim to take sexually explicit photographs of herself, no such proof was required for the sexual exploitation of a minor by electronic means conviction. The offenses contain different elements, and therefore, convictions for both offenses did not violate principles of double jeopardy. State v. Jernigan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 15, 2017).

Defendant's convictions of rape and attempted rape did not violate due process or double jeopardy because each count involved a different type of sexual penetration, as the victim testified that defendant forced her to perform oral sex on him, that he performed oral sex on her, and that he tried to penetrate her vaginally. State v. Batts, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 228 (Tenn. Crim. App. Mar. 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 441 (Tenn. July 20, 2017).

Dual convictions for Class D felony evading arrest and Class E felony reckless endangerment did not violate principles of double jeopardy because each offense required elements the other did not. State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017).

Defendant had no standing to challenge his co-defendant's severance motion from which his double jeopardy argument stemmed because the co-defendant properly severed his case from defendant's, jeopardy did not attach to defendant's indictment after the co-defendant's trial, and less than one year later defendant was tried and convicted for his participation in the crimes. State v. Denton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Aug. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 856 (Tenn. Dec. 8, 2017).

Trial court erred by merging defendant's three aggravated child abuse convictions into his aggravated child neglect convictions because they did not arise from the same act, as the State's theories for the aggravated child abuse counts were based on three distinct episodes of abuse, and its theory for the aggravated child neglect count was based on defendant's failure to obtain medical care for the infant. State v. Demeza, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 128 (Tenn. Crim. App. Feb. 21, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 348 (Tenn. June 8, 2018).

Because vehicular homicide and reckless aggravated assault required proof of different elements, the trial court did not err in failing to merge the reckless aggravated assault convictions into the vehicular homicide conviction, despite that the fact that they stemmed from one act of driving. State v. Cromwell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. July 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 729 (Tenn. Nov. 15, 2018).

Defendant's convictions for first degree felony murder, aggravated robbery, and attempted aggravated robbery were all based on discrete acts or involved multiple victims; therefore, they did not satisfy the threshold inquiry of the Blockburger test, and double jeopardy did not bar defendant's conviction for aggravated burglary along with his convictions for aggravated robbery and attempted aggravated robbery. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 5, 2018).

Defendant's dual convictions for rape of a child and aggravated sexual battery did not violate double jeopardy because defendant's conduct did not constitute a single, continuous sexual assault as defendant's first kissing the victim's vagina in bed and then pulling the victim onto the floor so that defendant could penetrate the victim with defendant's penis showed that defendant intended to commit two separate sexual assaults on the victim. State v. Gonzales, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 783 (Tenn. Crim. App. Oct. 18, 2018).

Defendant's double jeopardy protections were not violated by the denial of his motion to dismiss the felony murder charge because the lack of a jury verdict on the count at the first trial was not an implicit acquittal, as the jury was instructed to consider the count only if it returned a not guilty verdict for premeditated murder. State v. Rimmer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 21, 2019).

Defendant's separate convictions for aggravated assault and domestic assault did not violate the Double Jeopardy Clauses of the state and federal constitutions, because there were two separate acts separated by defendant's use of a stick taken from the victim. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Oct. 4, 2019).

Defendant's conviction of sexual battery by an authority figure did not violate double jeopardy because defendant could not show that he was punished twice for the same conduct, an inconsistent jury verdict was not a basis for relief, and he was found not guilty of a touching regarding one part of the victim's body and guilty of a touching regarding another part of the victim's body. State v. Franklin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. May 21, 2020).

Indictment charging defendants with attempted first degree murder was sufficient to protect defendants against double jeopardy even though it did not identify the victims because the indictments specified the day on which the shooting happened, specifically referenced the surveillance videos that captured the shooting on film, and specifically differentiated the victims by the clothing that they were wearing. If the victims were to come forward after the current prosecution had ended, the State and defendants would have enough information to determine that the victims were speaking of the same shooting, thereby precluding a second prosecution for the same offenses. State v. Bowen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. June 30, 2020).

31. Illustrative Cases.

Double Jeopardy Clause, U.S. Const. amend. V, and Tenn. Const. art. I, § 10 barred defendant's retrial on first-degree premeditated murder, but defendant could be tried again for second-degree murder and abuse of a corpse where: (1) The first-degree premeditated murder conviction was reversed by the appellate court for insufficient evidence; (2) The appellate court reduced the murder conviction to second-degree murder; (3) The State did not appeal; and (4) The state's highest court reversed the second-degree murder and abuse of a corpse convictions. State v. Climer, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Defendant's retrial was not barred by double jeopardy because the trial court properly determined that the jury was hopelessly deadlocked and that a manifest necessity for a mistrial existed, and defendant consented to a mistrial. State v. Leath, 461 S.W.3d 73, 2013 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. June 3, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 981 (Tenn. Nov. 13, 2013), cert. denied, Leath v. Tennessee, 189 L. Ed. 2d 173, 134 S. Ct. 2292, — U.S. —, 2014 U.S. LEXIS 3508 (U.S. 2014).

Defendant's convictions for six counts of sexual exploitation of a minor were permitted by the terms of T.C.A. § 39-17-1003, and thus, they were not multiplicitous. State v. Aguilar, 437 S.W.3d 889, 2013 Tenn. Crim. App. LEXIS 1101 (Tenn. Crim. App. Dec. 18, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 436 (Tenn. May 16, 2014).

Defendant's conviction of three counts of making a false statement under T.C.A. § 39-16-502 were multiplicitous because the false reports related to the same incident, the disappearance of defendant's wife, and were in furtherance of the officers' investigation into that incident, and therefore two of those counts were dismissed. State v. Smith, 436 S.W.3d 751, 2014 Tenn. LEXIS 466 (Tenn. June 19, 2014).

Trial court did not abuse its discretion in declaring a mistrial based on manifest necessity after the trial judge considered all relevant factual circumstances and conducted a jury-out hearing, and the attorney for defendant was provided an opportunity to ask questions of the challenged jurors about what they had been told by a deputy and whether they could continue with deliberations. State v. Miller, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1000 (Tenn. Crim. App. Nov. 3, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 116 (Tenn. Feb. 13, 2015).

Double jeopardy principles were not violated by the trial court's refusal to merge defendant's two convictions for aggravated rape because each type of penetration - vaginal and anal - required a purposeful act on defendant's part, with each act producing its own attendant fear, humiliation, pain, and damage. State v. McDonald, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 13, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 418 (Tenn. May 14, 2015).

Although the State of Tennessee properly charged defendant in five counts for separate acts of theft from each of five victims, the State erred by also charging defendant in one count with a single act of theft for defendant's collectively having taken money from all of the five victims because this count violated the prohibition against double jeopardy. State v. Evans, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 978 (Tenn. Crim. App. Dec. 9, 2015).

Inasmuch as a trial court found that a parent could not be found in criminal contempt, such decision had to be affirmed on appeal because the double jeopardy provisions of the United States and Tennessee Constitutions barred an appeal from the acquittal of criminal contempt. Howard v. Howard, — S.W.3d —, 2016 Tenn. App. LEXIS 490 (Tenn. Ct. App. July 13, 2016).

Defendant's convictions for especially aggravated robbery violated double jeopardy principles, because the sole theft occurred during the first entry and defendant did not receive notice that he would have to prepare a defense against a burglary charge in which he intended to kill the victims. State v. Tolbert, 507 S.W.3d 197, 2016 Tenn. Crim. App. LEXIS 404 (Tenn. Crim. App. May 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 552 (Tenn. Aug. 18, 2016).

Defendant's convictions for assault and domestic assault violated double jeopardy under U.S. Const. amend. VI and Tenn. Const. art. I, § 10 because all of the elements of assault were included in domestic assault and even though domestic assault included an element that assault did not the reverse was not true. State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016).

Trial court erred in vacating defendant's guilty plea because the order violated his double jeopardy rights since the trial court unconditionally accepted defendant's guilty plea and all terms of the plea agreement and entered an order reflecting its acceptance of defendant's guilty plea; defendant relied upon the agreement to his detriment because he began serving his sentence for violating his probation and completed a majority of the sentence before the State moved to withdraw the plea. State v. Atkins, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 819 (Tenn. Crim. App. Nov. 2, 2016).

Case involved a multiple description claim because defendant was convicted of violating two different statutes, the statute proscribing aggravated sexual battery and the statute proscribing rape of a child. State v. Itzol-Deleon, — S.W.3d —, 2017 Tenn. LEXIS 477 (Tenn. Aug. 25, 2017).

Defendant only employed the firearm one time and thus multiple convictions of attempted second degree murder and employing a firearm in the commission of a dangerous felony would have run afoul of the prohibition against double jeopardy. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

Although the offenses arose from the same act or transaction of defendant's act of putting a knife to the victim's throat and then dragging her 20-30 feet down a dark driveway toward a scrap yard, aggravated assault was not a lesser included offense of attempted aggravated kidnapping and the offenses were not the same for the purposes of double jeopardy as each crime contained an element that the other did not because attempted aggravated kidnapping required a specific intent to commit the crime of aggravated kidnapping, including a removal or confinement of the victim; and aggravated assault contained an element of fear and required the State to show that defendant caused the victim to reasonably fear imminent bodily injury. State v. Tittle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Oct. 23, 2017).

When the trial court amended defendant's conviction to simple assault, it did so in violation of defendant's protection against double jeopardy because, under T.C.A. § 39-13-101, simple assault was an offense that required an intentional or knowing mental state and specifically excluded the mens rea of recklessness, and the jury had already determined that defendant did not act intentionally or knowingly, collaterally estopping the trial court from entering the simple assault conviction; State v. Howell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 11, 2018).

Finding a father in contempt for sending a text message violated double jeopardy because finding the father in contempt for sending other messages on the same day acquitted the father of contempt for sending this message. Marlow v. Marlow, — S.W.3d —, 2018 Tenn. App. LEXIS 299 (Tenn. Ct. App. May 29, 2018).

Double jeopardy did not bar a mother from prosecuting a certain contempt petition against a father because (1) the father's guilty plea to that petition's unspecified counts was set aside on procedural grounds of lack of a proper advisement, and (2) double jeopardy did not attach to the unspecified counts. Marlow v. Marlow, — S.W.3d —, 2018 Tenn. App. LEXIS 299 (Tenn. Ct. App. May 29, 2018).

Defendant's felony evading arrest in the car and misdemeanor evading arrest on foot did not violate double jeopardy as they were not part of the same act or transaction as the crash was an intervening force, and defendant formed an additional intent to flee from officers after the crash. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's convictions for robbery and theft violated the constitutional protection against double jeopardy because the convictions for theft and robbery arose out of the same act or transaction as defendant approached the victim at a movie rental machine, demanded her keys, and ultimately drove away with her car with her purse and other belongings inside; and the theft of the victim's car and purse was subsumed by the robbery. State v. Derring, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2019).

Defendant's two convictions of aggravated child abuse violated double jeopardy principles and had to be merged, as the State failed to show that the victim's rib one fracture and subdural hematoma were the result of separate and distinct acts. State v. Hendrix, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. May 14, 2019).

Defendant's dual convictions of aggravated child abuse resulting in serious bodily injury and child abuse presented a multiple description claim; the evidence failed to show that the bruising was not part of the same transaction or occurrence as the rib fracture or subdural hematoma, and as child abuse was a lesser-included offense of aggravated child abuse, the court presumed that multiple convictions were not intended by the legislature and violated double jeopardy, and thus defendant's conviction of child abuse had to merge. State v. Hendrix, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. May 14, 2019).

NOTES TO DECISIONS

1. Ex Post Facto Law Defined.

An ex post facto law punishes an act which was not punishable at the time it was committed or adds punishment, or changes the rules of evidence by which less or different testimony is sufficient to convict than was previously required. State v. Young, 904 S.W.2d 603, 1995 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. 1995).

The 1997 amendment to T.C.A. § 40-28-105 was merely a procedural change which did not implicate the constitutional prohibition against ex post facto laws; application of the new statute to deny parole to an inmate serving a life sentence for a 1977 murder conviction did not violate ex post facto concerns. Miller v. Tenn. Bd. of Prob. & Paroles, 119 S.W.3d 696, 2003 Tenn. App. LEXIS 335 (Tenn. Ct. App. 2003).

2. Ex Post Facto and Retrospective Laws Distinguished.

An ex post facto law relates to public punishment, and not to remedial matters; and this certainly was the sense in which the framers of the constitution used the terms. A statute may be retrospective in giving a remedy against a past wrong or for the enforcement of existing rights, but in legal phraseology, it cannot be called an ex post facto law. Jones v. Jones, 2 Tenn. 2, 1804 Tenn. LEXIS 2 (1804). See Tenn. Const. art. I, § 20.

3. Prior Provisions Unconstitutional.

Where death penalty provision in effect at time of crime was committed was later declared unconstitutional, the sentencing of defendant to a death penalty under the provisions of the law as it existed at the time of trial was in violation of Tenn. Const. art. I, § 11. Miller v. State, 584 S.W.2d 758, 1979 Tenn. LEXIS 468 (Tenn. 1979).

4. Sentences.

Sentence of 80 years for first-degree murder was in contravention of Tenn. Const. art. I, § 11, when the legally effective punishment at the time the crime was committed was life imprisonment. State v. Robinson, 622 S.W.2d 62, 1981 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. 1980), dismissed, LeMay v. Tennessee, 454 U.S. 1096, 102 S. Ct. 667, 70 L. Ed. 2d 636, 1981 U.S. LEXIS 2831 (1981).

A trial court imposing a sentence after the effective date of the 1989 Sentencing Reform Act, title 40, ch. 35, for a burglary committed before that date must calculate the appropriate sentence under both the 1982 sentencing statute and the 1989 act, and then impose the lesser sentence of the two statutes. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993); State v. Dunn, 901 S.W.2d 398, 1995 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1995).

In determining whether an ex post facto violation exists in the context of sentencing, the critical question under both the United States and Tennessee constitutions is whether the law changes the punishment to the defendant's disadvantage, or inflicts a greater punishment than the law allowed when the offense occurred. State v. Pearson, 858 S.W.2d 879, 1993 Tenn. LEXIS 240 (Tenn. 1993).

Repeal of parole eligibility standards previously available to an inmate implicates the ex post facto clause if the effect of the repeal is to impose a greater or more severe punishment than was proscribed by law at the time of the offense. Kaylor v. Bradley, 912 S.W.2d 728, 1995 Tenn. App. LEXIS 523 (Tenn. Ct. App. 1995).

Exclusion of defendant from consideration for early release in accordance with a declaration of the governor directing the department of correction and parole board not to consider inmates convicted of homicide for release under the early release program did not violate federal or state ex post facto clauses. Kaylor v. Bradley, 912 S.W.2d 728, 1995 Tenn. App. LEXIS 523 (Tenn. Ct. App. 1995).

Department of correction did not violate the constitutional prohibitions against ex post facto laws in extending prisoner's release eligibility date (RED), even though the specific rule used to extend his RED after he assaulted a prison guard was not in effect at the time he was sentenced, because the rule was in effect at the time he assaulted the prison guard and he cannot argue that he did not have fair warning of the possible consequences of his assault. Smith v. Campbell, 995 S.W.2d 116, 1999 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1999).

In order to comply with the ex post facto prohibitions of the United States and Tennessee constitutions, pursuant to T.C.A. § 40-35-117(b), the trial court judges imposing sentences after the effective date of the 1989 Sentencing Reform Act, T.C.A. § 40-35-101 et seq., for crimes committed prior thereto, must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their entirety, and then impose the lesser sentence of the two; because the trial court did not calculate the two sentences with regard to one of the aggravated sexual battery convictions as required, the appellate court remanded the case to the trial court for resentencing. State v. Jordan, 116 S.W.3d 8, 2003 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. 2003).

When a prisoner committed the crimes of murder, T.C.A. § 39-13-202, and armed robbery, T.C.A. § 39-13-402, in 1986, the prisoner knew that violations of the prison disciplinary rules could put the prisoner at risk of serving a longer period of time before becoming eligible to be considered for parole and, accordingly, neither the 1989 nor the 1996 changes in the prison's disciplinary policy deprived the prisoner of a pre-existing right or enhanced the punishment for the prisoner's 1986 crimes beyond the punishment authorized by T.C.A. § 40-35-501(h). Utley v. Tenn. Dep't of Corr., 118 S.W.3d 705, 2003 Tenn. App. LEXIS 325 (Tenn. Ct. App. 2003).

Court's erroneous application of the 1998 amendment to T.C.A. § 39-13-204 in defendant's 1992 felony murder case was not harmless where it led directly to the prosecution's introduction of detailed and graphic evidence of prior violent felonies committed by defendant. The law as it existed at the time of the offense prohibited such evidence, and moreover, the prosecution heavily relied upon the inadmissible evidence underlying defendant's prior felonies in arguing that the jury should impose the death penalty for defendant's offense. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

5. Procedure.

Change in the rule prohibiting spouses from testifying over objection in criminal cases to rule that only a witness spouse may invoke the spousal privilege did not constitute a violation of the prohibition against ex post facto laws. State v. Bragan, 920 S.W.2d 227, 1995 Tenn. Crim. App. LEXIS 541 (Tenn. Crim. App. 1995), rehearing denied, — S.W.2d —, 1995 Tenn. Crim. App. LEXIS 717 (1995).

The Tennessee supreme court's decision to abolish the obsolete common law year and a day rule and to apply its decision retroactively did not constitute an unforeseeable judicial enlargement of a criminal statute because the common law rule had been abolished in many other jurisdictions, had never served as a ground of decision in any Tennessee case, has been mentioned favorably in Tennessee only once since 1907 and does not allow the state to obtain a conviction upon less proof. State v. Rogers, 992 S.W.2d 393, 1999 Tenn. LEXIS 276 (Tenn. 1999), rehearing denied, — S.W.2d —, 1999 Tenn. LEXIS 314 (Tenn. June 21, 1999), aff'd, Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697, 2001 U.S. LEXIS 3519 (2001).

Although petitioner argued that to apply disenfranchisement statute to him violated Tenn. Const. art. I, § 11, which prohibits ex post facto laws, the appellate court declined to exercise its discretion to consider this issue, as it was not raised or properly developed in the trial court. State v. Dixon, — S.W.3d —, 2018 Tenn. App. LEXIS 123 (Tenn. Ct. App. Mar. 6, 2018).

6. Illustrative Cases.

Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004, T.C.A. § 40-39-201 et seq., and the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act, T.C.A. § 40-39-301 et seq., do not violate the ex post facto clause of the U.S. Constitution. Doe v. Bredesen, 507 F.3d 998, 2007 FED App. 456P, 2007 U.S. App. LEXIS 26630 (6th Cir. Nov. 16, 2007), rehearing denied, 521 F.3d 680, 2008 FED App. 131P (6th Cir.), 2008 U.S. App. LEXIS 5907 (6th Cir. 2008), cert. denied, 555 U.S. 921, 172 L. Ed. 2d 210, 129 S. Ct. 287, — U.S. —, 77 U.S.L.W. 3206, 2008 U.S. LEXIS 6350 (U.S. 2008).

Denial of the petitioner's motion for expungement of any records relating to the charge of child abuse was reversed and remanded because the 2003 amendment to the expungement statute could not be used to deny the petitioner's request for expungement, when retroactive application of the amended expungement statute violated the petitioner's constitutional protection against ex post facto laws because at minimum it offered a situation disadvantageous to the petitioner by unduly burdening him with the societal stigma attached to a felony. State v. Hanners, 235 S.W.3d 609, 2007 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 12, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 676 (Tenn. Aug. 13, 2007).

Subsections (b) and (c) of T.C.A. § 40-29-202 do not violate the ex post facto clauses of the Tennessee and U.S. Constitutions because the state's re-enfranchisement scheme is not punitive in nature. Johnson v. Bredesen, 579 F. Supp. 2d 1044, 2008 U.S. Dist. LEXIS 80932 (M.D. Tenn. Sept. 22, 2008), aff'd, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010).

Where homicide was not listed by former T.C.A. § 40-2712 (now T.C.A. § 40-20-112) as a crime of infamy at the time petitioner committed the offense of first degree murder in 1980, the trial court erred by applying a 1981 enactment to declare petitioner infamous under T.C.A. § 40-20-112 for having committed a felony; the retroactive disenfranchisement of petitioner's voting rights violated Tenn. Const. art. I, § 11. May v. Carlton, 245 S.W.3d 340, 2008 Tenn. LEXIS 10 (Tenn. Jan. 18, 2008).

T.C.A. § 40-29-202(b) and (c), which conditions re-enfranchisement of convicted felons on payment of restitution and child support obligations, does not violate the Tennessee Constitution's Ex Post Facto Clause, Tenn. Const. art. I, § 11; § 40-29-202 serves to designate a reasonable ground of eligibility for voting, and thus qualifies as a nonpenal exercise of the power to regulate the franchise. Johnson v. Bredesen, 624 F.3d 742, 2010 FED App. 335P, 2010 U.S. App. LEXIS 22357 (6th Cir. Oct. 28, 2010), rehearing denied, — F.3d —, — FED App. —, 2010 U.S. App. LEXIS 26390 (6th Cir. Dec. 17, 2010), cert. denied, Johnson v. Haslam, 563 U.S. 1008, 131 S. Ct. 2903, 179 L. Ed. 2d 1246, 2011 U.S. LEXIS 3835.

Tennessee Exclusionary Rule Reform Act, T.C.A. § 40-6-108, was not an ex post facto statute as applied in defendant's case. As a result, defendant's motion to suppress the evidence against defendant was not well-taken because the error in the date written on the search warrant was a good faith or technical mistake and the trial court properly ruled that, pursuant to the Act, the evidence was not to be suppressed. State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Retroactively applying requirements to consider victim input at parole hearings was no ex post facto violation because the requirements posed an insignificant risk of increased punishment, as a statute requiring the Tennessee Board of Probation and Parole to consider such input, and a constitutional provision letting victims attend parole hearings were procedural and did not determine parole suitability. York v. Tenn. Bd. of Parole, 502 S.W.3d 783, 2016 Tenn. App. LEXIS 269 (Tenn. Ct. App. Apr. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 572 (Tenn. Aug. 18, 2016).

