Recently in Appeals Category

Tennessee Court of Appeals Rules that a Victim of a Sexual Crime can also be an Accomplice to the Same Crime

July 23, 2012, by The McKellar Law Firm, PLLC

In an odd ruling, the Tennessee Court of Criminal Appeals, in the matter of State v. Collier, No. W2010-01606-CCA-R3-CD, ruled earlier this month that a victim in an aggravated statutory rape case can also be an accomplice to the same crime.


The defendant was a forty-two year-old man who was convicted of aggravated statutory rape after having sexual intercourse with a fourteen year-old victim. While the defendant argued at trial that he never had sexual intercourse with her, on appeal he argued that the evidence was not sufficient to convict him because the victim was, in fact, an accomplice to the criminal activity.

Under current Tennessee common law, whether a sex crime victim over the age of thirteen is an accomplice depends on whether the victim voluntarily consented to the sexual activity. See State v. Scott, 338 S.W.2d 581, 583 (Tenn. 1960). A "victim," per T.C.A. ยง 39-13-501(8) is defined as the "person alleged to have been subjected to criminal sexual conduct." An "accomplice," as set forth in State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995), is defined as one who "knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime."

While the appellate court in the Collier case stated it had misgivings about classifying sex crime victims as accomplices, this did not stop it from admitting, "Under the current law, it appears that the victim in this case would legally be considered an accomplice to her own statutory rape." The appellate court reasoned that because the victim admitted to having consensual sex, she would be considered an accomplice to the crime of committing aggravated statutory rape.

The effect of this somewhat bizarre reasoning is that the victim's testimony would now be subject to "accomplice scrutiny." Under Tennessee law regarding accomplice testimony, "there must be some fact testified to, entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference, not only that the crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant's identity." State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). This "accomplice scrutiny" is a higher standard than mere testimony provided by a victim. But in the end, the appellate court affirmed the defendant's conviction because other testimony and evidence corroborated with the victim/accomplice's testimony.

Supreme Court to Decide Whether Apprendi Applies to Corporate Fines

March 21, 2012, by The McKellar Law Firm, PLLC

In Southern Union Co. v. United States, No. 11-94 (2012), a federal court judge imposed fines of $6 million and $12 million for illegal storage of mercury by Southern Union Company. The decision has been appealed to the United States Supreme Court on the grounds that the judge ordered penalties that were inconsistent with the statute's maximums. The statute states a maximum penalty for the infraction is $50,000 per day. The jury in the federal court was not asked to make a decision on how many days the Southern Union Company violated the law.


The case has caused the Supreme Court to interpret the case of Apprendi v. New Jersey, 530 U.S. 466 (2000), as it relates to criminal fines. Apprendi held that the Sixth Amendment prevented judges from increasing prison sentences beyond statutory maximums based on facts that are not submitted to a jury. Now the Supreme Court must decide if they are willing to extend that logic to monetary fines.

According to the ABA Journal, government attorney Michael Dreeben supports the federal judge's decision stating that, "deprivations of life and liberty get greater protection than financial penalties." This ruling may have severe financial implications for those persons or entities facing potential criminal fines.

6th Circuit Vacates Conviction Due Partly to Prosecutor's Misconduct

March 7, 2012, by The McKellar Law Firm, PLLC

In United States v. Timothy Parkes, the Sixth Circuit Court of Appeals overturns a conviction in part due to prosecutorial misconduct based on statements by the prosecutor in closing argument. Parkes was originally convicted in Chattanooga, Tennessee, for ten counts of bank fraud.


While the Parkes case has a few interesting tidbits, the most interesting point relates to the conduct of the prosecutor in closing arguments. The Assistant U.S. Attorney concluded his rebuttal argument "with a wholly inappropriate statement to the jury," in which he warned that an acquittal would "let [Parkes and co-Defendant Mourier] keep the
$4 million." The Court writes that "The prosecutor made this statement even though he knew--and had earlier moved the district court to prevent the admission of evidence establishing--that Parkes and Mourier had already paid off most of the money that Remington had borrowed from Benton Bank."

The prosecutor stated in his rebuttal closing argument:

Your Government just wants you to do what is right. And if it's right to acquit [Parkes and Mourier], you do it, you let them keep the $4 million, you tell the government, "Shame on you for persecuting these poor people."

Such a statement was improper because a) the prosecutor knew the statement was false because Parkes had already repaid approximately $3.2 million to the bank, and b) the repayment of any monies (or failure to repay any monies) to the bank "would not be a reason to convict [Parkes] on the counts charged in the indictment." Ironically, prior to this closing argument, the prosecutor had moved to exclude any evidence that Parkes had repaid any monies to the bank. Every time Parkes attempted to introduce evidence of the repayment in trial, the prosecutor objected.

The Court concluded:

Yet incredibly, at the very end of the case, in the final words of an argument to which Parkes had no opportunity to respond, the prosecutor suggested--contrary to the very evidence the government had fought so hard to exclude--that Parkes would keep the Bank's money unless the jury found him guilty. All of which points us to one conclusion: The prosecutor's improper remark was not only misleading and highly prejudicial, it was deliberately made.

Fortunately, the Sixth Circuit reversed the decision of the trial court and vacated Parkes' conviction.