Knoxville

Many Tennessee criminal cases begin in General Sessions Court, although some prosecutions may begin through an indictment or presentment by a grand jury. For a defendant who is arrested or served with a criminal summons before indictment or presentment, a preliminary hearing can be an important stage of the case.

Recently, I represented a client in General Sessions Court and discussed the State’s offer to resolve the charge. My client initially believed it might be easier to plead guilty and simply put the matter in the past. After reviewing the case again, I asked whether the client wanted to plead guilty because the client believed the charge was actually true. The answer was no—the client simply did not want to continue dealing with the case.

For that reason, I advised against entering a guilty plea simply to end the process, and we proceeded with a preliminary hearing. The ultimate decision whether to enter a plea belongs to the client after consultation with counsel.

A preliminary hearing is not a trial. Its primary purpose is to determine whether there is sufficient evidence that an offense was committed and probable cause to believe the defendant committed it. Probable cause is a substantially lower standard than proof beyond a reasonable doubt, but it requires more than mere suspicion. If probable cause is found, the case is generally bound over to the grand jury. That determination does not mean the defendant has been found guilty.

If probable cause is not established, the General Sessions judge may discharge the defendant at that stage. Even then, Tennessee law permits the State to pursue a subsequent prosecution for the same alleged offense.

Another important feature of a preliminary hearing is the opportunity to hear and test portions of the State’s evidence. The State must present sufficient evidence to establish probable cause, although it is not required to call every witness or present its entire case. A defendant has the right to cross-examine witnesses called against him or her and may also present evidence within the scope permitted by the court.

The preliminary hearing is also preserved by electronic recording or its equivalent. If the defendant is later indicted, that recording can be made available to the defense. The testimony given at the hearing can therefore become important when evaluating the State’s evidence and preparing the defense as the case moves forward.

Whether to exercise or waive the right to a preliminary hearing can involve important strategic considerations. A defendant should not enter a plea simply because the criminal process is stressful or inconvenient without first understanding the consequences and discussing the available options with counsel.

The following are examples of results from prior cases I handled. They are not guarantees or predictions of the result in any other case. Every criminal matter depends on its own facts, evidence, charges, and procedural history.

A. One client was charged with a second-offense DUI, which carries a mandatory minimum period of incarceration upon conviction under Tennessee law. After the preliminary hearing, the grand jury returned a no true bill.

B. Another client was charged with robbery, a Class C felony, and Class D felony theft as charged in that case. After the preliminary hearing, the prosecutor asked the grand jury to return a no true bill.

C. In another case, a client was accused of robbery. Following the preliminary hearing, the case was ultimately resolved with a plea to misdemeanor theft and an 11-month-and-29-day probationary sentence.

Professionals meeting in an office after discussing an agreement

I have also obtained a dismissal from a General Sessions judge following a preliminary hearing. In that case, the State’s witness testified about an argument on Facebook and then claimed that someone must have hacked her account and made threats under her name during the same period in which she was communicating with the defendants.

That result, like the examples above, depended on the particular evidence and circumstances of that case.

A preliminary hearing can be an important stage of a Tennessee criminal case. Whether to proceed with or waive the hearing should be decided only after considering the facts, the State’s evidence, the potential benefits and risks, and the advice of counsel.

Written by: J. Christian Stadler, III

The Knox County District Attorney General’s office started charging individuals with the crime of burglary, a D Felony offense, in mid-2016, purportedly as a means to crack down on repeat shoplifters. The theory goes that when a person enters a building (other than habitation), without the effective consent of the owner, and with the intent to commit (or actually commits) a felony, theft, or assault, then that person commits a burglary under T.C.A. 39-14-402(a)(3).
This theory was put in to practice by using stores’ “No Trespass” lists. Stores have the absolute right to tell an individual that they are not allowed back on to the stores’ (respective) property – usually because that individual was attempting to shoplift. In effect, the store has then expressly withdrawn its “consent” for a person to enter its building. The building, not being someone’s home, qualifies as “other than habitation.” The logical conclusion then is that when a person enters the store and shoplifts (or attempts to do so), then that person has committed a burglary under T.C.A. 39-14-402(a)(3).
A case out of Putnam County has now gone through the Court of Criminal Appeals – State of Tennessee v. Danielle Chandria Jensen. No. M2016-01553-CCA-R10-CD addressing this subject. It is important to note that this appellate case did not over turn a conviction; it upheld the trial court’s dismissal of the charge on the basis of prosecutorial vindictiveness. However, the appellate court judge noted that absent prosecutorial vindictiveness, charging individuals with burglary of a business while it is open to the public is a violation of due process:

“The legislative history strongly implies that subsection (a)(3) of Tennessee’s burglary statute was never intended to cover buildings open to the public, like Wal-Mart. By charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting, prosecutors are abusing their charging discretion by unilaterally and unreasonably expanding the reach of the burglary statute. While the maximum sentence for a misdemeanor theft or shoplifting conviction is eleven months and twenty-nine days in the local jail, even for a repeat offender, the sentence range for a person convicted of burglary is two to twelve years in prison. See T.C.A. §§ 39-14-103, -105, -146, -402; XX-XX-XXX(b)(4), (e)(1). Our review of the legislative history of the burglary statute shows that charging of burglary in these instances is unreasonable, unjust, and violative of due process. For all of these reasons, we affirm the trial court’s dismissal of the burglary charge in this case.”

Legal professionals reviewing documents together in an office

If you have been charged with burglary of a business – Wal-Mart, Kroger, Target, etc. etc. – that was open to the public at the time of the alleged offense, my advice is to take it to trial. It is not often that the court of appeals would use such strong language, as like that cited above, in a unanimous decision. Additionally, if one pleads guilty in a scenario such as these, the individual may not be able to enjoy relief if convictions are later overturned by the courts – thus the necessity of a trial, in my view.

http://www.knoxnews.com/story/news/crime/2017/09/05/tennessee-walmart-shoplifters-burglars/621518001/?cookies=&from=global

I will argue this issue before Judge Steve Sword on Friday, September 8, 2017.

Written by: J. Christian Stadler, III

Practice Points concerning Preliminary Hearings

Knox County’s Wrongful Application of the Tennessee Burglary Statute