Inmate was collaterally estopped from claiming retroactively applying a statutory requirement to consider the inmate's crime's seriousness at a parole hearing was an ex post facto violation because (1) the issue was finally decided on the merits in the inmate's prior appeals, (2) the parties to both proceedings were the same, and (3) the inmate had a full chance to litigate the issue. York v. Tenn. Bd. of Parole, 502 S.W.3d 783, 2016 Tenn. App. LEXIS 269 (Tenn. Ct. App. Apr. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 572 (Tenn. Aug. 18, 2016).

Trial court's order denying a prisoner's petition for restoration of citizenship rights did not violate ex post facto protections because the trial court's application of T.C.A. § 40-29-105 could not form the basis for an ex post facto violation based on the imposition of a harsher punishment than originally applicable. Moffitt v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 708 (Tenn. Ct. App. Feb. 4, 2018).

Plaintiff's conclusory allegation, that the registration requirements and work restrictions of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 were facially unconstitutional because they failed to provide adequate procedures for the determination of whether or not their effect was punishment, simply did not allege facts; the motion to dismiss was properly granted with respect to plaintiff's challenge that the Act violated ex post facto provisions. King v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 663 (Tenn. Ct. App. Nov. 15, 2018).

Plaintiff's petition alleged sufficient facts which could support a holding that, as applied to him, the requirements and restrictions were not rationally connected to a non-punitive purpose or were excessive relative to that purpose, and thus the dismissal of his petition with respect to his as-applied ex post facto challenge was reversed. King v. State, — S.W.3d —, 2018 Tenn. App. LEXIS 663 (Tenn. Ct. App. Nov. 15, 2018).

7. No Ex-post Facto Violation.

Trial court did not err when it used the evidentiary standard announced in State v. Dorantes because both the Tennessee Supreme Court and the Court of Criminal Appeals of Tennessee, at Knoxville began utilizing the same standard for direct and circumstantial evidence shortly after the issuance of Dorantes to cases in which the crimes had occurred before January 2011. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, which, as amended in 2012, designated the promotion of prostitution as a sexual offense requiring registration with the Tennessee Sex Offender Registry, does not violate the constitutional prohibition against ex post facto laws because the basic registration requirement does not increase the measure of punishment attached to the predicate crime. State v. Witwer, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 177 (Tenn. Crim. App. Mar. 16, 2015).

Refusal of the Tennessee Board of Parole to set an inmate's next parole hearing within one year was not a violation of the ex post facto clause because the amendment to the Board's procedural rules that eliminated the annual parole review was not facially unconstitutional. Bibbs v. Tenn. Bd. of Parole, — S.W.3d —, 2016 Tenn. App. LEXIS 277 (Tenn. Ct. App. Apr. 22, 2016).

Post-conviction court properly denied petitioner post-conviction relief because he failed to show that trial counsel was deficient for failing to raise an ex post facto claim; application of the amended version of the statute raised no ex post facto concerns because it was a procedural rule, and the change in the statute did not affect the nature of conduct for which petitioner was convicted, aggravate the crime, change the range of punishment, or alter the evidence needed to convict him. Askew v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 306 (Tenn. Crim. App. Apr. 26, 2016).

Statutes governing community supervision for life did not violate the ex post facto clause because plaintiff sex offender was on notice that the supervising agency could establish individualized or specialized conditions of supervision to protect the public from him and to promote his rehabilitation; the conditions of his supervision were not fixed at the time he committed his last offense or somehow limited to those then-imposed on regular parolees; and the Sex Offender Directives did not inflict greater punishment than the law allowed when the crimes were committed as plaintiff was sentenced to community supervision for life with individualized conditions, and he remained under supervision for life with individualized conditions. Nunn v. Tenn. Dep't of Corr., — S.W.3d —, 2017 Tenn. App. LEXIS 706 (Tenn. Ct. App. Oct. 23, 2017).

In a case in which defendant was required to register as a sexual offender and to report monthly to a probation and parole officer, the registration and reporting requirements of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 did not violate the ex post facto clause as the requirements were non-punitive and intended to protect the general welfare of the State of Tennessee; and defendant did not show how his circumstances prevented the non-punitive purpose from applying to him, made the requirement more excessive than it would be for any other homeless resident of Tennessee, or imposed some unique disability or restraint on him. State v. Hoss, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1033 (Tenn. Crim. App. Dec. 15, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 205 (Tenn. Apr. 18, 2018).

Sex offender did not show application of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (Act) to the offender was an ex post facto violation because (1) the legislature did not so intend the Act, (2) binding precedent held the Act was not punitive in effect, and (3) the offender did not show by clearest proof how the Act punished the offender or that the Act imposed an impermissible punishment. Clark v. Gwyn, — S.W.3d —, 2019 Tenn. App. LEXIS 176 (Tenn. Ct. App. Apr. 11, 2019).

Changes in the law concerning victim input in the parole process did not violate the ex post facto clause of the federal and State constitutions because the parole standards had not changed as applied to the inmate; the Tennessee Board of Paroles had always been required to consider the seriousness of the offense in determining a prisoner's parole eligibility. Smith v. Tenn. Bd. of Paroles, — S.W.3d —, 2019 Tenn. App. LEXIS 364 (Tenn. Ct. App. July 25, 2019).

NOTES TO DECISIONS

1. Application and Scope of Provision.

Tenn. Const. art. I, § 12, together with certain other provisions, is expressly addressed to the judges, who are not only forbidden to violate the provisions themselves, but who are clothed with ample power, and required by the most solemn obligations, to see that, as to any and every citizen, they are not violated in one jot or tittle. Bank of State v. Cooper, 10 Tenn. 599, 1831 Tenn. LEXIS 24 (1831).

Tenn. Const. art. I, § 12 has no connection whatever with the devolution of property, and is inapplicable in such a case, and does not so apply as to allow the surviving husband to take the choses in action of his predeceased wife, where he made himself the survivor by feloniously taking her life. Box v. Lanier, 112 Tenn. 393, 79 S.W. 1042, 1903 Tenn. LEXIS 113, 64 L.R.A. 458 (1904); Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907).

Viewing the historical background of this constitutional provision, the intent was to guard against the repetition of wrongs by the new sovereign, the state, which the old sovereign, the king, had committed. Houser v. Haven, 32 Tenn. App. 670, 225 S.W.2d 559, 1949 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1947).

Forfeitures are not favored by the law; when a statute does provide for a forfeiture, statutes are to be strictly construed. Hays v. Montague, 860 S.W.2d 403, 1993 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1993).

2. Forfeiture of Articles Used in Crimes.

Notwithstanding the constitutional prohibition to the forfeiture of property for criminal conviction, statutes providing for forfeiture of articles of property held in commission of a crime are generally deemed constitutional when the forfeiture fairly tends to accomplish a legitimate purpose under the police power. Hays v. Montague, 860 S.W.2d 403, 1993 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1993).

3. “Deodand” Doctrine Denounced.

The common law doctrine of “deodand” (a thing forfeited to God), by which is meant the forfeiture of a personal chattel, animate or inanimate, when becoming the immediate instrument causing the death of a human creature, the forfeiture being to the king, for sale and a distribution of the proceeds in alms to the poor by his high almoner, “for the appeasing of God's wrath,” was deemed to be so repugnant to our ideas of justice, it was denounced by all our constitutions as was done by Tenn. Const. art. I, § 12. Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S.W. 54, 1916 Tenn. LEXIS 44, 1916F L.R.A. (n.s.) 935 (1916).

4. Execution of Person by State — Disposition of Property.

Tenn. Const. art. I, § 12 establishes the public policy of this state as opposed to forfeitures for conviction for crimes; and it is not contrary to public policy for a life insurance company to be required to pay to the beneficiary the amount of the policy upon the life of one who was executed by the state for murder. Fields v. Metropolitan Life Ins. Co., 147 Tenn. 464, 249 S.W. 798, 1922 Tenn. LEXIS 59, 36 A.L.R. 1250 (1923).

5. Person Feloniously Killing Another — Rights as to Property of Decedent.

Where the husband feloniously kills his wife, he acquires no estate in her choses in action, and, therefore, has nothing to forfeit in it, and the question of forfeiture provided against by the constitutional provision that “no conviction shall work corruption of blood or forfeiture of estate” does not arise. Box v. Lanier, 112 Tenn. 393, 79 S.W. 1042, 1903 Tenn. LEXIS 113, 64 L.R.A. 458 (1904); Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907).

Acts 1905, ch. 11, Code, § 31-207, providing, in substance, that any person who feloniously kills another, or conspires or procures the same to be done, shall not inherit or in any way take the property of the deceased, but shall forfeit all right, interest, and estate therein, does not apply to an estate held by the husband and wife as tenants by the entirety, so as to forfeit the estate vested in the husband upon the wife's death, where he feloniously killed her. If the statute was construed to so operate as to cause a forfeiture in such case, it would be unconstitutional and void as in conflict with the constitutional provision that “no conviction shall work corruption of blood or forfeiture of estate.” Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907).

Tenn. Const. art. I, § 12 is not meant to shield the ill-gotten gains of a citizen but to protect the citizen against oppressions of the sovereign, and person causing the death of another otherwise than by accident or necessary self-defense could not benefit as assignee of insurance policy on life of deceased. Houser v. Haven, 32 Tenn. App. 670, 225 S.W.2d 559, 1949 Tenn. App. LEXIS 116 (Tenn. Ct. App. 1947).

Prohibiting husband who feloniously killed his wife from gaining the conversion of his tenancy by the entirety into a fee simple estate, and instead converting it into a tenancy in common, did not violate Tenn. Const. art. I, § 12 by allowing a forfeiture of vested interest in land. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

6. Actions by Prisoners.

A prisoner has a qualified and restricted constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right; however, absent unusual circumstances, prisoners who have filed their civil complaints, unrelated to the legality of their convictions and who have thus protected themselves against the running of any statute of limitations, will not be afforded the opportunity to appear in court to present their cases during their prison terms. Instead, such matters will be held in abeyance until the prisoner shall have been released from prison and is in a position to prepare and present his case. Smith v. Peebles, 681 S.W.2d 567, 1984 Tenn. App. LEXIS 3212 (Tenn. Ct. App. 1984).

The question of whether to permit a prisoner/litigant in a civil suit to be physically present is within the trial court's sound discretion. Knight v. Knight, 11 S.W.3d 898, 1999 Tenn. App. LEXIS 279 (Tenn. Ct. App. Apr. 21, 1999).

7. Confiscation.

The department of correction cannot permanently confiscate cash found in an inmate's possession in violation of prison rules unless the general assembly has specifically authorized such a forfeiture. Blackmon v. Norris, 775 S.W.2d 367, 1989 Tenn. App. LEXIS 311 (Tenn. Ct. App. 1989).

NOTES TO DECISIONS

1. Unnecessary Rigor.

Taking of defendant's clothes for purpose of obtaining soil samples to compare with samples at burglarized building and keeping of them for several days and delay in furnishing medical attention to defendant with fractured leg from automobile accident did not amount to unnecessary rigor where there was no allegation that other clothes were not furnished and injured defendant who was arrested at noon while walking near railroad track was taken to hospital for examination and treatment in early evening. Sanders v. State, 216 Tenn. 425, 392 S.W.2d 916, 1965 Tenn. LEXIS 588 (1965).

Trial court properly granted the Tennessee Department of Correction (TDOC) a limited conservatorship over an inmate and the authority to consent to forcible treatment on his behalf because the order was the least restrictive means of furthering TDOC's compelling interest; assuming the imposition of a limited conservatorship was governed by Tenn. Const. art. I, § 13, the practice was not unnecessary because there was significant evidence it was necessary to treat serious mental health issues. State Dep't of Corr. v. Todd, — S.W.3d —, 2017 Tenn. App. LEXIS 223 (Tenn. Ct. App. Mar. 31, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 518 (Tenn. Aug. 17, 2017).

NOTES TO DECISIONS

1. History and Source of Provision.

Tenn. Const. art. I, § 14 is, in substance, borrowed from “Magna Charta” (9 Henry III, ch. 29), as are also the provisions of several other sections of the “Declaration of Rights” contained in Tenn. Const. art. I. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848).

2. Modes of Prosecution.

The mode of prosecution by presentment, both in cases of crimes and misdemeanors, is as legitimate, and as fully recognized by the common law and by the constitution, as is that by indictment. Glenn v. State, 31 Tenn. 19, 1851 Tenn. LEXIS 5 (1851).

3. Right of Trial by Jury Implied.

The right of trial by jury exists whenever punishment is to be inflicted, whether corporal, infamous, or pecuniary; for the provisions of Tenn. Const. art. I, § 14 by its very terms, implies a trial by jury. Tipton v. Harris, 7 Tenn. 414, 1824 Tenn. LEXIS 21 (1824). See Tenn. Const. art. I, § 9.

4. —Grand Jury Selection.

Discrimination in the selection of the grand jury remains a valid ground for setting aside a criminal conviction. Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739, 1979 U.S. LEXIS 146 (1979).

5. Criminal Charge — Scope of Term.

Disbarment proceeding was not a criminal charge within the meaning of Tenn. Const. art. I, § 14. Memphis & Shelby County Bar Asso. v. Vick, 40 Tenn. App. 206, 290 S.W.2d 871, 1955 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1955), cert. denied, 352 U.S. 975, 77 S. Ct. 372, 1 L. Ed. 2d 328, 1957 U.S. LEXIS 1542 (1957), rehearing denied, 353 U.S. 918, 77 S. Ct. 670, 1 L. Ed. 2d 670, 1957 U.S. LEXIS 1202 (1957), rehearing denied, 354 U.S. 944, 77 S. Ct. 1403, 1 L. Ed. 2d 1542, 1957 U.S. LEXIS 653 (1957).

6. —Misdemeanors and Small Offenses.

The terms “criminal charge,” “crimes,” and “infamous crimes” do not comprehend or apply to common misdemeanors not involving life or liberty so as to require under the constitution, a jury trial upon a presentment or indictment previously found. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Hogan v. Mayor of Chattanooga, 2 Shan. 339 (1877). See U.S. Const. art. 3, § 2, cl. 3 and U.S. Const. amends. 5, 7. But see Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824).

The “small offense” law is constitutional, because misdemeanors not involving life or liberty may be tried, under the constitution, without a jury, and because this law is a privilege of, or optional with, the defendant. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); Trigally v. Memphis, 46 Tenn. 382, 1869 Tenn. LEXIS 71 (1869); Foust v. State, 80 Tenn. 404, 1883 Tenn. LEXIS 189 (1883).

Conviction under the “small offense” law may be pleaded in bar of an indictment for the same offense. McGinnis v. State, 28 Tenn. 43, 1848 Tenn. LEXIS 39 (1848); State v. Layne, 96 Tenn. 668, 36 S.W. 390, 1896 Tenn. LEXIS 20 (1896).

The words “criminal charge” in Tenn. Const. art. I, § 14 refer only to prosecutions of the grade of felony. Lebanon & Big Spring Tpk. Co. v. State, 141 Tenn. 675, 214 S.W. 819, 1919 Tenn. LEXIS 18 (1919). See also Ready v. State, 155 Tenn. 15, 290 S.W. 28, 1926 Tenn. LEXIS 13 (1927).

Prosecutions for small offenses or violations of municipal ordinances have never been held to be criminal charges within the meaning of Tenn. Const. art. I, § 14. Howard v. State, 143 Tenn. 539, 227 S.W. 36, 1920 Tenn. LEXIS 39 (1920).

Petty offenses punishable with fines up to $50.00 are not embraced within Tenn. Const. art. I, § 14 and charge by presentment, indictment or impeachment is not required. Capitol News Co. v. Metropolitan Government of Nashville & Davidson County, 562 S.W.2d 430, 1978 Tenn. LEXIS 590 (Tenn. 1978).

7. Presentment.

Former T.C.A. § 69-3-115(d), which required that the district attorney general or the grand jury obtain permission from either the water quality control board or the commissioner of the department of health and environment before a warrant, presentment, or indictment, was unconstitutional because it infringed upon the prosecutorial discretion of the district attorney general and circumscribed the independence of the grand jury to investigate crimes and issue presentments.State v. Superior Oil, Inc., 875 S.W.2d 658, 1994 Tenn. LEXIS 110 (Tenn. 1994).

8. Sufficiency of Indictment.

Constitutional requirements as to substance of an indictment or presentment are only that it state “the nature and cause of the accusation”; and where the legislature has sanctioned omission of averments necessary at common law, the indictment under the statute will be treated as containing such averments by operation of law. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

Statute authorizing imposition of increased punishment on a second conviction, without an averment of the first or former conviction in the accusation, is not violative of constitutional provisions. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635, 1930 Tenn. LEXIS 152 (1930).

Indictment of defendant for aggravated assault was insufficient where it failed to provide adequate notice that she would be required to defend under a theory of criminal responsibility for the conduct of another. State v. Barnes, 954 S.W.2d 760, 1997 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. 1997).

Dismissal of an inmate's habeas corpus petition was proper because the language of the indictment was identical to former T.C.A. § 39-2-603, the statutory provisions in effect at the time of the offenses, and the indictment referenced the appropriate statute, identified the victim, stated the date of the offenses, and alleged the essential elements of the offenses; the indictment was thus sufficient to support the conviction. The absence of a grand jury foreman's signature on an indictment was not a proper ground for habeas corpus relief. Metcalf v. Sexton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Aug. 20, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 844 (Tenn. Nov. 21, 2012), cert. denied, 184 L. Ed. 2d 772, 133 S. Ct. 995, 568 U.S. 1149, 2013 U.S. LEXIS 1011.

Language of the indictment sufficiently apprised the inmate of the charges he faced, as it referenced the appropriate statute, stated the date of the offense, stated the name of the victim of the offense, and alleged the essential elements of the offense, including the appropriate mental state. Avila-Salazar v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 20, 2015).

9. Validity of Indictment.

Where, during the September term, one was elected by the bar to preside for the term, the regular judge being ill, such special judge holding over during the January term in the absence of the regular judge, under the belief that he was duly selected, was a de facto officer whose official acts are not subject to collateral attack; and an indictment, by a grand jury empaneled and instructed by him, will be upheld when challenged on ground that the special judge's authority expired with the September term, after a conviction regular in all other respects. Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 1929 Tenn. LEXIS 55, 71 A.L.R. 830 (1930).

There are no specifications or requirements in the constitution or code as to the form or manner or method in which a presentment must be made. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

There is no requirement that a presentment be signed by all of the grand jurors. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

Presentment was not invalid because member of grand jury who was selected as secretary indorsed the names of other grand jury members with their authorization and in their presence. Stoots v. State, 205 Tenn. 59, 325 S.W.2d 532, 1959 Tenn. LEXIS 341 (1959).

Claim that indictment in a previous conviction used as the basis for a habitual criminal charge was not a true bill and was not signed by the foreman of the grand jury did not constitute constitutional error and was not grounds for post-conviction relief on the theory that the conviction as a habitual criminal was void. State v. Wright, 225 Tenn. 652, 475 S.W.2d 546, 1972 Tenn. LEXIS 404 (1972).

Although original presentments returned by grand jury may have been defective in form, they nonetheless represented a finding of probable cause that defendant committed the offenses indicated, and defendant was not entitled, after presentments were quashed, to a preliminary hearing, since the only purpose of such hearings is to determine probable cause. State v. Hudson, 487 S.W.2d 672, 1972 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. 1972).

The constitution does not restrain the legislature in any sense from the enactment of laws prescribing or affecting the duties performed by, or imposing restraints upon, the district attorneys general in the state, in the procedure for the preparation of indictments or presentments. State v. Taylor, 653 S.W.2d 757, 1983 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1983).

Trial court erred in dismissing a presentment on the grounds that the district attorney general did not personally prepare the presentment, nor supervise an assistant district attorney general in its preparation. State v. Taylor, 653 S.W.2d 757, 1983 Tenn. Crim. App. LEXIS 345 (Tenn. Crim. App. 1983).

Prosecutorial abuse of the grand jury process occurs when the dominant purpose of a grand jury proceeding is to investigate a defendant for an offense for which he or she has already been indicted. State v. Mangrum, 403 S.W.3d 152, 2013 Tenn. LEXIS 312 (Tenn. Mar. 27, 2013).

It was no error to let the State amend an indictment to allege a new ground for tolling the statute of limitations applicable to second-degree murder because (1) defendant consented to the amendment, and, (2) if defendant did not consent, jeopardy had not attached, no new crime was charged, and defendant's substantial right was not prejudiced, as the State could have obtained a superseding indictment. State v. Hollingsworth, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 352 (Tenn. May 24, 2017).

Although the trial court erred in dismissing Count Two of the indictment, and, after realizing that error, the trial court recanted its ruling and reinstated that count, but that was error because a dismissal of charge in an indictment was a termination of that particular prosecution; furthermore, by dismissing part of the indictment, the trial court essentially amended the indictment, but the amendment was erroneous as defendant did not consent to the amendment. The combination of reinstatement and amendment of the indictment encroached on the grand jury's sole power to indict offenses as the trial court lacked the power to reinstate and amend the indictment once it was dismissed, even if it had been originally dismissed in error. State v. Parker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 467 (Tenn. Crim. App. June 26, 2018).

10. Quo Warranto and Information.

Neither the ancient writ of quo warranto, nor the information in the nature thereof, was ever in force or use in this state. Tenn. Const. art. I, § 14 has contributed to prevent the introduction of this proceeding into the courts of this state. State ex rel. Lowry v. Turk, 8 Tenn. 286, 8 Tenn. 287, 1827 Tenn. LEXIS 54 (1827); Attorney Gen. v. Leaf, 28 Tenn. 753, 1849 Tenn. LEXIS 121 (1849), questioned, Fairview v. Spears, 210 Tenn. 404, 359 S.W.2d 824, 1962 Tenn. LEXIS 451 (1962); Boring v. Griffith, 48 Tenn. 456, 1870 Tenn. LEXIS 90 (1870); State v. Wright, 57 Tenn. 237, 1872 Tenn. LEXIS 420 (1872); State v. White's Creek Tpk. Co., 3 Cooper's Tenn. Ch. 163 (1876); State v. McConnell, 71 Tenn. 332, 1879 Tenn. LEXIS 86 (1879); State ex rel. Johnson v. Campbell, 76 Tenn. 74, 1881 Tenn. LEXIS 11 (1881); State v. Red River Turnpike Co., 112 Tenn. 615, 79 S.W. 798, 1903 Tenn. LEXIS 131 (1904); State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910).

There being no statute or common law authority for use of a criminal information in this state in cases other than those involving offenses under the small offense law or for violations of municipal ordinances, the question was raised but not decided as to whether the use of a criminal information for misdemeanors generally could be authorized by the legislature in the light of Tenn. Const. art. I, § 14. Howard v. State, 143 Tenn. 539, 227 S.W. 36, 1920 Tenn. LEXIS 39 (1920).

11. Civil Proceedings.

Officers may be removed from office and attorneys disbarred under statute without previous conviction of delinquency under indictment. Evans v. Justices of Claibourne County, 4 Tenn. 26, 1816 Tenn. LEXIS 9 (1816); Hardin County Court v. Hardin, 7 Tenn. 291, 1823 Tenn. LEXIS 59 (1823); Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824) (in which case Judge Whyte dissented, and cited Tenn. Const. art. I, § 14); Fields v. State, 8 Tenn. 167, 8 Tenn. 168, 1827 Tenn. LEXIS 27 (1827).

Punishment prescribed by law for an offense committed can be inflicted under Tenn. Const. art. I, § 14 by indictment or presentment only; yet it does not follow that, for the sake of inflicting it, a civil proceeding, directed by statute, shall therefore be converted into a criminal one by indictment. Sevier v. Justices of Washington County, 7 Tenn. 334, 1824 Tenn. LEXIS 11 (1824).

The state's suit brought by its attorney general, or upon relation, to forfeit the franchise of a foreign corporation to do business within the state, upon the ground of an alleged conspiracy in restraint of trade, by a bill in chancery setting forth, without technical forms, the ground on which the suit is instituted, to be conducted as other suits in equity, in which issues of fact may be made up and tried by a jury, and a decree entered according to the practice of courts of chancery, is not a criminal charge in the sense of Tenn. Const. art. I, § 14, but is a civil proceeding to which the rules peculiarly applicable to criminal proceedings do not apply. State ex rel. Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565, 1907 Tenn. LEXIS 41 (1907), aff'd, Standard Oil Co. v. Tennessee, 217 U.S. 413, 30 S. Ct. 543, 54 L. Ed. 817, 1910 U.S. LEXIS 1967 (1910). See State ex rel. Astor v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 1900 Tenn. LEXIS 48, 78 Am. St. Rep. 941 (1900).

12. Waiver.

In all (except small) criminal offenses, the rights to be proceeded against only by indictment or presentment and to a trial by jury may be relinquished only by a valid written waiver. State v. Morgan, 598 S.W.2d 796, 1979 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. 1979).

Where defendant had not waived his right to a trial by jury in writing in the general sessions court, he still did not waive his right to a jury trial by his failure to demand a jury trial at the time of his appeal to the criminal court. State v. Jarnigan, 958 S.W.2d 135, 1997 Tenn. Crim. App. LEXIS 94 (Tenn. Crim. App. 1997).

13. Variance.

Defendant's conviction for driving without a license in his possession was dismissed where the presentment had been constructively amended by a jury instruction allowing the conviction as a lesser included offense of driving with a suspended license. State v. Smith, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Aug. 27, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 59 (Tenn. Jan. 16, 2015).

14. Subpoenas.

Trial court properly denied an already indicted defendant's motion to quash a subpoena requiring a witness to testify before a reconvened grand jury, as she failed to rebut the presumption that the prosecutor had a legitimate dominant purpose for issuing the subpoena—to allow the grand jury to act on the witness's testimony, and not to discover information of which the prosecutor was already aware. State v. Mangrum, 403 S.W.3d 152, 2013 Tenn. LEXIS 312 (Tenn. Mar. 27, 2013).

15. Use of Grand Jury Testimony at Trial.

Where a victim's daughter testified before a reconvened grand jury after defendant had already been indicted for murder, given the fact that defendant's husband was indicted as an accessory after the fact as a consequence of the second grand jury proceeding, the trial court did not err by denying defendant's motion to suppress the daughter's trial testimony and to dismiss the indictments. State v. Mangrum, 403 S.W.3d 152, 2013 Tenn. LEXIS 312 (Tenn. Mar. 27, 2013).

16. Suits Against the State

17. —Suits Against Officers.

Mother and a grandfather failed to state a claim for which relief can be granted for civil conspiracy against the assistant district attorney general because there was no implied cause of action in Tenn. Const. art. I, § 17 based on violations of the Tennessee Constitution. Odom v. Claiborne Cnty., 498 S.W.3d 882, 2016 Tenn. App. LEXIS 212 (Tenn. Ct. App. Mar. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 564 (Tenn. Aug. 18, 2016).

NOTES TO DECISIONS

1. Right to Bail.

Tenn. Const. art. I, § 15 applies to all capital crimes and the courts are without the right or power to read an exception into it. State ex rel. Holloway v. Joyner, 173 Tenn. 298, 117 S.W.2d 1, 1937 Tenn. LEXIS 28, 118 A.L.R. 1113 (1938).

The right to bail is made mandatory by Tenn. Const. art. I, § 15 in all except capital cases. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192, 1952 Tenn. LEXIS 287, 29 A.L.R.2d 941 (1952).

Prisoner who had forfeited prior bond was entitled under Tenn. Const. art. I, § 15 to second bond pending trial of same case. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192, 1952 Tenn. LEXIS 287, 29 A.L.R.2d 941 (1952).

Trial court erred in denying pretrial bail after defendant garnered additional charges while on bail because holding her without bail pending trial violated the constitutional guarantee to pretrial bail and the trial court had to address the statutory factors as to additional conditions or bail that might be required to reasonably assure the appearance of defendant while at the same time protecting the safety of the public. State v. Burgins, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1089 (Tenn. Crim. App. Dec. 3, 2014), rev'd, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

Trial court erred in raising defendant's bond after he filed a motion to reduce bond because, while the trial court properly considered the statutory factors, the judge's actions—setting an excessively high bond ($10,000,000) and then instructing defendant that his bond would be revoked if he made it —amounted to a complete denial of pretrial bond in violation of the state constitution. Pretrial bond was to ensure a defendant's appearance in court, NOT to ensure that punishment was meted out to a person who was not yet convicted, and, while the trial judge disagreed with defendant's constitutional right to be bailable, he was nevertheless duty bound to follow the law. State v. Kizzie, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1077 (Tenn. Crim. App. Dec. 3, 2015).

Conclusion that a police officer violated Metropolitan Nashville Police Department policy was not arbitrary or capricious and was supported by substantial and material evidence because the officer knowingly deprived a bonding agent of his right to conduct lawful business without improper interference from the police; the officer's telephone call to the agent caused him to not bond out an arrestee, and it was the officer's intention to deprive the arrestee of his right to bail. Davis v. Civil Serv. Comm'n of the Metro. Gov't, — S.W.3d —, 2019 Tenn. App. LEXIS 250 (Tenn. Ct. App. May 21, 2019).

Irrespective of whether the action was civil or criminal in nature, the framers intended for the constitutional provision to apply to any action resulting in pretrial imprisonment; allowing the court the discretion to require a cash-only appearance bond where a bond with sufficient sureties is a reasonable option would violate the spirit of the constitution, which is to limit the court's discretion in determining who is entitled to pretrial release. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

Trial court violated a father's constitutional rights because it imposed a cash-only appearance bond after the father arrested and incarcerated pursuant to an order of attachment; the trial court erred by not considering the constitutional constraints in requiring a cash-only bond. State ex rel. Haynes v. Daugherty, — S.W.3d —, 2019 Tenn. App. LEXIS 449 (Tenn. Ct. App. Sept. 10, 2019).

2. —Bail in Capital Offenses.

Capital offenses of whatsoever nature, including rape, are bailable; indictment by grand jury does not constitute evident proof or great presumption, and accused is entitled to a hearing on such issue. State ex rel. Holloway v. Joyner, 173 Tenn. 298, 117 S.W.2d 1, 1937 Tenn. LEXIS 28, 118 A.L.R. 1113 (1938).

Under Tenn. Const. art. I, § 15, a defendant indicted for rape is entitled to bail upon a showing that the proof is not evident or the presumption great. State ex rel. Holloway v. Joyner, 173 Tenn. 298, 117 S.W.2d 1, 1937 Tenn. LEXIS 28, 118 A.L.R. 1113 (1938).

On application for bail by defendant who was charged with capital offense but not yet indicted state was required to carry burden of proof and offer evidence to sustain right of state to retain prisoner in custody. State ex rel. Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437, 1969 Tenn. LEXIS 449 (1969).

Since no specific statutory method is provided to review action of court in denying bail in capital cases, the statutory writ of certiorari as a substitute for appeal can be invoked. State ex rel. Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437, 1969 Tenn. LEXIS 449 (1969).

3. —Bail Pending Appeal.

While the right of a prisoner to bail under this section is lost on appeal, the common law power of the court to admit bail in its discretion exists but must be exercised with great caution, especially in those cases in the grade of first degree murder. Hicks v. State, 179 Tenn. 601, 168 S.W.2d 781, 1942 Tenn. LEXIS 59 (1942).

4. —Waiver or Forfeiture of Right.

The right to bail in all cases has been regarded by all the courts as fundamental. The forfeiture to the right to bail is never looked upon with favor by any judicial tribunal. While it is doubtless true that one accused of crime may forfeit his constitutional right to bail, such a forfeiture, waiver or abandonment of the right should be made to appear by affirmative evidence before there can be any denial of the right. It should not rest in doubt. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192, 1952 Tenn. LEXIS 287, 29 A.L.R.2d 941 (1952).

One accused of felony did not waive or forfeit his right to bail by reason of his failure to comply with the conditions of a prior bail bond upon which a forfeiture had been taken. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192, 1952 Tenn. LEXIS 287, 29 A.L.R.2d 941 (1952).

When defendant engaged in criminal conduct while released on bond, the Tennessee trial court was required to conduct a bail revocation hearing to determine whether defendant forfeited the constitutional right to pretrial bail in compliance with the procedure established to meet the constitutional due process requirements. State v. Burgins, 464 S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. Apr. 7, 2015).

5. —Effect of Conviction.

Constitutional guaranty of bail is lost after conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

6. Habeas Corpus.

Petitioner did not have constitutional right to bail pending appeal from dismissal of petition for writ of habeas corpus attacking validity of conviction. State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 1965 Tenn. LEXIS 577 (1965).

Although the writ of habeas corpus is a high, prerogative common law writ, practice in regard thereto is governed by statute with such statutes not being intended to detract from the force of the writ but rather to add to its efficiency. Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656, 1968 Tenn. LEXIS 505 (1968).

The provisions of former T.C.A. § 40-30-102 [repealed], concerning petitions for post-conviction relief, do not unconstitutionally suspend the writ of habeas corpus. Potts v. State, 833 S.W.2d 60, 1992 Tenn. LEXIS 424 (Tenn. 1992).

Habeas relief is available only when it appears from the face of the judgment or the record of the proceedings that a trial court was without jurisdiction to sentence a defendant or that a defendant's sentence of imprisonment or other restraint has expired. Wyatt v. State, 24 S.W.3d 319, 2000 Tenn. LEXIS 431 (Tenn. 2000).

Supreme court granted inmate's petition for writ of habeas corpus because the inmate's sentence was illegal and void; the inmate entered a guilty plea to child rape, and he could not be granted early release; the sentence was required to be served day by day. Smith v. Lewis, 202 S.W.3d 124, 2006 Tenn. LEXIS 837 (Tenn. 2006).

Where homicide was not a crime of infamy at the time petitioner committed the offense, the trial court lacked statutory authority to declare petitioner infamous; the resulting disenfranchisement of petitioner qualified as a restraint on liberty and therefore he was entitled to limited habeas corpus relief under Tenn. Const. art. I, § 15. May v. Carlton, 245 S.W.3d 340, 2008 Tenn. LEXIS 10 (Tenn. Jan. 18, 2008).

Where the trial court ordered defendant to serve his sentence for escape concurrently to his sentences for voluntary manslaughter and aggravated arson, in direct contravention of T.C.A. § 39-16-605(c) and Tenn. R. Crim. P. 32(c)(3)(B), he made a threshold showing that he was entitled to habeas corpus relief; the trial court erred by dismissing his petition for writ of habeas corpus under Tenn. Const. art. I, § 15. Summers v. Fortner, 267 S.W.3d 1, 2008 Tenn. Crim. App. LEXIS 117 (Tenn. Crim. App. Feb. 6, 2008).

Summary dismissal of an inmate's T.C.A. § 29-21-101 habeas corpus petition against the State was proper because, although the inmate claimed that, due to his physical and mental handicaps, he lacked the mental capacity to enter the pleas, he failed to state a cognizable ground for habeas corpus relief; proof that the inmate's pleas were not knowingly, voluntarily, and intelligently entered, for whatever reason, would have rendered the judgment voidable rather than void. Farner v. Sexton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. Aug. 10, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 914 (Tenn. Dec. 12, 2012), cert. denied, 185 L. Ed. 2d 842, 133 S. Ct. 1833, 569 U.S. 934, 2013 U.S. LEXIS 2875 (U.S. 2013).

Dismissal of an inmate's habeas corpus petition was proper because Johnson County was the proper county for the proceeding, being the county of the inmate's incarceration, the language of the indictment was identical to former T.C.A. § 39-2-603, the statutory provisions in effect at the time of the offenses, and the indictment referenced the appropriate statute, identified the victim, stated the date of the offenses, and alleged the essential elements of the offenses; an allegation of a material variance between the proof and the offense charged in the indictment, sufficiency of the evidence, and the absence of a grand jury foreman's signature on an indictment were not proper grounds for habeas corpus relief. The inmate was not allowed to use habeas proceedings as a means to raise and relitigate issues previously ruled upon. Metcalf v. Sexton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Aug. 20, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 844 (Tenn. Nov. 21, 2012), cert. denied, 184 L. Ed. 2d 772, 133 S. Ct. 995, 568 U.S. 1149, 2013 U.S. LEXIS 1011.

Inmate's habeas petition under Tenn. Const. art. I, § 15 was properly denied as: (1) the inmate's 50-year sentence was not illegal, even though it exceeded the maximum sentencing range for a Range I offender, because the sentence fell within the maximum punishment range of 60 years' authorized for Class X felony offenses such as second-degree murder under former T.C.A. §§ 39-2-211(b) and 39-2-212; and (2) the sentence was also not illegal as the 30 percent release eligibility did not convert the inmate's 50-year determinate sentence into an indeterminate sentence. Smith v. Steward, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 945 (Tenn. Crim. App. Nov. 19, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 254 (Tenn. Mar. 5, 2013), cert. denied, 186 L. Ed. 2d 203, 133 S. Ct. 2749, 569 U.S. 1010, 2013 U.S. LEXIS 4044 (U.S. 2013).

Habeas court properly denied petitioner habeas corpus relief due to the denial of pretrial and post-judgment jail credits because although it could affect the length of time petitioner was incarcerated, the failure to award post-judgment jail credit did not render the sentence illegal. Anderson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Feb. 5, 2016).

Habeas corpus court properly dismissed petitioner's application for a writ of habeas corpus because petitioner failed to show that the trial court was without jurisdiction to enter judgment since he had sufficient notice of the charges to defend at trial; the indictment cited the relevant drug statute and tracked the language of the drug-free school zone enhancement verbatim, and the language enabled petitioner to know the accusation to which an answer was required. Washington v. Lee, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. Sept. 12, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 27 (Tenn. Jan. 18, 2018).

Although petitioner did not have a right of appeal from the denial of a motion for an “Ex Parte Injunction and/or Show Cause Order,” because the trial court treated the motion as a petition for writ of habeas corpus, petitioner's appeal was properly before the court of criminal appeal, and it reviewed the merits of his claim. State v. Williams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 324 (Tenn. Crim. App. Apr. 26, 2018).

Trial court properly dismissed petitioner's motion for “Ex Parte Injunction and/or Show Cause Order,” which was considered as a petition for writ of habeas corpus, because the evidence did not preponderate against its finding that petitioner's conviction was voidable; the trial court found the judgment form was entered on the record and into the minutes of the court, and thus, it was presumed to have been received by the clerk's office but not properly file-stamped, which was a clerical error. State v. Williams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 324 (Tenn. Crim. App. Apr. 26, 2018).

7. Function of Writ.

The writ of habeas corpus cannot be made to serve the purpose of an appeal or writ of error. State ex rel. Jones v. West, 139 Tenn. 522, 201 S.W. 743, 1918 Tenn. LEXIS 2 (1918).

Habeas corpus may not be used as a substitute for or in lieu of appeal. State ex rel. Smith v. Bomar, 212 Tenn. 149, 368 S.W.2d 748, 1963 Tenn. LEXIS 407 (1963), cert. denied, Smith v. Bomar, 376 U.S. 915, 84 S. Ct. 670, 11 L. Ed. 2d 612, 1964 U.S. LEXIS 1849 (1964).

Habeas corpus may not be used to make a collateral attack against a valid judgment and conviction and this is especially true where the verdict of the jury and the judgment of the trial court has been reviewed by the Tennessee supreme court and found to be without error. State ex rel. Smith v. Bomar, 212 Tenn. 149, 368 S.W.2d 748, 1963 Tenn. LEXIS 407 (1963), cert. denied, Smith v. Bomar, 376 U.S. 915, 84 S. Ct. 670, 11 L. Ed. 2d 612, 1964 U.S. LEXIS 1849 (1964).

An inmate serving a state sentence in federal custody concurrent with a federal sentence was permitted to file for habeas corpus relief, and a trial court should not have dismissed his petition based on jurisdictional grounds; however, since he failed to document his assertion that a state sentence imposed was illegal due to the fact that he was on parole when the offenses were committed, summary dismissal of the petition was proper. Faulkner v. State, 226 S.W.3d 358, 2007 Tenn. LEXIS 370 (Tenn. Apr. 27, 2007).

8. Procedure.

Petitioner's notice of appeal was untimely because it was filed more than thirty days after the judgment became final; however, the interests of justice permitted the waiver of the notice requirement because petitioner was not notified of the judgment denying his petition for a writ of habeas corpus, and the habeas corpus court's attempt to re-enter the order confirmed the factual basis of petitioner's request. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

9. Cognizable Claims.

Inmate failed to allege a ground for which habeas corpus relief could be granted where the habeas corpus petition failed to demonstrate that the judgment was void; a sentence was not illegal when defendant expressly agreed to a particular offender classification and the sentence was within the statutory limits fixed for the offense of conviction. Walker v. State, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 4, 2005), cert. denied, Walker v. Tennessee, 546 U.S. 1045, 126 S. Ct. 765, 163 L. Ed. 2d 594, 2005 U.S. LEXIS 8787 (Nov. 28, 2005).

Allegations of defendant's habeas corpus petition and attached documents failed to establish that the judgment classifying him as a persistent offender and imposing a nine-year, Range III, sentence for burglary was void under Tenn. Const. art. I, § 15 and T.C.A. § 29-21-101. Edwards v. State, 269 S.W.3d 915, 2008 Tenn. LEXIS 611 (Tenn. Sept. 18, 2008).

Habeas court properly denied petitioner a writ of habeas corpus because petitioner's claims went to the form of the indictment, rather than the substance, and thus, petitioner was required to raise any objections prior to trial; even if petitioner could show the indictment was defective because it was not endorsed by the foreperson or endorsed as “a true bill,” which would be contrary to the habeas court's findings, such a claim did not present a proper ground for habeas corpus relief. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

Inmate's habeas petition was properly dismissed because the inmate's claim that a trial court constructively amended the inmate's indictment without the inmate's consent by striking the word “recklessly” from a first degree felony murder charge did not show the inmate's judgments were void or the inmate's sentences had expired, as required for a habeas petition. Wilson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 816 (Tenn. Crim. App. Nov. 2, 2016).

Defendant's argument that defendant was entitled to habeas corpus relief, because defendant's conviction for simple possession was void in that the trial court unlawfully relied on convictions from other states to enhance the sentence, was not cognizable as defendant raised a sufficiency argument regarding the increase in classification for defendant's conviction. Graham v. Perry, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 867 (Tenn. Crim. App. Nov. 16, 2016).

Trial court did not err in summarily dismissing petitioner's application for a writ of habeas corpus because petitioner's challenge to the sufficiency of the evidence was not properly reviewed via a habeas corpus petition; petitioner waived any issue with regard to sufficiency when he entered a guilty plea. Delk v. Perry, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 992 (Tenn. Crim. App. Nov. 30, 2017).

Trial court did not err in summarily dismissing petitioner's application for a writ of habeas corpus because petitioner's complaint with regard to the calculation of pretrial jail credits was not properly resolved in a petition for habeas relief; even if the jail credits issue were proper in a habeas proceeding, the record was incomplete as it did not contain the corrected judgment about which petitioner complained. Delk v. Perry, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 992 (Tenn. Crim. App. Nov. 30, 2017).

Trial court did not err in summarily dismissing petitioner's application for a writ of habeas corpus because petitioner's claim that the State breached the plea agreement was not cognizable in a petition for writ of habeas corpus. Delk v. Perry, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 992 (Tenn. Crim. App. Nov. 30, 2017).

10. Void Judgments.

Because the inmate affirmatively requested a jury instruction on the offense of aggravated assault, even though he was in error in believing that it was a lesser-included offense of attempted first-degree murder, he effectively agreed to amend the indictment to include aggravated assault; therefore, the trial court had jurisdiction to convict the inmate of aggravated assault, his conviction was not void, and he was not entitled to habeas corpus relief. Demonbreun v. Bell, 226 S.W.3d 321, 2007 Tenn. LEXIS 452 (Tenn. May 8, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 529 (Tenn. May 25, 2007).

Because the statutory defense of T.C.A. § 39-12-105(c) could be waived in a voluntary guilty plea as it was non-jurisdictional, the inmate stood convicted at most by a voidable, but not void, judgment; therefore, he was not entitled to habeas corpus relief from his conviction of attempted especially aggravated kidnapping under T.C.A. § 39-13-305. State v. Cook, 250 S.W.3d 922, 2007 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 17, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 39 (Tenn. Jan. 28, 2008).

Inmate convicted of four counts of rape who was sentenced as a Range II multiple offender to a total effective sentence of 80 years rather than as a multiple rapist under T.C.A. § 39-13-523, was not entitled to habeas corpus relief based on the sentence being illegal and void. The multiple rapist designation arose by operation of law, so the error was merely clerical, and the habeas court did not err in summarily dismissing the inmate's petition. Cantrell v. Easterling, — S.W.3d —, 2010 Tenn. Crim. App. LEXIS 216 (Tenn. Crim. App. Mar. 10, 2010), rev'd, 346 S.W.3d 445, 2011 Tenn. LEXIS 746 (Tenn. Aug. 1, 2011).

Petitioner was not entitled to habeas corpus relief in a case where it was contended that he was illegally sentenced in violation of Blakely v. Washington, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 542 U.S. 296, 2004 U.S. LEXIS 4573 (2004); even if a violation of Blakely was shown, this rendered the judgments voidable, rather than void. Thompson v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 207 (Tenn. Crim. App. Mar. 21, 2016).

11. Use as Affecting Custody of Children.

As it affects the custody of infants, the writ of habeas corpus rests on the assumption of a paramount right in the state to dispose of the children as their best interests require. The legal rights of a parent are very gravely considered, but are not enforced to the disadvantage of the child. State ex rel. Jones v. West, 139 Tenn. 522, 201 S.W. 743, 1918 Tenn. LEXIS 2 (1918).

After the juvenile court has entered judgment awarding custody of a child, the question determined by such court cannot be litigated again in a habeas corpus proceeding, between the same parties and on the same state of facts, though the writ may be awarded if a considerable time has elapsed since the juvenile court order or if there has been a change in the condition of the parties. State ex rel. Jones v. West, 139 Tenn. 522, 201 S.W. 743, 1918 Tenn. LEXIS 2 (1918).

12. Expiration of Sentence.

Where defendant filed a habeas corpus petition on the basis that her sentence had expired because four years elapsed between the day she was sentenced and the date she was ordered to report to jail, she was not entitled to relief since, because she had not been taken into custody, the sentence had not expired. Her sentence began to run on the date she reported to jail, and the fact that the sheriff waited four years to notify defendant because there was no room for her could not defeat the execution of valid judgment. Wilson v. State, 882 S.W.2d 361, 1994 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. 1994).

Use of a petitioner's challenged prior criminal convictions to enhance a sentence he is currently serving does not provide adequate grounds to grant habeas corpus relief where said challenged convictions and sentences have expired prior to his filing for habeas corpus relief. Such prior convictions do not comprise a restraint on a petitioner's liberty for purposes of the habeas corpus statute. Benson v. State, 153 S.W.3d 27, 2004 Tenn. LEXIS 1111 (Tenn. 2004), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 7 (Tenn. Jan. 14, 2005).

13. Want of Territorial Jurisdiction.

When a judgment of conviction is alleged to be void for want of territorial jurisdiction, that fact must appear clearly and indisputably either on the face of the judgment or in the original trial record before a writ of habeas corpus can issue from a Tennessee court. State v. Ritchie, 20 S.W.3d 624, 2000 Tenn. LEXIS 156 (Tenn. 2000).

14. Rearrest of Person Discharged on Habeas Corpus.

Where the judgment of conviction is void, and the convict is, for that reason, released from imprisonment on habeas corpus before another competent court, the ex parte order of the judge of the court by which he was so convicted for his rearrest and detention is void, and affords no protection to the officer executing it, where it appears upon the face of the order that the arrest is to be made in disregard and contempt of the judgment of the court having so discharged the convict. McLendon v. State, 92 Tenn. 520, 22 S.W. 200, 1893 Tenn. LEXIS 8, 21 L.R.A. 738 (1893).

15. Writ Denied.

Where petitioner challenged his convictions for the failure of the district attorney general to endorse the indictments, the trial court did not err in summarily dismissing the habeas petition under Tenn. Const. art. I, § 15; objections based upon the indictment had be raised prior to trial or they were deemed waived. Edwards v. Lindamood, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 36 (Tenn. Crim. App. Jan. 17, 2007), appeal denied, Edwards v. State, — S.W.3d —, 2007 Tenn. LEXIS 404 (Tenn. Apr. 16, 2007), cert. denied, 169 L. Ed. 2d 127, 128 S. Ct. 188, 552 U.S. 876, 2007 U.S. LEXIS 9847 (2007).

Appellant convicted on guilty pleas received concurrent sentences of thirty-five years for second degree murder, thirteen years for especially aggravated robbery, and two years for felon in possession of a handgun; appellant was not entitled to habeas relief, as he failed to show that he was not sentenced pursuant to the terms of the plea agreements. Anderson v. Parker, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 121 (Tenn. Crim. App. Feb. 8, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 757 (Tenn. Aug. 20, 2007), cert. denied, 128 S. Ct. 1668, 170 L. Ed. 2d 370, 552 U.S. 1266, 2008 U.S. LEXIS 2540 (U.S. 2008).

Circuit court's summary dismissal of defendant's habeas corpus petition was proper because a court could properly dismiss a petition for habeas corpus relief without appointment of counsel and without a hearing when the allegations in the petition did not demonstrate that the judgment was void or the sentence expired, and there was nothing on the face of the judgment or in the record of the underlying proceedings that indicated the convicting court was without jurisdiction to sentence defendant or that defendant's sentence had expired. Hughes v. Parker, — S.W.3d —, 2008 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 14, 2008), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 817 (Tenn. Oct. 27, 2008), cert. denied, 556 U.S. 1247, 129 S. Ct. 2407, 173 L. Ed. 2d 1314, 2009 U.S. LEXIS 3512 (U.S. 2009).

16. Petition Properly Dismissed.

Habeas corpus court's summary dismissal of a petition for habeas corpus relief was proper because the petitioner did not establish that the petitioner's judgment was void or that the petitioner's sentence had expired. Kotewa v. Jones, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 19, 2015), appeal denied, Kotewa v. State, — S.W.3d —, 2015 Tenn. LEXIS 457 (Tenn. May 19, 2015).

Habeas corpus court did not err when it summarily dismissed a petition for a writ of habeas corpus, in which the petitioner alleged that the trial court improperly considered the petitioner's status as a parolee to enhance the petitioner's sentence, because the appellate court was unable to ascertain any illegality in the sentencing procedure of the trial court. Moreover, a challenge to the trial court's application of an enhancement factor was not a proper subject for habeas corpus relief. Crawford v. Holloway, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. June 26, 2015).

Indictment charging defendant with especially aggravated kidnapping was valid and, thus, the summary dismissal of defendant's second petition for habeas corpus relief was warranted, because the victim was defendant's stepchild, and, as such, defendant was not a “parent” as statutorily defined, and the Goodman allegations were not required in the indictment; even if defendant was a “parent,” the superseding indictment included the language articulated in Goodman of “force, threat, or fraud.” Mitchell v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. Oct. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 226 (Tenn. Mar. 22, 2016).

Trial court did not err in summarily dismissing petitioner's application for a writ of habeas corpus because petitioner failed to provide adequate documentation to support his allegations; the record merely contained the cover pages for the indictments, and the indictment itself did not appear in the technical record Delk v. Perry, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 992 (Tenn. Crim. App. Nov. 30, 2017).

Petitioner failed to establish entitlement to habeas corpus relief because he simply repackaged his prior arguments regarding venue, which were fully addressed by the court of criminal appeals in petitioner's prior appeal affirming the habeas corpus court's dismissal. Rivas v. Lee, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 280 (Tenn. May 17, 2018).

It was proper to dismiss a petition for a writ of habeas corpus because petitioner could not establish that his judgments were void; the guilty plea proceedings took place in the Criminal Court for Hancock County, and the trial court addressed the matters in Hancock County and informed petitioner he was charged and pleading guilty in two counts in Hancock County. Rivas v. Lee, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 100 (Tenn. Crim. App. Feb. 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 280 (Tenn. May 17, 2018).

It was no error to summarily dismiss defendant's second habeas corpus petition because (1) a claim that it was an ex post facto violation to retroactively apply sex offender registration requirements had been rejected on appeal of the dismissal of a first petition, in which it was held Tennessee's 1994 Sexual Offender Registration and Monitoring Act was nonpunitive in nature, and the Tennessee Supreme Court had so held in another case, and (2) the judgment in the case did not reflect an illegal or void sentence was imposed. Wiggins v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Mar. 8, 2019).

17. Writ Properly Denied.

Trial court properly denied petitioner habeas relief where his claims regarding the knowing and voluntary nature of his guilty plea would have rendered his judgment voidable, not void, and thus, his allegations were not cognizable claim for habeas corpus relief. Kratochvil v. Holloway, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 974 (Tenn. Crim. App. Oct. 27, 2014), cert. denied, Kratochvil v. Tennessee, 192 L. Ed. 2d 173, 135 S. Ct. 2387, — U.S. —, 2015 U.S. LEXIS 3711 (U.S. 2015).

Claim that the State failed to provide notice of its intent to seek enhanced punishment would have rendered the judgment voidable, and thus, did not afford petitioner habeas corpus relief. Kratochvil v. Holloway, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 974 (Tenn. Crim. App. Oct. 27, 2014), cert. denied, Kratochvil v. Tennessee, 192 L. Ed. 2d 173, 135 S. Ct. 2387, — U.S. —, 2015 U.S. LEXIS 3711 (U.S. 2015).

Habeas court properly denied petitioner a writ of habeas corpus because the indictment was not void; on direct appeal, the court of appeals observed that petitioner was transferred and indicted as an adult, which was the law of the case, and it concluded that the issue was waived because petitioner did not file a motion for an acceptance hearing within ten days of his transfer to criminal court. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

Habeas court properly denied petitioner a writ of habeas corpus because the indictments were sufficient to allow the petitioner to know which charges he must answer for, to provide the trial court with adequate jurisdiction to enter a judgment, and to protect petitioner from double jeopardy. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

Habeas court properly denied petitioner a writ of habeas corpus because there was nothing illegal about petitioner's sentence since he received a sentence of life with the possibility of parole. Grooms v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 606 (Tenn. July 21, 2015), cert. denied, Grooms v. Tennessee, 194 L. Ed. 2d 218, 136 S. Ct. 1216, — U.S. —, 2016 U.S. LEXIS 1524 (U.S. 2016).

Habeas court properly denied petitioner's application for a writ of habeas corpus because despite the minor defect in the indictment, the indictment satisfied the minimum requirements; Borner v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 21, 2018).

Inmate was not entitled to habeas relief on grounds a trial court lacked jurisdiction to clarify the inmate's sentence was consecutive because the inmate's sentence for a felony committed while on parole for a felony was consecutive whether or not a trial court's judgment so provided. Yates v. Perry, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. Feb. 26, 2020).

NOTES TO DECISIONS

1. In General.

The provisions of Tenn. Const. art. VI, § 14, are manifestly an amplification of the fundamental guarantee against the imposition of excessive fines found in Tenn. Const. art. I, § 16. State v. Durso, 645 S.W.2d 753, 1983 Tenn. LEXIS 768 (Tenn. 1983).

Tenn. Const. art I, § 6 is subject to a more expansive interpretation than U.S. Const. amend. 8, and, accordingly, the Tennessee constitution mandates a proportionality inquiry even in noncapital cases. State v. Smith, 48 S.W.3d 159, 2000 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. 2000).

Where statute did not provide for a maximum fine, the court was required to first apply the principles of the Tennessee Criminal Sentencing Reform Act of 1989, T.C.A. § 40-35-101 et seq., to determine whether the fine imposed by the jury was excessive before analyzing the constitutional validity of the fine. State v. Taylor, 70 S.W.3d 717, 2002 Tenn. LEXIS 145 (Tenn. 2002).

2. Power and Duty of Courts.

While our supreme court has never declared an act of the general assembly to be void under this constitutional provision, forbidding excessive bail, excessive fines, and cruel and unusual punishments, still it is the clear weight of modern authority that the courts have such power, and, in a proper case, it is their duty, to declare legislative acts void under this constitutional provision. Brinkley v. State, 125 Tenn. 371, 143 S.W. 1120, 1911 Tenn. LEXIS 34 (Tenn. Dec. 1911).

3. Basis of Penalty or Punishment.

The punishment should be proportioned to the offense and should be made to fit the crime and not the offender. Cason v. State, 160 Tenn. 267, 23 S.W.2d 665, 1929 Tenn. LEXIS 102 (1930).

Neither the United States nor the Tennessee constitution prohibits a reviewing court from upholding a death sentence that is based in part on an invalid aggravating circumstance. To guarantee that a defendant will receive an individualized sentence, however, the reviewing court must either reweigh the aggravating and mitigating evidence or conduct a harmless-error review. Hartman v. State, 896 S.W.2d 94, 1995 Tenn. LEXIS 71 (Tenn. 1995).

Forfeiture of property is not unconstitutionally excessive where offense is grave, owner is found most culpable, effect of forfeiture on family is moderate, and use of property in crime was deliberate and extensive. Stuart v. State Department of Safety, 963 S.W.2d 28, 1998 Tenn. LEXIS 96 (Tenn. 1998).

In a capital case, the sentences must be determined based upon the circumstances of each individual homicide and each individual defendant. State v. Howell, 34 S.W.3d 484, 2000 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 539 (Tenn. Sept. 25, 2000), cert. denied, Sturgill v. Tennessee, 149 L. Ed. 2d 478, 121 S. Ct. 1614, 532 U.S. 977, 2001 U.S. LEXIS 2998 (2001).

In determining whether aggravating circumstances might be vicariously applied to defendants who did not actually fire the fatal shots, the court should consider whether their degree of participation in the felony was “major” and whether they displayed reckless indifference to human life. State v. Howell, 34 S.W.3d 484, 2000 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 539 (Tenn. Sept. 25, 2000), cert. denied, Sturgill v. Tennessee, 149 L. Ed. 2d 478, 121 S. Ct. 1614, 532 U.S. 977, 2001 U.S. LEXIS 2998 (2001).

Factors relevant to the harshness of a penalty include the type of penalty imposed and, if a term of imprisonment, the length of the term and the availability of parole of other forms of early release; the mandatory nature of a penalty will not alone raise an inference of gross disproportionality or render the penalty unconstitional. State v. Smith, 48 S.W.3d 159, 2000 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. 2000).

Defendant's sentence did not constitute cruel and unusual punishment because there was no inference of gross disproportionality; defendant's effective one-hundred seventy-six-year sentence was not grossly disproportionate to his crimes of trafficking for sexual servitude, attempt to commit trafficking for sexual servitude, especially aggravated sexual exploitation of a minor, aggravated sexual exploitation of a minor, sexual exploitation of a minor, and statutory rape State v. Clemons, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 277 (Tenn. Crim. App. Apr. 17, 2015).

There was no inference of gross disproportionality in a 100 year sentence for attempted first degree murder, especially aggravated robbery, two counts of aggravated robbery, and two counts of especially aggravated assault, as defendant provided the accomplice with the gun used to shoot an unarmed off-duty police officer during a robbery and waited in a vehicle to assist the accomplice in making his escape. In addition, defendant had a history of violent felonies and was on parole. State v. Wallace, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 25, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 46 (Tenn. Jan. 20, 2017).

Where defendant informed the victim about the nature of sexual encounters, instructed the victim in masturbation mechanics, provided sex toys and lubricants, and, ultimately, perpetrated sexual offenses upon the 10 to 12-year-old victim on as many as 52 occasions over a two-year period, the 81-year sentence was not grossly disproportionate to the crimes committed, such as would support a constitutional violation by enforcement of the sentence. State v. Ledbetter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 106 (Tenn. Crim. App. Feb. 20, 2020).

4. Fines and Imprisonment.

Suit for this forfeiture must be brought in the circuit court; for a justice of the peace has no jurisdiction of it. Stover v. Lasater, 76 Tenn. 631, 1881 Tenn. LEXIS 52 (1881)But chancery may have jurisdiction of such suitMcCreary v. First Nat'l Bank, 109 Tenn. 128, 70 S.W. 821, 1902 Tenn. LEXIS 63 (1902).

Sentence to penitentiary for life under the habitual criminal statute with provision that the prisoner shall not be eligible for parole does not constitute cruel and unusual punishment. Canupp v. State, 197 Tenn. 56, 270 S.W.2d 356, 1954 Tenn. LEXIS 452 (1954).

Punishment for second degree murder within the terms provided by the statute did not constitute excessive, cruel or unusual punishment. Hardin v. State, 1962 Tenn. 399, 210 Tenn. 116, 355 S.W.2d 105, 1962 Tenn. LEXIS 399 (1962), rehearing denied, 210 Tenn. 116, 356 S.W.2d 595, 1962 Tenn. LEXIS 416 (1962).

Fact that defendant was sentenced to not more than five years in the penitentiary while codefendant convicted of same crime was sentenced to six months in the county workhouse did not amount to cruel and unusual punishment where both sentences were within the terms of the statute and facts were such that jury could have concluded that defendant was the one who actually conceived and perpetrated the crime with codefendant only as an aider and abettor. McGowen v. State, 221 Tenn. 442, 427 S.W.2d 555, 1968 Tenn. LEXIS 474 (1968).

The habitual criminal law is not unconstitutional as an infliction of cruel and unusual punishment in violation of U.S. Const. amend. 8 nor does it violate Tenn. Const. art. I, § 16. Pearson v. State, 521 S.W.2d 225, 1975 Tenn. LEXIS 682 (Tenn. 1975).

A minimum fine of $10,000 and a maximum fine of $50,000 for a misdemeanor charge of possession of obscene matter with intent to distribute, and a minimum sentence of 60 days imprisonment for distributing obscene matter in violation of § 39-6-1104 (repealed) are not excessive and violative of the U.S. Const. amend. 8 and Tenn. Const. art. I, § 16 as cruel and unusual punishments. State v. Summers, 692 S.W.2d 439, 1985 Tenn. Crim. App. LEXIS 3007 (Tenn. Crim. App. 1985).

Forty-five day jail sentence for driving under the influence did not violate state and federal constitutional prohibitions against cruel and unusual punishment, despite defendant's claim that he was claustrophobic and that incarceration would exacerbate his mental and physical conditions. State v. McKee, 803 S.W.2d 705, 1990 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. 1990).

Defendant's 20-year sentence was not grossly disproportionate to his crime of aggravated sexual battery on an eight-year-old victim so as to constitute cruel and unusual punishment under the U.S. Const. amend. 8 or Tenn. Const. art. I, § 16. State v. Harris, 844 S.W.2d 601, 1992 Tenn. LEXIS 723 (Tenn. 1992).

Imposition of life term under former habitual criminal statute for recidivist forgers did not constitute cruel and unusual punishment. State v. Russell, 866 S.W.2d 578, 1991 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. 1991).

There was no violation of excessive fines clause in forfeiture of drug proceeds because there was no entitlement to illegally obtained proceeds. Stuart v. State Department of Safety, 963 S.W.2d 28, 1998 Tenn. LEXIS 96 (Tenn. 1998).

In accordance with the Drug-Free School Zone Act (T.C.A. § 39-17-432), and in accordance with defendant's career offender status, the defendant's sentence of 60 years incarceration for possession of .5 grams of cocaine with intent to sell, did not constitute cruel and unusual punishment. State v. Smith, 48 S.W.3d 159, 2000 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. 2000).

Chancery court erred in affirming the forfeiture of an owner's truck after he was arrested and charged with driving on a revoked license, third offense, because the seizure of the truck constituted an excessive fine where, while the owner was driving the truck when he was stopped, the value of his truck was $8,500, there was no evidence in the record of any convictions for driving on a revoked license prior to the owner being charged, his driving privileges had been revoked as a result of being convicted of driving under the influence, he was eligible to have his driving privileges reinstated, and he was not involved in any other criminal conduct. Thurman v. Tenn. Dep't of Safety & Homeland Sec., — S.W.3d —, 2017 Tenn. App. LEXIS 457 (Tenn. Ct. App. July 7, 2017).

5. —Habitual Criminals.

A mandatory life sentence, imposed because the defendant is a habitual criminal, is not per se cruel or unusual punishment within the meaning of U.S. Const. amend. 8, or Tenn. Const. art. I, § 16. State v. Dobbins, 754 S.W.2d 637, 1988 Tenn. Crim. App. LEXIS 296 (Tenn. Crim. App. 1988).

6. Penalties.

Provision of delinquent tax law that the revenue agent shall receive 15 percent penalty on the gross amount of taxes, interest, and penalties collected is not violative of the prohibition of Tenn. Const. art. I, § 16 against excessive fines or penalties. Sherrill v. Thomason, 145 Tenn. 499, 238 S.W. 876, 1921 Tenn. LEXIS 91 (1922).

Remedies by which delinquent taxes are to be collected are under the control of the legislature. It may modify an existing remedy, abolish such remedy altogether and substitute a new one or may add a cumulative remedy for enforcement of the state's right in such matters. Sherrill v. Thomason, 145 Tenn. 499, 238 S.W. 876, 1921 Tenn. LEXIS 91 (1922).

Tenn. Const. art. I, § 16 places no greater restriction on the punishments that may be imposed by this state than does federal constitution. Cozzolino v. State, 584 S.W.2d 765, 1979 Tenn. LEXIS 469 (Tenn. 1979).

This state is not prohibited from imposing the death penalty in the manner set forth in § 39-2-202 et seq. (repealed) by the restrictions placed on it by the U.S. Const. amends. 8 and 14, and by Tenn. Const. art. I, §§ 9 and 16. Houston v. State, 593 S.W.2d 267, 1980 Tenn. LEXIS 392 (Tenn. 1979), cert. denied, Houston v. Tennessee, 449 U.S. 891, 101 S. Ct. 251, 66 L. Ed. 2d 117 (1980), overruled, State v. Brown, 836 S.W.2d 530, 1992 Tenn. LEXIS 401 (Tenn. 1992).

There is nothing in either the state or the federal constitution, historically or otherwise, which precludes the imposition of the death penalty in accordance with the procedures and under the circumstances provided for in Tenn. Const. art. I, § 16. State v. Austin, 618 S.W.2d 738, 1981 Tenn. LEXIS 396 (Tenn. 1981), cert. denied, Austin v. Tennessee, 454 U.S. 1128, 102 S. Ct. 980, 71 L. Ed. 2d 116, 102 S. Ct. 981, 71 L. Ed. 2d 117, 1981 U.S. LEXIS 3011 (1981).

The fact that appellant himself did not pull the trigger or personally commit the homicide did not render the sentence of death against him disproportionate. State v. Austin, 618 S.W.2d 738, 1981 Tenn. LEXIS 396 (Tenn. 1981), cert. denied, Austin v. Tennessee, 454 U.S. 1128, 102 S. Ct. 980, 71 L. Ed. 2d 116, 102 S. Ct. 981, 71 L. Ed. 2d 117, 1981 U.S. LEXIS 3011 (1981).

Where defendant's life sentence for armed robbery fell within the limits prescribed by statute at the time of the offense, it did not violate the constitutional prohibition against cruel and unusual punishment. State v. Painter, 614 S.W.2d 86, 1981 Tenn. Crim. App. LEXIS 327 (Tenn. Crim. App. 1981).

The following conditions and practices amount to cruel and unusual punishment: (1) Double-celling inmates in crowded conditions; (2) Confinement of any inmate for more than one week's duration in a cell not equipped with hot water; (3) Confinement of inmates in buildings unfit for human habitation; (4) The failure to maintain minimum sanitary conditions in the food storage, preparation and service areas; (5) The failure to adequately protect inmates from the likelihood of violent attack; (6) The failure to provide minimally adequate medical care for inmates; and (7) The confinement of inmates in segregation status for more than one week without any opportunity for physical exercise. Grubbs v. Bradley, 552 F. Supp. 1052, 1982 U.S. Dist. LEXIS 16298 (M.D. Tenn. 1982).

Where defendant received death sentence following first degree murder conviction, the aggravating circumstance — the defendant employed another to commit the murder for remuneration or the promise of remuneration — did not duplicate the elements of the offense, even incorporating the criminal responsibility statutes and therefore constitutional narrowing was accomplished. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

When a defendant is convicted of first-degree felony murder, genuine narrowing as required by Tenn. Const. art. I, § 16 and U.S. Const. amend. 8, is not accomplished by the broad definition of first-degree felony murder in T.C.A. § 39-13-202 (but see 1995 amendment); thus, the aggravating circumstance set out in T.C.A. § 39-13-204(i)(7) (but see 1995 amendment), which merely duplicates the elements of the offense and does not accomplish the genuine narrowing required by the constitution, may not be relied upon by the state to seek imposition of the death penalty. State v. Bigbee, 885 S.W.2d 797, 1994 Tenn. LEXIS 277 (Tenn. 1994).

The holding of State v. Middlebrooks, 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (1992), that when a defendant is convicted of first-degree murder solely on the basis of felony murder, the felony murder aggravating circumstance in T.C.A. § 39-13-204(i)(7) (but see 1995 amendment) did not narrow the class of death-eligible murderers sufficiently and, thus, was unconstitutional, was applied retroactively under the rule in Meadows v. State, 849 S.W.2d 748, 1993 Tenn. LEXIS 49 (1993). Barber v. State, 889 S.W.2d 185, 1994 Tenn. LEXIS 276 (Tenn. 1994), cert. denied, Barber v. Tennessee, 513 U.S. 1184, 115 S. Ct. 1177, 130 L. Ed. 2d 1129, 1995 U.S. LEXIS 907 (1995).

Tennessee's lethal injection protocol under T.C.A. § 40-23-114 did not amount to cruel and unusual punishment under U.S. Const. amend. VIII and Tenn. Const. art. I, § 16 because there is overwhelming evidence that lethal injection, which is commonly thought to be the most humane form of execution, is consistent with contemporary standards of decency; further, although injection of two of the drugs would alone cause extreme pain, a dosage of a third would cause nearly immediate unconsciousness and the inmate would feel no pain prior to death. Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 2005 Tenn. LEXIS 828 (Tenn. 2005), cert. denied, 547 U.S. 1147, 126 S. Ct. 2288, 164 L. Ed. 2d 813, 2006 U.S. LEXIS 3970 (2006).

Defendant's sentence of 41 years for reckless aggravated assault, aggravated assault, criminal attempt to intentionally kill a police dog, theft of property over $ 1,000, and evading arrest, was not disproportionate to the crimes. Defendant stole a 62-inch television set from a business, tried to drive off with the business owner clinging to his back, rammed a police car as the officers attempted to get out of the way, and stabbed a police dog 10 times, nearly killing him. State v. Hayes, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 19, 2011), appeal dismissed, — S.W.3d —, 2011 Tenn. LEXIS 1129 (Tenn. Nov. 16, 2011), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 87 (Tenn. Jan. 16, 2015).

Suspension of a sexually oriented nightclub's license for 31 days following an entertainer's violation of a local ordinance was not excessive where the penalty was issued to the club on the basis that the entertainer both exposed specified anatomical areas, and had physical contact with a customer in a way arguably involving specified sexual activities, in direct violation of the local ordinance, the local government had a substantial interest in regulating this conduct, and a violation of the provisions regulating this conduct was serious, regardless of any monetary harm caused to the government. Howell v. Metro. Sexually Oriented Bus. Licensing Bd., 466 S.W.3d 88, 2014 Tenn. App. LEXIS 721 (Tenn. Ct. App. Nov. 5, 2014), appeal dismissed, — S.W.3d —, 2015 Tenn. LEXIS 187 (Tenn. Mar. 3, 2015).

Defendant's sentence did not constitute cruel and unusual punishment because, based on his status as a career offender, he was properly sentenced to the mandatory maximum sentence of 30 years in prison State v. Hall, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 328 (Tenn. Crim. App. May 4, 2017).

Defendant's 26-year sentence for rape of a child was supported by his position of private trust as a close family friend and thus, did not amount to cruel and unusual punishment. State v. Clymer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 945 (Tenn. Crim. App. Nov. 9, 2017).

Defendant challenged his life sentence, but the law surrounding the imposition of a life sentence for first degree murder was not in question and the court was bound by its previous determination that defendant's life sentence was constitutional, as the sentence did not reach the considerations of Miller v. Alabama. State v. Henderson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. Sept. 12, 2019).

7. Bail.

Where defendant was charged with involuntary manslaughter and aggravated assault, the court violated defendant's constitutional rights by setting bail at such an amount so as to effectively preclude defendant's ability to gain his freedom. State ex rel. Hemby v. O'Steen, 559 S.W.2d 340, 1977 Tenn. Crim. App. LEXIS 313 (Tenn. Crim. App. 1977).

8. Death Penalty.

The Tennessee death penalty scheme is not constitutionally unsound because it does not require a specific jury finding that the defendant personally killed or intended to kill. Strouth v. State, 755 S.W.2d 819, 1986 Tenn. Crim. App. LEXIS 2820 (Tenn. Crim. App. 1986).

The death penalty does not per se violate Tenn. Const. art. I, § 16. State v. Black, 815 S.W.2d 166, 1991 Tenn. LEXIS 322 (Tenn. 1991); State v. Middlebrooks, 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (Tenn. 1992), cert. dismissed, Tennessee v. Middlebrooks, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555, 1993 U.S. LEXIS 7942 (1993), cert. denied, Tennessee v. Middlebrooks, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed. 2d 702, 1994 U.S. LEXIS 402 (1994), superseded by statute as stated in, State v. Banks, 271 S.W.3d 90, 2008 Tenn. LEXIS 963 (Tenn. 2008); State v. Bane, 853 S.W.2d 483, 1993 Tenn. LEXIS 148 (Tenn. 1993), cert. denied, Tennessee v. Bane, 510 U.S. 1040, 114 S. Ct. 682, 126 L. Ed. 2d 650, 1994 U.S. LEXIS 63 (1994).

Death eligibility under first-degree murder statute, which eliminated the requirement that the killing be willful, deliberate, malicious and premeditated if the victim was under thirteen years of age and the death resulted from child abuse, was constitutionally disproportionate punishment violative of Tenn. Const. art. I, § 16. State v. Hale, 840 S.W.2d 307, 1992 Tenn. LEXIS 507 (Tenn. 1992), rehearing denied, State v. Eugene Hale, — S.W.2d —, 1992 Tenn. LEXIS 558 (Tenn. Sept. 8, 1992).

The death penalty is not cruel and unusual punishment under U.S. Const. amend. 8 or Tenn. Const. art. I, § 16. State v. Howell, 868 S.W.2d 238, 1993 Tenn. LEXIS 408 (Tenn. 1993), cert. denied, Howell v. Tennessee, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687, 1994 U.S. LEXIS 2487 (1994).

Statutes pertaining to sentencing for first degree murder and appeal and review of a death sentence are not violative of the U.S. Const. amends. 5, 6, 8, and 14, nor of Tenn. Const. art. I, §§ 8, 9, 16, and 17, and Tenn. Const. art. II, § 2. State v. Shepherd, 902 S.W.2d 895, 1995 Tenn. LEXIS 269 (Tenn. 1995).

The precedent that when a defendant is convicted of first degree murder solely on the basis of felony murder, use of the felony murder aggravating circumstance is not permissible because it does not narrow the class of death-eligible murderers sufficiently, is independently based on Tenn. Const. art. I, § 16. Carter v. State, 958 S.W.2d 620, 1997 Tenn. LEXIS 497 (Tenn. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. LEXIS 614 (Tenn. Dec. 15, 1997).

It violates Tenn. Const. art. I, § 16 to use the felony murder aggravating circumstance to support imposition of the death penalty for a conviction of felony murder. State v. Boyd, 959 S.W.2d 557, 1998 Tenn. LEXIS 2 (Tenn. 1998), cert. denied, Boyd v. Tennessee, 525 U.S. 846, 119 S. Ct. 116, 142 L. Ed. 2d 93, 1998 U.S. LEXIS 5267 (1998).

A harmless error analysis is appropriate in determining whether resentencing is required as a result of an error that occurs where a defendant is convicted solely on the basis of felony murder. Coleman v. State, 3 S.W.3d 19, 1998 Tenn. Crim. App. LEXIS 1229 (Tenn. Crim. App. 1998), cert. denied, Coleman v. Tennessee, 528 U.S. 935, 120 S. Ct. 339, 145 L. Ed. 2d 264, 1999 U.S. LEXIS 6682 (1999).

Middlebrooks , 840 S.W.2d 317, 1992 Tenn. LEXIS 563 (Tenn. 1992) is based independently on Tenn. Const. art. I, § 16. King v. State, 989 S.W.2d 319, 1999 Tenn. LEXIS 226 (Tenn. 1999), cert. denied, King v. Tennessee, 528 U.S. 875, 120 S. Ct. 181, 145 L. Ed. 2d 153, 1999 U.S. LEXIS 5863 (1999).

The jury's consideration of an invalid aggravating circumstance in violation of Middlebrooks was harmless error and the remaining aggravating circumstance, that the 70-year-old victim's throat was slit almost severing his head after he had been knocked unconscious, was supported by an abundance of proof which was qualitatively persuasive. Strouth v. State, 999 S.W.2d 759, 1999 Tenn. LEXIS 346 (Tenn. 1999), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 423 (1999).

The process by which defendant was sentenced to death for his crimes was not the result of standardless jury discretion, even without a life without parole instruction, and was sufficient under Tenn. Const. art. I, § 16 and U.S. Const. amend. 8. State v. Keen, 31 S.W.3d 196, 2000 Tenn. LEXIS 565 (Tenn. 2000), cert. denied, Keen v. Tennessee, 532 U.S. 907, 121 S. Ct. 1233, 149 L. Ed. 2d 142, 2001 U.S. LEXIS 2043 (2001).

Electrocution is a constitutionally permissible method of execution. Black v. Bell, 181 F. Supp. 2d 832, 2001 U.S. Dist. LEXIS 22680 (M.D. Tenn. 2001), aff'd, 664 F.3d 81, 2011 FED App. 313P, 2011 U.S. App. LEXIS 24798 (6th Cir. Dec. 15, 2011).

In defendant's capital murder case, although it was error for the trial court to exclude defendant's proffered correspondence as mitigating evidence, the error was harmless where the content of the excluded correspondence was adequately communicated to the jury through other evidence; and the trial court instructed the jury that it could consider, among other factors, “remorse,” “religious reformation,” and “spiritual development” as mitigating factors. State v. Carter, 114 S.W.3d 895, 2003 Tenn. LEXIS 843 (Tenn. 2003), cert. denied, Carter v. Tennessee, 540 U.S. 1221, 124 S. Ct. 1511, 158 L. Ed. 2d 158, 2004 U.S. LEXIS 1692 (2004).

Inmates' challenge to the facial constitutionality of Tennessee's lethal injection protocol failed to establish that the three-drug protocol constituted cruel and unusual punishment because plaintiffs were required to plead and prove a known and available alternative method of execution; and plaintiffs failed to prove that the one-drug protocol using pentobarbital was an available alternative method of execution as Tennessee did not have access to and was unable to obtain pentobarbital with ordinary transactional effort for use in lethal injections because the Commissioner and the Deputy Commissioner of the Tennessee Department of Correction (TDOC) provided testimony regarding the TDOC's unsuccessful efforts to obtain pentobarbital. Abdur'Rahman v. Parker, — S.W.3d —, 2018 Tenn. LEXIS 603 (Tenn. Oct. 10, 2018).

9. —Unconstitutional for People with Intellectual Disabilities.

The execution of a mentally retarded individual violates U.S. Const. amend. 8 and Tenn. Const. art. I, § 16; such a rule warrants retroactive application to cases on collateral review. Van Tran v. State, 66 S.W.3d 790, 2001 Tenn. LEXIS 820 (Tenn. 2001).

Inmate failed to prove that he was mentally retarded under T.C.A. § 39-13-203, and therefore he was properly denied postconviction relief from his death sentence, because the Inmate failed to prove that he had deficits in adaptive behavior as the trial court correctly determined that little weight should be given to the inmate's below average score on the independent living scale, as the inmate had been diagnosed with paranoid schizophrenia and there was no indication that the testing questions took into account his lifestyle in Vietnam, his difficulty communicating in English, or the fact that he spent the majority of his adult life in jail. Van Tran v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 899 (Tenn. Crim. App. Nov. 9, 2006), appeal denied, Tran v. State, — S.W.3d —, 2007 Tenn. LEXIS 428 (Tenn. Apr. 16, 2007), cert. denied, Van Tran v. Tennessee, 169 L. Ed. 2d 372, 128 S. Ct. 532, 552 U.S. 1009, 2007 U.S. LEXIS 12047 (2007).

Inmate failed to prove that he was mentally retarded under T.C.A. § 39-13-203, and therefore he was properly denied postconviction relief from his death sentence, as evidence of poverty, child abuse, lack of education, family dysfunction, and poor social conditions were not enough to demonstrate that any deficits manifested during the developmental period; the proof established that the inmate supported himself, took care of others, was employed, and was able to assist and communicate with his trial attorneys. Van Tran v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 899 (Tenn. Crim. App. Nov. 9, 2006), appeal denied, Tran v. State, — S.W.3d —, 2007 Tenn. LEXIS 428 (Tenn. Apr. 16, 2007), cert. denied, Van Tran v. Tennessee, 169 L. Ed. 2d 372, 128 S. Ct. 532, 552 U.S. 1009, 2007 U.S. LEXIS 12047 (2007).

Because the proof preponderated against the trial court's finding that defendant's mental retardation manifested by his 18th birthday, the supreme court held that the trial court erred in finding defendant to have been mentally retarded and therefore ineligible for the death penalty. State v. Strode, 232 S.W.3d 1, 2007 Tenn. LEXIS 666 (Tenn. Aug. 14, 2007).

As the state appellate court's interpretation of state caselaw concerning the federal habeas petitioner's IQ and adaptive deficits was clearly contrary to state supreme court caselaw interpreting T.C.A. § 39-13-203(a) and, thus, also contrary to Atkins , the case was remanded for consideration based on the Coleman standard. Black v. Bell, 664 F.3d 81, 2011 FED App. 313P, 2011 U.S. App. LEXIS 24798 (6th Cir. Dec. 15, 2011).

Inmate's motion to reopen a post-conviction petition was properly denied as Coleman v. State, 341 S.W.3d 221, 2011 Tenn. LEXIS 319 (Tenn. 2011), did not establish a new retroactive rule for proving intellectual disability in Tennessee under the Eighth Amendment or Tenn. Const. art. I, § 16 for T.C.A. § 40-30-117(a)(1) purposes, but concerned an interpretation of T.C.A. § 39-13-203, and held that the courts could consider factors other than raw test scores in determining intellectual disability. Keen v. State, 398 S.W.3d 594, 2012 Tenn. LEXIS 932 (Tenn. Dec. 20, 2012), cert. denied, Keen v. Tennessee, 187 L. Ed. 2d 120, 134 S. Ct. 176, — U.S. —, 2013 U.S. LEXIS 7234 (U.S. Oct. 7, 2013).

10. Sentencing Hearing.

The state's characterization of defendant's mitigating evidence as an “excuse” and argument that the sentencing hearing was about “responsibility” did not distort the evidence or mislead the jury as to the issue before it. State v. Smith, 893 S.W.2d 908, 1994 Tenn. LEXIS 278 (Tenn. 1994), rehearing denied, 893 S.W.2d 908, 1995 Tenn. LEXIS 48 (Tenn. 1995), cert. denied, Smith v. Tennessee, 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53, 1995 U.S. LEXIS 5601 (1995).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the waiver of his right to testify at his sentencing hearing was knowing, intelligent, and voluntary as required by the U.S. Constitution and Tenn. Const. art. I, §§ 8, 9, and 16; the appellate court rejected defendant's argument that he was not sufficiently advised of the salient consequences of exercising his fundamental constitutional right to testify. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because the prosecutor's objections at defendant's resentencing hearing did not deprive defendant a fair trial nor violate any of his constitutional rights under the U.S. Constitution or Tenn. Const. art. I, § 8 and Tenn. Const. art. I, § 16; while some series of objections were incessant, there was no indication in the record that the objections were without legal basis or were made merely as an attempt to comment upon the credibility of the testimony. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

11. Competency to Be Executed.

A prisoner is not competent to be executed if the prisoner lacks the mental capacity to understand the fact of the impending execution and the reason for it. Coe v. State, 17 S.W.3d 193, 2000 Tenn. LEXIS 116 (Tenn. 2000), cert. denied, Bell v. Coe, 529 U.S. 1034, 120 S. Ct. 1460, 146 L. Ed. 2d 344, 2000 U.S. LEXIS 2200 (2000), cert. denied, Coe v. Tennessee, 146 L. Ed. 2d 344, 120 S. Ct. 1460, 529 U.S. 1034, 2000 U.S. LEXIS 2199 (2000).

Although petitioner's experts maintained that he was mentally retarded and thus not eligible for the death penalty, the proof did not support that his I.Q. was below 70 or that he had deficits in his adaptive behavior prior to age 18; therefore, he was not excluded from the sentence of death. Black v. State, — S.W.3d —, 2005 Tenn. Crim. App. LEXIS 1129 (Tenn. Crim. App. Oct. 19, 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 144 (Tenn. 2006), cert. denied, Black v. Tennessee , 549 U.S. 852, 127 S. Ct. 120, 166 L. Ed. 2d 90, 2006 U.S. LEXIS 6678 (U.S. 2006).

12. Juveniles.

A sentence of life without parole for a juvenile for a first degree murder conviction does not abridge federal or state constitutional safeguards against cruel and unusual punishment. State v. Howell, 34 S.W.3d 484, 2000 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2000 Tenn. LEXIS 539 (Tenn. Sept. 25, 2000), cert. denied, Sturgill v. Tennessee, 149 L. Ed. 2d 478, 121 S. Ct. 1614, 532 U.S. 977, 2001 U.S. LEXIS 2998 (2001).

Defendant's life sentence was not unconstitutional; although defendant was a juvenile at the time of the murder, she was given a sentence that provided for release eligibility. State v. Polochak, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 16, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 396 (Tenn. May 14, 2015).

Defendant's sentence of life imprisonment did not violate the prohibition against cruel and unusual punishment; the United States Supreme Court has held that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile non-homicide offender, it does not require the State to release that offender during his or her natural life. State v. Collins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 489 (Tenn. Aug. 8, 2018), cert. denied, Collins v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 7182 (U.S. Dec. 10, 2018).

Petitioner did not state a colorable claim upon which relief could be granted when he claimed that his sentence of life imprisonment violated the prohibition against cruel and unusual punishment because he was a juvenile at the time of the offense because he received a life sentence that had early release eligibility and therefore his sentence is not unconstitutional. Siler v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 24, 2020).

NOTES TO DECISIONS

1. Nature and Effect of Provision.

The obvious meaning of Tenn. Const. art. I, § 17 is that there shall be established courts proceeding according to the course of the common law, or some system of well established judicature to which all the citizens of the state may resort for the enforcement of rights denied or redress of wrongs done them. The judgments of certain inferior jurisdictions, such as city councils, and boards of commissioners or supervisors, cannot be made final and conclusive of the rights of litigants, because they are not courts within the meaning of Tenn. Const. art. I, § 17; and their judgments are subject to review in the circuit court, which cannot be closed, but must be open to the injured person entitled to “remedy by due course of law.” Staples v. Brown, 113 Tenn. 639, 85 S.W. 254, 1904 Tenn. LEXIS 56 (1904); Lewis v. Shelby County, 116 Tenn. 454, 92 S.W. 1098, 1906 Tenn. LEXIS 8 (1906); Taylor v. Carr, 125 Tenn. 235, 141 S.W. 745, 1911 Tenn. LEXIS 21 (1911); State ex rel. Conner v. Herbert, 127 Tenn. 220, 154 S.W. 957, 1912 Tenn. LEXIS 24 (1912).

Tenn. Const. art. I, § 17 is a mandate to the judiciary, and is not intended as a limitation on the legislative branch of the government. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Tenn. Const. art. I, § 17 does not create a clear and unambiguous public policy exception to the employment at will doctrine. Tennessee's constitution limits only governmental actions; private entities are not so bound. Moreover, even if the constitution did apply to private entities, Tenn. Const. art. I, § 17 does not clearly and unambiguously create a public policy which would prevent the discharge of at-will employees who sue their employers. Litigation between an employer and employee tends to result in an acrimonious and noncooperative working relationship, and when such a relationship threatens the effectiveness of an organization, an employer must be free to remedy the situation through termination. Deiters v. Home Depot U.S.A., Inc., 842 F. Supp. 1023, 1993 U.S. Dist. LEXIS 19235 (M.D. Tenn. 1993).

Tenn. Const. art. I, § 17 reflects sovereign immunity: the notion that a sovereign governmental entity cannot be sued in its own courts without its consent. Northland Ins. Co. v. State, 33 S.W.3d 727, 2000 Tenn. LEXIS 685 (Tenn. 2000).

State action is required before there can be a violation of the law of the land provision, Tenn. Const. art. I, § 8, and the open courts and the right to a remedy clauses, Tenn. Const. art. I, § 17, because those provisions limit the actions of the government, but not private entities; the statutes authorizing and regulating private foreclosure sales do not violate Tenn. Const. art. I, § 17. CitiMortgage, Inc. v. Drake, 410 S.W.3d 797, 2013 Tenn. App. LEXIS 116 (Tenn. Ct. App. Feb. 21, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 663 (Tenn. Aug. 14, 2013).

2. Right to Raise Constitutional Question.

Contention that liquor law is contrary to Tenn. Const. art. I, § 17, because of provision for punishment of a corporate officer consenting to or knowingly permitting a violation of the act, cannot be raised by one who is not an officer of a corporation and is not therefore affected by the section. Baker v. State, 147 Tenn. 421, 248 S.W. 548, 1922 Tenn. LEXIS 55 (1923).

3. Right to Present Case.

Under Tenn. Const. art. I, § 17, in order to prosecute his writ of error or appeal in error, the plaintiff in error has the right to present his case to the court either in person or by counsel, the method to be pursued being in the court's discretion. Courts will rarely deny request to be personally present and address the court along with counsel, and will always appoint counsel to appear for plaintiff in error though he should appear and argue the case in person. Vowell v. State, 132 Tenn. 349, 178 S.W. 768, 1915 Tenn. LEXIS 28 (1915).

Attorney who was not a party to case and had no interest in case, had no right to intervene in case because of imputations of fraud against her in the case. Barnes v. Kyle, 202 Tenn. 529, 306 S.W.2d 1, 1957 Tenn. LEXIS 436 (1957).

Trial court order violated the open courts provision where it permanently enjoined an individual from filing pro se actions in its judicial district, and appointed a local attorney to represent the individual if any meritorious claims arose in the future. Ali v. Moore, 984 S.W.2d 224, 1998 Tenn. App. LEXIS 398 (Tenn. Ct. App. 1998), rehearing denied, — S.W.2d —, 1998 Tenn. App. LEXIS 489 (Tenn. Ct. App. July 27, 1998).

Where an individual repeatedly filed a series of lawsuits asserting violations of the state constitution, challenging the practice of serving meat and drink at political fund raisers, the sanction imposed by the trial court, whereby a special master was to review any suits filed by the individual for two years, was appropriately narrowly tailored and short in duration, effectively curbing for a defined period of time any repetitive or frivolous lawsuits filed by the individual, and was fully warranted given his undisputed history of filing such lawsuits, and it did not violate the open courts provision. Hooker v. Sundquist, 150 S.W.3d 406, 2004 Tenn. App. LEXIS 270 (Tenn. Ct. App. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. App. LEXIS 437 (Tenn. Ct. App. July 6, 2004).

Although a trail judge stated at the conclusion of a hearing that the judge would remember the difficulty the judge had in denying a request for attorney's fees to a spouse if the parties returned to court to litigate another custody dispute, the comment was not sufficient to impede the other spouse's right of access to the courts. Solima v. Solima, — S.W.3d —, 2015 Tenn. App. LEXIS 116 (Tenn. Ct. App. Mar. 11, 2015).

Dismissal of hospital patients' cause of action against a hospital and its services provider was appropriate because the Tennessee statute creating or conferring private rights of action did not violate the Open Court Clause of the Tennessee Constitution, as-applied to hospital patients, and there was no recognized statutory cause of action for the hospital patients under the statute, nor common law cause of action for the hospital patients against the hospital and its services provider. Fowler v. Morristown-Hamblen Hosp. Ass'n, — S.W.3d —, 2019 Tenn. App. LEXIS 312 (Tenn. Ct. App. June 24, 2019).

4. Courts Shall Be Open.

A cause may, by consent of the parties, be transferred to the appellate court, where the suit could have been brought originally in that court, and such court should remain open and do right and justice between the parties without denial or delay. Elkins v. Sams, 4 Tenn. 44, 1816 Tenn. LEXIS 17 (1816); Chester v. Embree, 7 Tenn. 370, 1824 Tenn. LEXIS 16 (1824); Shields v. Justices of Greene County, 42 Tenn. 60, 1865 Tenn. LEXIS 16 (1865).

A rule of court limiting application for a new trial to the first Saturday after the trial of the cause is too rigid, and violates Tenn. Const. art. I, § 17, that the courts shall be open. Pawley v. McGimpsey, 15 Tenn. 502, 1835 Tenn. LEXIS 36 (1835); Alexander v. State, 82 Tenn. 88, 1884 Tenn. LEXIS 109 (1884).

Under a statute permitting a nonresident defendant in attachment cases to set aside a default within 12 months, the application filed within the 12 months may be acted upon and disposed of, after that time. In contemplation of this constitutional provision, the courts are always open for instituting suits and filing applications, petitions, and pleadings. Bledsoe v. Wright, 61 Tenn. 471, 1873 Tenn. LEXIS 210 (1873).

Under Tenn. Const. art. I, § 17 of this section requiring the courts to be open, and giving remedy by due course of law, a tax cannot be imposed on lawyers for the privilege of practicing law. Maxwell v. State, 55 Tenn. 565, 1875 Tenn. LEXIS 3 (1875).

The unilateral act of plaintiff in coming to Tennessee from the state where she engaged in sexual intercourse with defendant did not satisfy the due process requirement of minimum contact with the forum state so as to permit Tennessee courts in a paternity suit to take in personam jurisdiction of the alleged nonresident father. Barnhart v. Madvig, 526 S.W.2d 106, 1975 Tenn. LEXIS 591 (Tenn. 1975).

Tennessee's products liability statute, § 29-28-103, is constitutional. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1986 U.S. App. LEXIS 29254 (6th Cir. Tenn. 1986).

T.C.A. § 29-28-103 does not violate the open court provisions of the constitution. Jones v. Five Star Engineering, Inc., 717 S.W.2d 882, 1986 Tenn. LEXIS 796 (Tenn. 1986).

The “open courts” provision prohibits the judiciary from making the enforcement of a statutorily conferred right or remedy potentially dependent on the whim of other states' judiciaries. Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

Provision of divorce decree that husband was entitled to visitation only upon petition by the guardian ad litem and after an opportunity for the wife to be heard by the court violated the open courts provision. Whitaker v. Whitaker, 957 S.W.2d 834, 1997 Tenn. App. LEXIS 266 (Tenn. Ct. App. 1997), cert. denied, 523 U.S. 1028, 118 S. Ct. 1316, 140 L. Ed. 2d 480, 1998 U.S. LEXIS 1960 (1998).

In a case in which petitioner claimed that he was ineligible for the death penalty because he was intellectually disabled and that his murder conviction violated principles of double jeopardy, the procedural bars to a hearing did not violate the Open Courts Clause of the Tennessee Constitution. Dellinger v. State, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 669 (Tenn. Crim. App. Aug. 18, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 334 (Tenn. May 6, 2016).

Circuit court properly dismissed the plaintiffs' medical malpractice claims because they failed to timely comply with the statutory pre-suit notice where, save for a signature and date, the blanks on the medical authorization forms received by the providers were not completed, the affidavits attached to the response failed to warrant a finding of extraordinary cause, the statutory 120-day extension was unavailable, and there was no violation of the separation of powers doctrine or the Open Court Clause where the medical authorization requirement did not conflict with the Civil Procedure Rules and the plaintiffs' did not present a basis for declaring the statute unconstitutional. J.A.C. v. Methodist Healthcare Memphis Hosps., — S.W.3d —, 2016 Tenn. App. LEXIS 829 (Tenn. Ct. App. Nov. 2, 2016).

Petition for writ of mandamus was properly dismissed as petitioner's constitutional rights to due process and state court access were not violated because the statute regarding application to testify before the grand jury did not establish a clear and specific duty on the part of the grand jury foreperson to meet with petitioner in prison or to cause him to be transported to testify before a grand jury panel; much of the manner in which the foreperson, in collaboration with the grand jury panel, was to determine whether the potential witness's knowledge warranted investigation by the grand jury was discretionary; and a writ of mandamus would not be a proper remedy as issuance of the writ would manifestly prejudice public interest. Willis v. Johnson, — S.W.3d —, 2018 Tenn. App. LEXIS 563 (Tenn. Ct. App. Sept. 27, 2018).

5. —Effect of Closing of Courts.

Statutes of limitations are only applicable and in force when the courts are open; and they were suspended while the courts were closed by the war between the states. Harrison v. Henderson, 54 Tenn. 315, 1872 Tenn. LEXIS 53 (1872); Neely v. Luster, 54 Tenn. 354, 1872 Tenn. LEXIS 54 (1872); Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Marks v. Borum, 60 Tenn. 87, 1873 Tenn. LEXIS 416, 25 Am. Rep. 764 (1873); Criner v. Cherry, 3 Shan. 496 (1875); Coal Creek Mining & Mfg. Co. v. Ross, 80 Tenn. 1, 1883 Tenn. LEXIS 133 (1883); Breckenridge Cannel Coal Co. v. Scott, 121 Tenn. 88, 114 S.W. 930, 1908 Tenn. LEXIS 10 (1908).

6. —Transfer of Jurisdiction.

A delinquent tax law is not violative of Tenn. Const. art. I, § 17 as undertaking to oust circuit courts of their jurisdiction in tax cases pending in such courts at date of passage, where real estate has been sold for delinquent taxes under prior laws, by transferring the cases from the circuit court to the chancery court, such law merely affording the state an additional remedy for collection of taxes. Sherrill v. Thomason, 145 Tenn. 499, 238 S.W. 876, 1921 Tenn. LEXIS 91 (1922).

7. —Review.

The accused is entitled to an appeal or certiorari as a remedy against a conviction and judgment contrary to law; for the courts shall be open, and grant redress against injuries and miscarriage of justice. State v. Solomons, 14 Tenn. 359, 14 Tenn. 360, 1834 Tenn. LEXIS 93 (Tenn. Mar. 1834).

Appeal or certiorari from judgment of the county court upon a contested election of a constable lies to the circuit court, which court cannot be closed against the party considering himself aggrieved in such case. Dodd v. Weaver, 34 Tenn. 670, 1855 Tenn. LEXIS 116 (1855).

An appeal to the supreme court lies from the judgment of the circuit court in a case of contested election over the office of sheriff. Moore v. Sharp, 98 Tenn. 65, 38 S.W. 411, 1896 Tenn. LEXIS 204 (Tenn. Dec. 1896), overruled, Brown v. Hows, 163 Tenn. 138, 40 S.W.2d 1017, 1930 Tenn. LEXIS 140 (1931).

Finding against a newspaper in an action involving discovery in a lawsuit against a nursing home was proper because there was no abuse of discretion in trial court's order establishing a protocol requiring that all discovery documents initially be sealed pending a later hearing; trial court's implicit finding of good cause to maintain the protective order on unfiled discovery was sufficient and its decision was not erroneous. In re NHC — Nashville Fire Litig., 293 S.W.3d 547, 2008 Tenn. App. LEXIS 688 (Tenn. Ct. App. Nov. 21, 2008).

8. Remedy by Due Process of Law.

The phrase “an injury done him” necessarily means a legal injury, that is, a violation of his legal rights in some way, or a violation of law that affects him adversely. Barnes v. Kyle, 202 Tenn. 529, 306 S.W.2d 1, 1957 Tenn. LEXIS 436 (1957).

Fact that court refused to allow complainant to prosecute suit as assignee did not deprive complainant of remedy in due course of law where cause of action was not assignable and bill did not state cause of action. Dillingham v. Tri-State Ins. Co., 214 Tenn. 592, 381 S.W.2d 914, 1964 Tenn. LEXIS 510 (1964).

Denial to wife of cause of action against husband for personal injuries did not constitute denial of due process or equal protection of law. Fischer v. Fischer, 477 S.W.2d 513, 1972 Tenn. LEXIS 392 (Tenn. 1972).

Proceedings and decisions of the state board of equalization must be made in accordance with due process requirements of the constitution. Polk County v. State Board of Equalization, 484 S.W.2d 49, 1972 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1972).

Where the court denied defendant's request for a continuance on the basis that the absence at trial of one of the arresting officers was a surprise and handicap to his defense, there was no denial of due process, since the unavailable officer was one of four arresting officers and defendant should have known the officer would be absent from information available to him. Ellis v. State, 544 S.W.2d 908, 1976 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. 1976).

Service by publication was improper in tax sale proceedings because the county sheriff's efforts to locate the property owner, which consisted of sending a letter by regular mail and checking the telephone book for a listing, did not constitute diligent inquiry as required by T.C.A. § 21-1-203 and due process. Wilson v. Blount County, — S.W.3d —, 2005 Tenn. App. LEXIS 712 (Tenn. Ct. App. Nov. 14, 2005), aff'd, 207 S.W.3d 741, 2006 Tenn. LEXIS 993 (Tenn. 2006).

9. —Notice and Hearing.

Where provision is made for notice to and a hearing of the property owner at some stage of the tax proceedings, it is due process of law. Obion County use of Houser Creek Drainage Dist. v. Coulter, 153 Tenn. 469, 284 S.W. 372, 1926 Tenn. LEXIS 8 (1926).

Upon motion, supported by affidavit, trial judges may, in the exercise of sound discretion, order in lieu of publication, that the clerk mail a copy of the complaint and summons by return receipt registered mail to defendant's last known address and post a copy of the summons at three public places in the county; that the clerk make an entry on the rule docket so showing, and note thereon and file with the record the document returned, and such a method of substitute service will satisfy both federal and state due process requirements. Dungan v. Dungan, 579 S.W.2d 183, 1979 Tenn. LEXIS 424 (Tenn. 1979).

The passage of a zoning amendment without prior knowledge or notice violated due process. State ex rel. SCA Chemical Services, Inc. v. Sanidas, 681 S.W.2d 557, 1984 Tenn. App. LEXIS 3429 (Tenn. Ct. App. 1984).

In the context of a petitioner's post-conviction DNA analysis request, he was not denied a fair hearing before an impartial and unbiased tribunal because, although the record reflected that the post-conviction court refused to permit the petitioner to present the testimony of an expert, that action did not indicate bias because the Tennessee Post-Conviction DNA Analysis Act did not contemplate an evidentiary hearing until after DNA testing produced results favorable to the petitioner. Alley v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 470 (Tenn. Crim. App. June 22, 2006), cert. denied, Alley v. Tennessee, — U.S. —, 126 S. Ct. 2975, 165 L. Ed. 2d 982, 2006 U.S. LEXIS 5179 (U.S. 2006), overruled, Nelson v. State, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 915 (Tenn. Crim. App. Dec. 14, 2011).

10. —Judicial Prejudice.

Beyond question, it is not according to “due course of law” to compel a man, over his protest, to try his case before a judge who has already decided it, and has announced that decision in advance of the hearing. It is equally true that such compulsion is a denial of justice. A denial of a preliminary trial in the lower court, before a judge who had not already decided the case before the hearing, is a deprivation of the right guaranteed to every citizen to have his case tried according to “due course of law,” and is a violation of Tenn. Const. art. I, § 17. In re Cameron, 126 Tenn. 614, 151 S.W. 64, 1912 Tenn. LEXIS 82 (1912).

Allegation that two members of supreme court as constituted when petition for certiorari was originally refused had communicated with chancellor and court of appeals on merits of case even if true would not have invalidated granting of second petition for certiorari where one of justices had retired before granting of second petition, the other made no statement as to how case should be decided before it was decided and merely concurred in action of court and three members of present court, sufficient to make a constitutional judgment, had never heard of case until it was presented and argued under second petition. Pierce v. Tharp, 224 Tenn. 328, 455 S.W.2d 145, 1970 Tenn. LEXIS 330 (1970), rehearing denied, 224 Tenn. 339, 457 S.W.2d 529 (1970), cert. denied, McKown v. Pierce, 402 U.S. 929, 91 S. Ct. 1527, 28 L. Ed. 2d 863, 1971 U.S. LEXIS 2286 (1971).

Inmate failed to show that the postconviction court was biased, as his displeasure with the outcome of the hearing was insufficient, and that despite the inmate's argument to the contrary, the postconviction court considered all of the testimony presented, including mitigation evidence. Keen v. State, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 5, 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1032 (Tenn. Oct. 30, 2006), cert. denied, Keen v. Tennessee, 550 U.S. 938, 127 S. Ct. 2250, 167 L. Ed. 2d 1097, 2007 U.S. LEXIS 5243 (2007).

Defendant's conviction for premeditated first-degree murder and his subsequent sentence to death were both proper because there was no indication in the record before the appellate court that the trial judge prejudged any factual issues that arose related to defendant's re-sentencing hearing; thus, the appellate court was unable to conclude that the trial court abused its discretion in denying the motion for recusal. State v. Rimmer, — S.W.3d —, 2006 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 250 S.W.3d 12, 2008 Tenn. LEXIS 108 (Tenn. Feb. 20, 2008).

11. —Juvenile Proceedings.

Where juvenile court found that boy was dependent and neglected child and in need of placement outside his home but boy was not charged with or accused of any wrongdoing, fact that he did not have attorney at hearing and was not told he was entitled to attorney did not require his release on theory that there was violation of U.S. Const. amend. 14 or of the due process clause of the constitution of Tennessee. State ex rel. Underwood v. Adamson, 62 Tenn. App. 474, 463 S.W.2d 952, 1970 Tenn. App. LEXIS 324 (Tenn. Ct. App. 1970).

Due process does not require that a higher standard of proof be established for the revocation of the probation of a juvenile since juvenile is entitled to same standard as adult. State ex rel. Gillard v. Cook, 528 S.W.2d 545, 1975 Tenn. LEXIS 627 (Tenn. 1975).

The juvenile judge must consider each case on its merits to determine whether the appointment of counsel is required at a home placement revocation hearing using such criteria as whether the juvenile can speak capably for himself, or whether he alleges in a timely and colorable claim that he has not committed the violation or that there are substantial reasons mitigating the violation which are complex or difficult to present, with any doubt being resolved in favor of appointment of counsel. State ex rel. Gillard v. Cook, 528 S.W.2d 545, 1975 Tenn. LEXIS 627 (Tenn. 1975).

12. —Statute Directing Dismissal of Suits.

A legislative act, though general in form, directing pending suits, prosecuted by due course of law under a certain statute, to be dismissed, and thus destroying vested rights, and a remedy by due course of law communicated by such certain statute, is unconstitutional. Fisher's Negroes v. Dabbs, 14 Tenn. 119, 1834 Tenn. LEXIS 59 (Tenn. Mar. 1834); Jones' Heirs v. Perry, 18 Tenn. 59, 1836 Tenn. LEXIS 102 (1836) (a private act to sell lands descended to certain infants to pay debts of their deceased ancestors is void); Memphis v. United States, 97 U.S. 293, 24 L. Ed. 920, 1877 U.S. LEXIS 1776 (1878).

So, an act directing the dismissal of a certain class of cases, as certain Indian reservation cases, is unconstitutional as a partial law. Wally's Heirs v. Kennedy, 10 Tenn. 554, 1831 Tenn. LEXIS 15, 24 Am. Dec. 511 (1831).

13. —Disbarment Proceedings.

Where two chancellors instituted disbarment proceedings and interchanged with two circuit judges, either of whom was qualified, the fact that the two heard the case did not affect the merits and Tenn. Const. art. I, § 17 was not violated. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

Where either chancellor would have been entitled to institute disbarment proceedings and to enter order of citation, the rights of defendant were not jeopardized because the proceedings were instituted by two chancellors sitting together as one court. State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 1942 Tenn. LEXIS 7 (1942).

14. —Membership on Boards.

Limitation of appointments to board of dental examiners to dentists recommended by state dental association did not violate Tenn. Const. art. I, § 17, since membership on such board did not involve a property right. Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S.W.2d 687, 1933 Tenn. LEXIS 78 (1934).

15. —Reviewing Findings of Boards.

Where statute makes final the judgment of civil service and pension board of certain city on question of fact as to guilt or innocence of charges preferred against a police officer, right to review of finding of fact of board by certiorari will be denied, there being no justiciable controversy, trial of which is guaranteed by Tenn. Const. art. I, § 17. City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164, 1927 Tenn. LEXIS 138 (1927).

Though a case may be brought to the circuit court by certiorari, when there is no provision for appeal or writ of error from action of a board passing upon a constitutional right, certiorari will not lie where no constitutional right is involved and the act or ordinance creating a special tribunal provides that its findings shall be final, if the tribunal acts within its jurisdiction. Binford v. Carline, 9 Tenn. App. 364, — S.W.2d —, 1928 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1928).

Although the courts have no jurisdiction to review the judgments of inferior tribunals whose acts or findings are final and conclusive, the courts may require the tribunal to act within the law of its creation, without fraud, and with opportunity for a full and fair hearing, and upon a petition alleging county election commissioners were removed by the state board of elections, without charges stating specific causes, and without hearing, the commissioners were entitled to a writ of certiorari for a review of the board's actions. McKee v. Board of Elections, 173 Tenn. 276, 116 S.W.2d 1033, 1937 Tenn. LEXIS 27 (1938).

Trial court was acting within its jurisdiction and within the confines of due process where a case arising from a denial of a zoning application was treated as an original action; city council could have been found in contempt for violating the trial court's order where the judgment stated that the trial court was considering the case as a declaratory action, exhibits were introduced, the trial court's order contained several findings of fact, additional testimony was heard, and findings were made that a city council's decision was illegal, arbitrary, and capricious. Flautt & Mann v. Council of Memphis, 285 S.W.3d 856, 2008 Tenn. App. LEXIS 84 (Tenn. Ct. App. Feb. 20, 2008).

16. —Reviewing Opinions of Board of Professional Responsibility.

In-house attorneys of liability insurance companies had standing to file a petition with the supreme court to review a formal ethics opinion issued by the board of professional responsibility. In re Youngblood, 895 S.W.2d 322, 1995 Tenn. LEXIS 46 (Tenn. 1995).

17. —Proceedings in Appellate Court.

18. — —Trial Judge Incompetent — Effect as to Supreme Court.

Where the trial judge was incompetent, and seasonable objection was made on that ground, the judgment in such case is void, and a trial by the supreme court upon the record would be the exercise of original jurisdiction, and the deprivation of the constitutional right guaranteed to every citizen to have his case tried according to due course of law; and the supreme court cannot, in such case, try the case de novo, and render the judgment which should have been rendered below; and § 27-117 (repealed) dispensing with errors not affirmatively appearing to have affected the result of the trial is not applicable to such cases. In re Cameron, 126 Tenn. 614, 151 S.W. 64, 1912 Tenn. LEXIS 82 (1912).

19. Right and Justice Shall Be Administered Without Sale, Denial or Delay.

20. —Tax on Litigation.

A statute imposing a tax on litigation, to be paid by the unsuccessful party, is not unconstitutional as a sale or denial of justice, but is valid. Tenn. Const. art. I, § 17 does not apply to taxation. Harrison, Pepper & Co. v. Willis, 54 Tenn. 35, 1871 Tenn. LEXIS 413, 19 Am. Rep. 604 (1871); Maxwell v. State, 55 Tenn. 565, 1875 Tenn. LEXIS 3 (1875); State v. Stanley, 71 Tenn. 524, 1879 Tenn. LEXIS 110 (1879).

21. —Taxing Jury Fees to Unsuccessful Party as a Sale of Justice.

The jury fees, even of a special jury, cannot be taxed to the losing party, and a statute attempting to do so is, to that extent, unconstitutional. Dunn v. Nashville & C.R.R., 62 Tenn. 415, 1874 Tenn. LEXIS 69 (1874); Neely v. State, 63 Tenn. 174, 1874 Tenn. LEXIS 224 (1874); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897) (in the dissenting opinion); Gribble v. Wilson, 101 Tenn. 612, 49 S.W. 736, 1898 Tenn. LEXIS 111 (1898).

22. Suits Against the State.

Tenn. Const. art. I, § 17, being in derogation of the state's sovereign privilege of exemption from suit, must be strictly construed. State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 1937 Tenn. LEXIS 143 (1937).

The state, as sovereign, is immune from suit except as it consents to be sued. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

A prisoner has a qualified and restricted constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right; however, absent unusual circumstances, prisoners who have filed their civil complaints, unrelated to the legality of their convictions and who have thus protected themselves against the running of any statute of limitations, will not be afforded the opportunity to appear in court to present their cases during their prison terms. Instead such matters will be held in abeyance until the prisoner shall have been released from prison and is in a position to prepare and present his case. Smith v. Peebles, 681 S.W.2d 567, 1984 Tenn. App. LEXIS 3212 (Tenn. Ct. App. 1984).

The rule of sovereign immunity in Tennessee is both constitutional and statutory. It is not within the power of the courts to amend it. Austin v. Memphis, 684 S.W.2d 624, 1984 Tenn. App. LEXIS 3086 (Tenn. Ct. App. 1984), aff'd in part, rev'd in part, Austin v. State, 796 S.W.2d 449, 1990 Tenn. LEXIS 299 (Tenn. 1990).

Tenn. Const. art. I, § 17 has been interpreted as a grant of sovereign immunity to the state, and no suit against the state may be sustained absent express authorization from the state legislature. Woolsey v. Hunt, 932 F.2d 555, 1991 U.S. App. LEXIS 9001 (6th Cir. Tenn. 1991), cert. denied, 502 U.S. 867, 112 S. Ct. 195, 116 L. Ed. 2d 155, 1991 U.S. LEXIS 4568 (1991), cert. denied, McCrackin v. United States, 116 L. Ed. 2d 155, 112 S. Ct. 195, 502 U.S. 867, 1991 U.S. LEXIS 4471 (1991).

Tennessee does not recognize the enforcement of implied contract claims against the state. Woolsey v. Hunt, 932 F.2d 555, 1991 U.S. App. LEXIS 9001 (6th Cir. Tenn. 1991), cert. denied, 502 U.S. 867, 112 S. Ct. 195, 116 L. Ed. 2d 155, 1991 U.S. LEXIS 4568 (1991), cert. denied, McCrackin v. United States, 116 L. Ed. 2d 155, 112 S. Ct. 195, 502 U.S. 867, 1991 U.S. LEXIS 4471 (1991).

Suits against state employees acting in their official capacities are deemed to be suits against the state itself, and the state may only be sued “in such manner and in such courts as the legislature may by law direct”; thus, the state is immune from suit in a state court unless the legislature provides to the contrary. Simmons v. Gath Baptist Church, 109 S.W.3d 370, 2003 Tenn. App. LEXIS 51 (Tenn. Ct. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 442 (Tenn. 2003).

District attorney was entitled to a prosecutor's absolute immunity from damages arising from his initiation and pursuit of a prosecution and in presenting the state's case. Simmons v. Gath Baptist Church, 109 S.W.3d 370, 2003 Tenn. App. LEXIS 51 (Tenn. Ct. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 442 (Tenn. 2003).

Under the Tenn. Const. art. I, § 17, the state of Tennessee has sovereign immunity from claims against it unless the state legislature expressly waives that immunity. Henderson v. Southwest Tenn. Cmty. College, 282 F. Supp. 2d 804, 2003 U.S. Dist. LEXIS 16161 (W.D. Tenn. 2003).

Inmate filed a claim against the state that the trial judge deprived him of his statutory rights because the indictments against him were void and because he was tried, convicted, and sentenced in absentia; he based his claim on T.C.A. §§ 40-3-101, 40-14-101, 40-14-102, 40-17-105, and 40-18-118, and Tenn. R. Crim. P. 43, but none of those statutes and rules expressly conferred a private right of action against the State to him; thus, the Tennessee claims commission for the Eastern Grand did not err when it held that it lacked subject matter jurisdiction over the inmate's claim pursuant to T.C.A.§ 9-8-307(a)(1)(N) and that the inmate failed to state a claim upon which relief can be granted. Therefore, pursuant to Tenn. Const. art. I, § 17, the commission did not err when it granted the state's motion to dismiss, Tenn. R. Civ. P. 12.02(1). Williams v. State, 139 S.W.3d 308, 2004 Tenn. App. LEXIS 43 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 530 (Tenn. June 1, 2004), appeal denied, Williams v. Parker, — S.W.3d —, 2006 Tenn. LEXIS 9 (Tenn. 2006).

In an unsafe roads case, a court properly denied the state's motion for summary judgment, asserted on the basis that it was entitled to discretionary function immunity; discretionary function immunity is a qualified immunity and not an absolute immunity. Lucas v. State, 141 S.W.3d 121, 2004 Tenn. App. LEXIS 83 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 583 (Tenn. June 21, 2004).

In a professor's action to recover back pay, the state was not immune from liability under Tenn. Const. art. I, § 17 because the Tennessee supreme court, in previous case law, upheld an award of back pay when faced with a similar situation. Wells v. Tenn. Bd. of Regents, — S.W.3d —, 2006 Tenn. App. LEXIS 624 (Tenn. Ct. App. Sept. 27, 2006), rev'd, 231 S.W.3d 912, 2007 Tenn. LEXIS 647 (Tenn. Aug. 17, 2007).

Neither T.C.A. § 28-1-105 nor § 28-1-115 applied, without more, to save the employee's Public Protection Act claim against the state; there was no mention of the state in the savings statutes and suits against the state of Tennessee could only be brought in strict compliance with an enabling statute; the state was immune from suit except when it consented to be sued. Farmer v. Tenn. Dep't of Safety, 228 S.W.3d 96, 2007 Tenn. App. LEXIS 105 (Tenn. Ct. App. Feb. 27, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 614 (Tenn. June 25, 2007), overruled, Moore v. Coffee County, 402 Fed. Appx. 107, 2010 U.S. App. LEXIS 23639, 2010 FED App. 715N (6th Cir.) (6th Cir. Tenn. 2010).

Declaratory judgment action seeking a declaration that an easement for highway purposes was not a highway right-of-way and that the state had no authority to require removal of the landowners' signs because of a claimed encroachment, was a suit against the state under T.C.A. § 20-13-102 and was barred under the doctrine of sovereign immunity as it sought to affect a property interest of the state. Williams v. Nicely, 230 S.W.3d 385, 2007 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 28, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 621 (Tenn. June 25, 2007).

Legislative history of the Copyright Remedy Clarification Act unambiguously revealed that Congress intended to remove the states' sovereign immunity by means of the Copyright Clause, U.S. Const. art. I, § 8, cl. 8, rather than by means of U.S. Const. amend. XIV, § 5, but because U.S. Const. art. I did not grant a general power to abrogate Eleventh Amendment state sovereign immunity, and 17 U.S.C. § 511' s abrogation could not be sustained as appropriate prophylactic legislation under U.S. Const. amend. XIV, § 5, plaintiff copyright holder's 17 U.S.C. § 501 infringement claims against defendant state tourist department failed. Jacobs v. Memphis Convention & Visitors Bureau, 710 F. Supp. 2d 663, 2010 U.S. Dist. LEXIS 70990 (W.D. Tenn. May 10, 2010).

Tennessee Claims Commission did not err in granting the State's motion for summary judgment relative to claimant's constitutional claims because the Commission did not have subject matter jurisdiction to consider those claims; the legislature has waived its sovereign immunity as to certain actions brought before the Claims Commission, and outside of the categories listed in T.C.A. § 9-8-307(a)(1), no jurisdiction exists for claims against the State. Farrar v. State, — S.W.3d —, 2012 Tenn. App. LEXIS 625 (Tenn. Ct. App. Sept. 7, 2012).

Tennessee Claims Commission properly dismissed an inmate's complaint for lack of subject matter jurisdiction because the statutory scheme did not grant a private right of action for the State's negligent deprivation; the inmate's claim that the State failed to comply with statutes in calculating his sentence fell within a claim for negligent deprivation of statutory rights, and he cited no cases holding that a claim involving a duty conferred by statute fell within subsection (a)(1)(E). Mosley v. State, 475 S.W.3d 767, 2015 Tenn. App. LEXIS 518 (Tenn. Ct. App. June 10, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 982 (Tenn. Nov. 24, 2015).

Tennessee Claims Commission did not err in denying a contractor's motion to amend its complaint against the State to add a count for the negligent preparation of plans because the contractor did not contend the State owed it a duty separate and apart from the contract; without another source of duty the State owed the contractor, it was not liable for negligence in preparing plans for the construction project, and the contractor did not fall within the group the statute was meant to protect. Wright Bros. Constr. Co. v. State, — S.W.3d —, 2015 Tenn. App. LEXIS 988 (Tenn. Ct. App. Dec. 22, 2015).

Could not proceed under the Declaratory Judgment Act because an allegation against the Tennessee State Election Commission (TSEC) pertaining to an unconstitutional statute was a threshold requirement to remove or waive immunity, and the candidate did not make such an allegation but sought a declaration as to the TSEC's duty to educate voters; accordingly, the chancery court lacked jurisdiction to hear his suit for declaratory judgment under the Act. Johnston v. Tenn. State Election Comm'n, — S.W.3d —, 2016 Tenn. App. LEXIS 723 (Tenn. Ct. App. Sept. 27, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 49 (Tenn. Jan. 19, 2017).

Tennessee Claims Commission properly dismissed a father's complaint for negligent care, custody, and control of persons under T.C.A. § 9-8-307(a)(1)(E) because the claim was for negligent deprivation of statutory rights based upon the failure to adhere to T.C.A. § 39-13-524, which did not confer a private right of action; the claim was predicated upon the alleged failure of the Tennessee Department of Correction to ensure compliance with § 39-13-524. Hale v. State, — S.W.3d —, 2017 Tenn. App. LEXIS 73 (Tenn. Ct. App. Feb. 2, 2017).

23. —Necessity of Authorization.

The provision in Tenn. Const. art. I, § 17 as to suits against the state is inoperative until effectuated by legislation. It is not self-executing. Williams v. Register of West Tennessee, 3 Tenn. 213, 1 Cooke, 1812 Tenn. LEXIS 59 (1812); State ex rel. Bloomstein v. Sneed, 68 Tenn. 472, 1876 Tenn. LEXIS 32 (1876), aff'd, Tennessee v. Sneed, 96 U.S. 69, 24 L. Ed. 610, 1877 U.S. LEXIS 1627 (1878); Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); North British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 1900 Tenn. LEXIS 197 (1901); General Oil Co. v. Crain, 117 Tenn. 82, 95 S.W. 824, 1906 Tenn. LEXIS 32, 121 Am. St. Rep. 967 (1906), aff'd, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

The principle is elementary that a state cannot be sued in its own courts, without its consent. This is a privilege of sovereignty. The only exception to this rule is that one state can be sued by another state, in the supreme court of the United States only as provided in U.S. Const. art. 3, § 2 and U.S. Const. amend. 11.Railroad Co. v. Tennessee, 101 U.S. 337, 25 L. Ed. 960, 1879 U.S. LEXIS 1923 (1880); United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171, 1882 U.S. LEXIS 1534 (1882), superseded by statute as stated in, Block v. North Dakota, 461 U.S. 273, 103 S. Ct. 1811, 75 L. Ed. 2d 840, 1983 U.S. LEXIS 26; Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842, 1890 U.S. LEXIS 1943 (1890), limited, Fitzpatrick v. Bitzer, 96 S. Ct. 2666, 427 U.S. 445, 49 L. Ed. 2d 614, 1976 U.S. LEXIS 160 (1976). See Beers v. Arkansas, 61 U.S. 527, 15 L. Ed. 991, 1857 U.S. LEXIS 480 (1857).

Suit to recover damages for land taken for the construction of a state highway may not be prosecuted against the state or its department, because the state has not authorized it to be maintained. Phillips v. Marion County, 166 Tenn. 83, 59 S.W.2d 507, 1932 Tenn. LEXIS 116 (1933); State ex rel. Moulton v. Williams, 207 Tenn. 695, 343 S.W.2d 857, 1961 Tenn. LEXIS 387 (1961).

Tenn. Const. art. I, § 17 implies that actions may not be brought against the state unless authority therefor is affirmatively given by statute. State Dep't of Highways v. Roseborough, 17 Tenn. App. 403, 68 S.W.2d 132, 1933 Tenn. App. LEXIS 75 (Tenn. Ct. App. 1933).

Probationary employee of the department of mental health and mental retardation was barred by sovereign immunity from suing state officials for monetary relief for wrongful discharge. Cashion v. Robertson, 955 S.W.2d 60, 1997 Tenn. App. LEXIS 198 (Tenn. Ct. App. 1997), rehearing denied, — S.W.2d —, 1997 Tenn. App. LEXIS 241 (Tenn. Ct. App. Apr. 11, 1997).

General assembly has chosen not to waive sovereign immunity under the circumstances where a state college or university professor seeks back pay or other monetary relief for wrongful dismissal; moreover, any abrogation of the immunity doctrine by the legislature must be set out in plain, clear, and unmistakable terms. Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 2007 Tenn. LEXIS 647 (Tenn. Aug. 17, 2007), cert. denied, 169 L. Ed. 2d 732, 128 S. Ct. 928, 552 U.S. 1101, 2008 U.S. LEXIS 50 (U.S. 2008).

24. —Manner and Form of Bringing Suit.

Suit by property owner to recover possession of land from state acquired in eminent domain proceeding was properly dismissed, since suit cannot be filed against the state unless brought in manner directed by legislature. Chumbley v. State, 183 Tenn. 467, 192 S.W.2d 1007, 1946 Tenn. LEXIS 226 (1946).

It is within the judgment of the chancellor and the clerk and master of the state court in question to judge what method is to be used with respect to the institution of suit by plaintiff here in order to comply with Tenn. Const. art. I, § 17. Brotherton v. Solomon, 307 F. Supp. 1325, 1970 U.S. Dist. LEXIS 13258 (E.D. Tenn. 1970).

25. —Construction of Statutes Allowing Suit.

The state cannot be subjected to litigation at the suit of individuals unless the words of the act are so plain, clear, and unmistakable as to leave no doubt of the intention of the legislature that it should be done. Phillips v. Marion County, 166 Tenn. 83, 59 S.W.2d 507, 1932 Tenn. LEXIS 116 (1933); Sweeney v. State Dep't of Transp., 744 S.W.2d 905, 1987 Tenn. App. LEXIS 2853 (Tenn. Ct. App. 1987); Daley v. State, 869 S.W.2d 338, 1993 Tenn. App. LEXIS 434 (Tenn. Ct. App. 1993).

Statutes permitting suits against the states under the authority of Tenn. Const. art. I, § 17 are in derogation of the sovereign's exemption from suits and must be strictly construed. State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 1937 Tenn. LEXIS 143 (1937).

Jurisdiction of board of claims to adjudicate claims against the state must be strictly construed, and such jurisdiction cannot be enlarged by implication. Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868, 1956 Tenn. LEXIS 329 (1956).

Legislation authorizing suits against the state must strictly pursue the constitutional requirements and be so plain, clear and unmistakable in its provisions as to the manner and form in which suits may be brought as to leave nothing to surmise or conjecture. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

A statute permitting suit against the state under authority of Tenn. Const. art. I, § 17 must be strictly construed and the jurisdiction cannot be enlarged by implication. Stokes v. University of Tennessee, 737 S.W.2d 545, 1987 Tenn. App. LEXIS 2757 (Tenn. Ct. App. 1987), cert. denied, 485 U.S. 935, 108 S. Ct. 1110, 99 L. Ed. 2d 271, 1988 U.S. LEXIS 1097 (1988); Daley v. State, 869 S.W.2d 338, 1993 Tenn. App. LEXIS 434 (Tenn. Ct. App. 1993).

Tennessee Claims Commission erred in granting the State's motion to dismiss a contractor's breach of contract action because the Commission had subject matter jurisdiction over the claim pursuant to the Tennessee Claims Commission Act; the contractor's claim was not predicated on the State's regulatory activity, but rather, the regulatory activity was simply a part of the factual background of the claim. Wright Bros. Constr. Co. v. State, — S.W.3d —, 2015 Tenn. App. LEXIS 988 (Tenn. Ct. App. Dec. 22, 2015).

26. —Claim for Contribution and Indemnity.

The Tennessee claims commission does not have subject matter jurisdiction over a claim against the state for contribution and indemnity. Northland Ins. Co. v. State, 33 S.W.3d 727, 2000 Tenn. LEXIS 685 (Tenn. 2000).

27. —Suits Against Officers.

A bill in chancery against the state's coal oil inspector to restrain him from inspecting certain coal oil in the state sold or intended for sale in certain other states, and to restrain him from collecting the fees for such inspection, is a suit against an officer of the state, acting by its authority, with a view to reach its funds or property, in the sense of the statute prohibiting such suit, and cannot, therefore, be maintained, and will be dismissed upon demurrer, though the bill claims that such oil is not subject to such inspection, and if so, the statute authorizing such inspection is unconstitutional. General Oil Co. v. Crain, 117 Tenn. 82, 95 S.W. 824, 1906 Tenn. LEXIS 32, 121 Am. St. Rep. 967 (1906), aff'd, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908).

In suit seeking mandamus to compel ministerial officer of state to pay alleged but unliquidated claim, demurrer on ground that the suit was, in effect, against the state, and that no cause for mandamus was presented, was properly sustained. Peerless Constr. Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732, 1928 Tenn. LEXIS 182 (1929). See Chumbley v. State, 183 Tenn. 467, 192 S.W.2d 1007, 1946 Tenn. LEXIS 226 (1946).

In a 42 U.S.C. § 1983 case in which a pro se father argued that his suit against the Tennessee department of children's services was not barred by the doctrine of sovereign immunity because the Tennessee Constitution preserved his right to sue the state, that argument failed. While Tenn. Const. art. I, § 17 provided that suits could be brought against the state in such manner and in such courts as the legislature may by law direct, in T.C.A. § 20-13-102(a), the Tennessee general assembly had expressly forbidden any party from suing the state or a state officer with a view to reach the state, its treasury, funds, or property. Murphy v. Humphreys County Juvenile Court, — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 85788 (M.D. Tenn. Sept. 18, 2009).

Chancery court properly dismissed defendant's declaratory judgment action seeking to enjoin his execution on the ground he met the criteria for intellectual disability because sovereign immunity barred the suit; defendant's allegations, in the absence of a claim that the statute being enforced was unconstitutional, were not sufficient to state a claim against the warden and Attorney General in their individual capacities for the purposes of granting relief to defendant. Payne v. Carpenter, — S.W.3d —, 2016 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 2, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 877 (Tenn. Nov. 16, 2016).

Denial of a motion to dismiss a former state employee's compliant was appropriate because, although subject matter jurisdiction was challenged based on sovereign immunity, the factual allegations in the employee's complaint, taken as true, supported jurisdiction as the complaint was against the Commissioner of the Tennessee Department of General Services and alleged that the Commissioner was not acting by authority of the State of Tennessee in failing to pay the employee the full wages to which the employee was entitled. Arnold v. Oglesby, — S.W.3d —, 2017 Tenn. App. LEXIS 760 (Tenn. Ct. App. Nov. 22, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 85 (Tenn. Feb. 14, 2018).

28. — —Officers Acting Under Unconstitutional Law.

A suit against officials of the state attacking the constitutionality of a statute under which they acted is not a suit against the state or against an official acting under the authority of the state. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

29. —Suits Against Subordinate Divisions or Arms of State.

Under the common law, there is no remedy against a county, which is a municipal corporation, for an injury caused by its neglect to keep the public roads in repair; and an action therefor is not sustainable, unless given by positive statute, and no statute has given such right of action. Wood v. Tipton County, 66 Tenn. 112, 1874 Tenn. LEXIS 88, 32 Am. Rep. 561 (1874); White's Creek Turnpike Co. v. Davidson County, 82 Tenn. 73, 1884 Tenn. LEXIS 107 (1884), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987); Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); McAndrews v. Hamilton County, 105 Tenn. 399, 58 S.W. 483, 1900 Tenn. LEXIS 83 (1900); Rhea County v. Sneed, 105 Tenn. 581, 58 S.W. 1063, 1900 Tenn. LEXIS 108 (1900); Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904).

Such statutes and decisions so exempting from liability for such injuries are not violative of Tenn. Const. art. I, § 17. Williams v. Taxing Dist., 84 Tenn. 531, 1886 Tenn. LEXIS 141 (1886); Nashville & K. R. Co. v. Wilson County, 89 Tenn. 597, 15 S.W. 446, 1890 Tenn. LEXIS 84 (1891); Rhea County v. Sneed, 105 Tenn. 581, 58 S.W. 1063, 1900 Tenn. LEXIS 108 (1900); Grainger County v. State, 111 Tenn. 234, 80 S.W. 750, 1903 Tenn. LEXIS 22 (1904); Barron v. Memphis, 113 Tenn. 89, 80 S.W. 832, 1904 Tenn. LEXIS 8 (1904) (but the taking of private property for public use without compensation cannot be authorized). See Wood v. Tipton County, 66 Tenn. 112, 1874 Tenn. LEXIS 88, 32 Am. Rep. 561 (1874).

Defendant in suit by city to recover damages to car of city operated in exercise of governmental function could not maintain a cross action for damages against the city, since officers of city in authorizing suit did not waive governmental immunity of city as an arm of the state. Scates v. Board of Comm'rs, 196 Tenn. 274, 265 S.W.2d 563, 1954 Tenn. LEXIS 374 (1954).

A municipality is immune from liability for the torts of a police officer in enforcing penal ordinances and criminal laws. Coffman v. Pulaski, 220 Tenn. 642, 422 S.W.2d 429, 1967 Tenn. LEXIS 447 (1967), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Police officers are state agents in the enforcement of penal laws and entitled to the protection of Tenn. Const. art. I, § 17. Coffman v. Pulaski, 220 Tenn. 642, 422 S.W.2d 429, 1967 Tenn. LEXIS 447 (1967), superseded by statute as stated in, Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987).

Where the University of Tennessee's charter contained the unrestricted right to sue and be sued in any court of law or equity within the state or elsewhere, there was no intent expressed to limit the consent to suits brought in the state courts. Soni v. Board of Trustees, 513 F.2d 347, 1975 U.S. App. LEXIS 15690 (6th Cir. Tenn. 1975), cert. denied, 426 U.S. 919, 96 S. Ct. 2623, 49 L. Ed. 2d 372, 1976 U.S. LEXIS 1939 (1976), superseded by statute as stated in, University of Tennessee v. United States Fidelity & Guaranty Co., 670 F. Supp. 1379, 1987 U.S. Dist. LEXIS 9555 (E.D. Tenn. 1987), superseded by statute as stated in, Woolsey v. Hunt, 932 F.2d 555, 1991 U.S. App. LEXIS 9001 (6th Cir. Tenn. 1991) (decided under prior law).

Absent legislation providing otherwise, municipal corporations are immune from tort liability if the damage occurs in the performance of governmental functions, but there is no immunity if the municipality was engaging in a proprietary or private function. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1978 U.S. App. LEXIS 7539 (6th Cir. Tenn. 1978).

A “traditional governmental function” is one that is able to be adequately performed only by government, is traditionally expected to be performed by government, or is required to be performed by the command of the legislature or the constitution. Crowe v. John W. Harton Memorial Hospital, 579 S.W.2d 888, 1979 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1979), superseded by statute as stated in, Gordon v. Henderson, 766 S.W.2d 784, 1989 Tenn. LEXIS 44 (Tenn. 1989).

The governmental-proprietary test is actually two-tiered. The first tier examines the activity giving rise to suit to determine whether it has as its basis a traditional governmental function. The second part of the test looks at the operation of the specific enterprise involved in the suit to determine whether its primary purpose is to promote the general welfare of the municipality's citizens. The first tier is a question of law, the second a question of fact. While the answer to the second dictates the outcome of the case, the answer to the first determines the burden of proof. Crowe v. John W. Harton Memorial Hospital, 579 S.W.2d 888, 1979 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1979), superseded by statute as stated in, Gordon v. Henderson, 766 S.W.2d 784, 1989 Tenn. LEXIS 44 (Tenn. 1989).

If a municipal activity is found to constitute a proprietary, rather than a governmental function, the municipality is not protected from suit by Tenn. Const. art. I, § 17. Crowe v. John W. Harton Memorial Hospital, 579 S.W.2d 888, 1979 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1979), superseded by statute as stated in, Gordon v. Henderson, 766 S.W.2d 784, 1989 Tenn. LEXIS 44 (Tenn. 1989).

Although municipalities do not fall within the aegis of the sovereign immunity doctrine if they are acting in a proprietary capacity, they are considered arms of the state in the exercise of their governmental functions, and, hence, are immune from suit. Crowe v. John W. Harton Memorial Hospital, 579 S.W.2d 888, 1979 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1979), superseded by statute as stated in, Gordon v. Henderson, 766 S.W.2d 784, 1989 Tenn. LEXIS 44 (Tenn. 1989).

The University of Tennessee is an agency of the state of Tennessee and therefore immune from suit except to the extent that it has consented to be sued. Fireman's Fund Ins. Co. v. Bell Helicopter Textron, Inc., 667 F. Supp. 583, 1987 U.S. Dist. LEXIS 11162 (E.D. Tenn. 1987).

Trial court did not err in dismissing a father's lawsuit against the State of Tennessee, the Tennessee Department of Human Services, and the Assistant Commissioner of the Child Support Services Division of the Tennessee Department of Human Services as barred by sovereign immunity because the Father failed to make out any cognizable claim for a violation of 42 U.S.C. § 1983; even assuming, that the father made out a cognizable claim neither the State, the Department, nor the assistant were “persons” within the meaning of § 1983. Payne v. State Dep't of Human Servs., — S.W.3d —, 2012 Tenn. App. LEXIS 846 (Tenn. Ct. App. Dec. 10, 2012).

Trial court did not err in dismissing a father's lawsuit against the State of Tennessee, the Tennessee Department of Human Services, and the Assistant Commissioner of the Child Support Services Division of the Tennessee Department of Human Services as barred by sovereign immunity because the father's complaints were filed in State court and sought only monetary damages; the father sought damages for alleged wrongful actions committed by the Assistance while he was acting in his official capacity. Payne v. State Dep't of Human Servs., — S.W.3d —, 2012 Tenn. App. LEXIS 846 (Tenn. Ct. App. Dec. 10, 2012).

30. —Suits to Recover Goods Seized as Contraband.

A replevin action against employees of the state department of finance and taxation to recover tobacco seized as contraband goods was not a suit against the state within the inhibited class since it was a suit to recover possession of property of the plaintiffs to which neither the state nor its employees assert any claim of ownership or possession except the right of confiscation so that such suit is not brought with a view to reach the state, its treasury, funds or property. Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, 1937 Tenn. LEXIS 70 (1937).

31. —Waiver or Estoppel of State's Immunity.

In action by state to enjoin cutting of timber of land held under tax title and to sustain state's title and right to possession under tax sale, cross bill by intervening tax debtor attempting to set up invalidity of state's title amounted to an attempt to sue the state without its consent and filing of the original suit did not amount to a waiver of the immunity of the state. State v. Sexton, 51 Tenn. App. 385, 368 S.W.2d 69, 1962 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1962).

The language in T.C.A. § 64-1-204 allowing the Chickasaw basin authority to sue and be sued in corporate name is not a waiver of sovereign immunity. Austin v. Memphis, 684 S.W.2d 624, 1984 Tenn. App. LEXIS 3086 (Tenn. Ct. App. 1984), aff'd in part, rev'd in part, Austin v. State, 796 S.W.2d 449, 1990 Tenn. LEXIS 299 (Tenn. 1990).

State cannot be sued in federal court by its own citizens or citizens of another state in the absence of unequivocally expressed consent. Fireman's Fund Ins. Co. v. Bell Helicopter Textron, Inc., 667 F. Supp. 583, 1987 U.S. Dist. LEXIS 11162 (E.D. Tenn. 1987).

Dismissal of a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334, was proper because, for an individual to sustain an action against a state pursuant to USERRA, the action must have been permitted by state law, and the Tennessee general assembly had not passed legislation to expressly waive its sovereign immunity from claims based on USERRA; appellant's claim that the state of Tennessee had impliedly waived its immunity from USERRA claims by expressly waiving its immunity from claims under the Tennessee Human Rights Act, T.C.A. § 4-21-101 et seq., and the Tennessee Disability Act, T.C.A. § 8-50-103(a), was misplaced because any such waiver had to be made in plain, clear, and unmistakable terms. The Tennessee National Guard was a division of the Tennessee Military Department, and thus was an entity of the state of Tennessee, and accordingly, the Tennessee National Guard had immunity from claims arising under the USERRA. Smith v. Tenn. Nat'l Guard, 387 S.W.3d 570, 2012 Tenn. App. LEXIS 552 (Tenn. Ct. App. Aug. 8, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 871 (Tenn. Nov. 21, 2012), cert. denied, 85 L. Ed. 2d 365, 133 S. Ct. 1471, 568 U.S. 1195, 2013 U.S. LEXIS 1807 (U.S. 2013).

Appellate court declined a request by the surviving spouse of a deceased patient for prospective application only of the decision in Cunningham because granting the request would have resulted in an extension to the twelve-month statute of limitations specifically provided under the Tennessee Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq., and a waiver of the State of Tennessee's sovereign immunity. Miller ex rel. Miller v. Cookeville Reg'l Med. Ctr., — S.W.3d —, 2015 Tenn. App. LEXIS 796 (Tenn. Ct. App. Sept. 29, 2015).

State of Tennessee and a town were entitled to dismissal in a property owner's suit to condemn an easement or right-of-way to access landlocked property because the statutory scheme on which the owner relied did not contain an explicit waiver of sovereign immunity. Bratcher v. Hubler, 508 S.W.3d 206, 2015 Tenn. App. LEXIS 833 (Tenn. Ct. App. Oct. 12, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 155 (Tenn. Feb. 18, 2016).

City was entitled to summary judgment on a contractor's contract and estoppel claims, when a real estate developer hired the contractor to upgrade a sewer system, the city approved the upgrade project, and the developer went bankrupt before the completion of the project, because there was no contract between the contractor and the city and the doctrine of sovereign immunity applied. Harakas Constr., Inc. v. Metro. Gov't of Nashville, — S.W.3d —, 2018 Tenn. App. LEXIS 45 (Tenn. Ct. App. Jan. 29, 2018).

Court of appeals erred in reversing the dismissal of a claim filed by a former Lieutenant Colonel in the National Guard under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) because the Lieutenant had actual knowledge that he had suffered an injury sometime before August 8, 2011; therefore, his claim remained barred by sovereign immunity because T.C.A. § 29-20-208 limited the waiver of sovereign immunity to USERRA claims accruing on or after July 1, 2014. Smith v. Tenn. Nat'l Guard, 551 S.W.3d 702, 2018 Tenn. LEXIS 318 (Tenn. June 22, 2018).

32. —Withdrawal of Consent.

The state's consent to be sued expressed by statute may be withdrawn by a repeal of the statute. State ex rel. Bloomstein v. Sneed, 68 Tenn. 472, 1876 Tenn. LEXIS 32 (1876), aff'd, Tennessee v. Sneed, 96 U.S. 69, 24 L. Ed. 610, 1877 U.S. LEXIS 1627 (1878); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897); General Oil Co. v. Crain, 117 Tenn. 82, 95 S.W. 824, 1906 Tenn. LEXIS 32, 121 Am. St. Rep. 967 (1906), aff'd, 209 U.S. 211, 28 S. Ct. 475, 52 L. Ed. 754, 1908 U.S. LEXIS 1728 (1908)The obligation of contracts is not impaired by the repeal of the statute allowing suits against the state, even after the suit was commencedState v. Bank of Tennessee, 62 Tenn. 395, 1874 Tenn. LEXIS 67 (1874).

33. —Extent of Recovery.

In a suit by a taxpayer to recover taxes, interest on the money paid under protest could not be recovered. New England Mut. Life Ins. Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238, 1935 Tenn. LEXIS 19 (1935).

Property owners were not entitled to discretionary costs in an eminent domain proceeding because the Tennessee Rules of Civil Procedure did not authorize an assessment of discretionary costs in contravention of the State of Tennessee's sovereign immunity under the Tennessee Constitution. Moreover, an assessment of expert witness and court reporter fees was not expressly authorized by statute State v. Anderson, — S.W.3d —, 2015 Tenn. App. LEXIS 333 (Tenn. Ct. App. May 15, 2015).

Trial court had no authority to assess attorney's fees against the county based on equitable considerations alone, given that the county was a political subdivision of the State and was therefore entitled to sovereign immunity, for purposes of T.C.A. § 20-13-102(a). Zumstein v. Roane Cty. Executive/Mayor, — S.W.3d —, 2017 Tenn. App. LEXIS 573 (Tenn. Ct. App. Aug. 21, 2017).

34. —Funds.

Private contributions, as well as revenues generated by a department of a state educational institution, become state funds and are thus protected by the sovereign immunity of a state. Greenhill v. Carpenter, 718 S.W.2d 268, 1986 Tenn. App. LEXIS 3582 (Tenn. Ct. App. 1986).

35. Statutes of Limitation.

Ten-year ceiling in products liability actions in § 29-28-103 did not violate open court provisions of constitution. Stutts v. Ford Motor Co., 574 F. Supp. 100, 1983 U.S. Dist. LEXIS 12082 (M.D. Tenn. 1983).

Tolling of the ten-day period for appeal from the general sessions court to the circuit court was not constitutionally required where the owner simply mistakenly presumed that the ten-day period for appeal to the circuit court would be tolled by the filing of his petition to rehear in general sessions court; due process did not require a tolling of the ten-day period for appeal. Jackson Energy Auth. v. Diamond, 181 S.W.3d 735, 2005 Tenn. App. LEXIS 22 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 700 (Tenn. Aug. 22, 2005).

36. Death Penalty.

Statutes pertaining to sentencing for first degree murder and appeal and review of a death sentence are not violative of the U.S. Const. amends. 5, 6, 8, and 14, nor of Tenn. Const. art. I, §§ 8, 9, 16, and 17, and Tenn. Const. art. II, § 2. State v. Shepherd, 902 S.W.2d 895, 1995 Tenn. LEXIS 269 (Tenn. 1995).

In a felony murder case, a court did not err by denying defendant's motion for a continuance where defendant completely failed to demonstrate that the findings or testimony of expert witnesses would have been favorable to the defense. In short, the defendant failed to establish that the trial court abused its discretion, because there was no indication that he was denied a fair trial or that the result of the proceeding would have been different had a continuance been granted. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

37. Actions by Prisoners.

A prisoner has a constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right; however, this is a qualified and restricted right. Knight v. Knight, 11 S.W.3d 898, 1999 Tenn. App. LEXIS 279 (Tenn. Ct. App. Apr. 21, 1999).

The question of whether to permit a prisoner/litigant in a civil suit to be physically present is within the trial court's sound discretion. Knight v. Knight, 11 S.W.3d 898, 1999 Tenn. App. LEXIS 279 (Tenn. Ct. App. Apr. 21, 1999).

Inmate's petition for writ of certiorari was properly dismissed where placement of inmate in administrative segregation did not require a signature from the warden and/or written notice to inmate, and did not violate his due process rights; there was good reason for the segregation, which was not punitive but necessary in order to combat his disruptive and dangerous propensities and to protect staff and other inmates. Settle v. Tenn. Dep't of Corr., 276 S.W.3d 420, 2008 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 27, 2008).

38. Parental Rights.

It would be a violation of the parent's constitutional rights if the parent were denied a day in court on either the other parent's petition to modify or the original petition to relocate the children. Placencia v. Placencia, 48 S.W.3d 732, 2000 Tenn. App. LEXIS 824 (Tenn. Ct. App. 2000).

T.C.A. § 36-1-113(g)(6) is constitutional and does not violate a parent's due process rights because trial court does not have to make a finding of unfitness or a risk of substantial harm after finding at least one of the statutory grounds for termination of parental rights. In re T.M.G., 283 S.W.3d 318, 2008 Tenn. App. LEXIS 713 (Tenn. Ct. App. Nov. 25, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 86 (Tenn. Feb. 24, 2009).

Clear and convincing evidence supported terminating a father's parental rights on grounds of abandonment by wanton disregard because the father abused prescription pain and anxiety medications in the family home, had to “doctor shop” in order to obtain the medication, and nutritionally and medically neglected the eight-month-old child. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

Clear and convincing evidence supported terminating a father's parental rights on grounds of severe child abuse because the eight-month-old child suffered a subdural hematoma, retinal hemorrhages, and fractures to his right leg while solely in the father's care, and the injuries were “non-accidental”; the child suffered hearing loss and developmental delays as a result of the injuries. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

Termination of a mother's and a father's parental rights was in the best interest of an eight-month-old child because the parents: (1) refused to acknowledge their documented history of domestic violence, such that physical abuse remained a concern in the home; (2) were unable to maintain visitation with the child due to a No Contact Order; (3) abused or neglected the child; and (4) currently resided with someone who had been convicted of sodomy and carnal knowledge of a child. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

Clear and convincing evidence supported terminating a mother's parental rights on grounds of abandonment by wanton disregard because the mother refused to show concern for the eight-month-old child's physical health, specifically his nutritional health and weight, which demonstrated a broader pattern of conduct that rendered the mother unfit; the mother missed a recheck appointment after a pediatrician expressed concern about the child's low weight and poor growth rate. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

Clear and convincing evidence did not support terminating a mother's parental rights on grounds of severe child abuse because the mother could not be charged with the knowledge that the father would harm their child based on his violence towards her and his ex-wife, there was no evidence indicating the father had ever exhibited violence towards a child, and there was no evidence to suggest there were signs of any injuries to the child before his admission to the hospital. In re Jaden W., — S.W.3d —, 2014 Tenn. App. LEXIS 856 (Tenn. Ct. App. Dec. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 280 (Tenn. Mar. 25, 2015).

39. Mandatory Arbitration.

Courts may not deny parties to litigation access to the court by forcing them into binding arbitration. Team Design v. Gottlieb, 104 S.W.3d 512, 2002 Tenn. App. LEXIS 508 (Tenn. Ct. App. 2002), overruled in part, Tuetken v. Tuetken, 320 S.W.3d 262, 2010 Tenn. LEXIS 873 (Tenn. 2010).

40. Remedy by Due Process of Law — Criminal Proceedings.

Where defendant was retried for felony murder, the prosecution was not permitted to use collateral estoppel against the defendant to establish the underlying offense of aggravated burglary; this would violate defendant's right to due process and right to trial by jury as to every element of the charged offense. State v. Scarbrough, 181 S.W.3d 650, 2005 Tenn. LEXIS 1044 (Tenn. 2005).

Although the State had a duty to preserve the rape kit, the loss of the rape kit did not deprive defendant of his right to due process in a fundamentally fair trial because the rape kit had no exculpatory value as defendant admitted in his videotaped interview that he had consensual sex with the victim and, thus, his identity was not at issue; and the evidence at trial was overwhelmingly sufficient to prove that the victim did not consent to have sex with defendant. State v. Stanley, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. Oct. 15, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 135 (Tenn. Feb. 12, 2015).

Because there was nothing in the record to indicate that an audio recording between defendant and an Oklahoma detective ever existed, that the State possessed and lost an audio recording of the interview, or that the State could have obtained it from Oklahoma police through the exercise of due diligence, defendant's right to due process was not violated by the State's failure to preserve or disclose the alleged audio recording. State v. Stanley, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. Oct. 15, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 135 (Tenn. Feb. 12, 2015).

41. —Prosecutorial Prejudice.

Defendant produced no evidence to support allegation that his refusal of plea bargain led to prosecutorial vindictiveness in violation of state and federal due process and equal protection guarantees. Henderson v. State, 539 S.W.2d 843, 1976 Tenn. Crim. App. LEXIS 388 (Tenn. Crim. App. 1976).

42. Court Records Request.

Trial court did not act illegally, fraudulently, or arbitrarily by denying a request by parents of the victims in underlying criminal cases to unseal a redacted Tennessee Bureau of Investigation file because the parents did not have a statutory right or a constitutional right to access the confidential information. State v. Cobbins, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 78 (Tenn. Crim. App. Feb. 4, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 661 (Tenn. Aug. 13, 2015).

NOTES TO DECISIONS

1. Application and Scope of Provision.

Manifestly, the provision of Tenn. Const. art. I, § 18 has no reference to the enforcement of the collection of fines, penalties, and costs imposed on defendants convicted of misdemeanors in violation of state statutes or city ordinances; and for failure to pay or secure fines, penalties, and costs, defendants so convicted shall be committed to the workhouse to work out the same. Mosley v. Gallatin, 78 Tenn. 494, 1882 Tenn. LEXIS 213 (1882); Ex parte Griffin, 88 Tenn. 547, 13 S.W. 75, 1889 Tenn. LEXIS 75 (1890); State v. Hoskins, 106 Tenn. 430, 61 S.W. 781, 1900 Tenn. LEXIS 178 (1900); O'Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449, 1908 Tenn. LEXIS 36, 127 Am. St. Rep. 1014 (1908).

2. Discovery and Appropriation of Specific Property in Possession of Defendant.

The chancery court has jurisdiction, upon a bill filed by a complainant, whose execution has been returned unsatisfied, to compel a judgment debtor to discover any specific property lawfully subject to the payment of his debts, as United States bonds, and to compel him to disclose where the property is, and, by process of attachment for contempt, to compel him to deliver it up for the satisfaction of complainant's judgment, and the bill may be filed against the debtor alone. The imprisonment for the willful and contemptuous disobedience of the lawful orders of the court in refusing to answer, or in refusing to deliver up the property disclosed by his answer, is not imprisonment for debt. Cresswell v. Smith, 76 Tenn. 688, 1881 Tenn. LEXIS 65 (1881)and especially 697 (reversing Chancellor Cooper's decision reported in (1875), 2 Cooper's Tenn. ch. 416)Webb v. Jones, 81 Tenn. 200, 1884 Tenn. LEXIS 24 (1884) (but no discovery and appropriation of money in defendant's possession).

3. Failure to Pay Alimony — Attachment for Contempt.

Although the majority of the state courts hold, where a divorce case is under the full control of the court, that alimony is not merely a debt but that its payment is an act which the court has ordered the husband to perform, and that he may be attached for contempt for failure to obey such order, without violation of such a section as this, judgment for permanent alimony which has become final will not be enforced by attachment for contempt where the equities of the situation do not so require. Going v. Going, 148 Tenn. 522, 256 S.W. 890, 1923 Tenn. LEXIS 42, 31 A.L.R. 633 (1923).

4. City Ordinances.

Provision of city ordinance requiring imprisonment of defendant for failure to pay a fine does not violate Tenn. Const. art. I, § 18. Thompson v. State, 191 Tenn. 221, 232 S.W.2d 42, 1950 Tenn. LEXIS 568 (1950); O'Dell v. Knoxville, 54 Tenn. App. 59, 388 S.W.2d 150, 1964 Tenn. App. LEXIS 145 (Tenn. Ct. App. 1964), overruled in part, City of Chattanooga v. Davis, 54 S.W.3d 248, 2001 Tenn. LEXIS 635 (Tenn. 2001).