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State v. Hernandez

Court of Criminal Appeals of Tennessee, Nashville

May 15, 2019


          Session August 14, 2018

          Appeal from the Criminal Court for Davidson County No. 2013-C-2028 Steve Dozier, Judge

         In 2013, a Davidson County jury convicted the Defendant, John Steven Hernandez, of first degree premeditated murder for a killing that occurred in 1993, for which the trial court imposed a sentence of life in prison. On appeal, the Defendant contends that the trial court erred when it: (1) did not dismiss the charge against him based on pre-indictment delay; (2) did not dismiss the charge against him based on post-indictment delay; (3) denied his motion to suppress evidence; (4) made several erroneous evidentiary rulings; and that (5) the evidence is insufficient to sustain his conviction; and that (6) the Defendant is entitled to a new trial based upon the cumulative effect of the errors. After review, we affirm the trial court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Jeffrey A. DeVasher (on appeal), Georgia Sims and Kevin J. Griffith (at trial), Assistant Public Defenders, Nashville, Tennessee; Angela L. Bergman and David R. Esquivel (on appeal), Nashville, Tennessee, for the appellant, John Steven Hernandez.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Stacy L. Rebecca and Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which D. Kelley Thomas, Jr., and J. Ross Dyer, JJ., joined.



         I. Facts

         This case arises from the murder of Annis Szekely, which occurred in her home in East Nashville on March 7, 1993. On July 23, 2013, a Davison County grand jury indicted the Defendant, who was the estranged husband of the victim's daughter, for first degree premeditated murder. The Defendant filed an affidavit of indigence and the trial court appointed him counsel.

         A. Pre-Indictment and Post-Indictment Delay

         On April 23, 2014, the Defendant entered a plea of not guilty to the charge against him, and the trial court set a hearing for May 22, 2014. On January 21, 2015, the State moved the trial court to reset the case, which at the time of the motion was set for June 8, 2015. On February 6, 2015, the Defendant's attorney informed the trial court the State had requested the case be reset and that the Defendant was "not opposed" to the case being reset. The parties agreed to reset the trial for August 17, 2015.

         On August 5, 2015, the Defendant filed a motion seeking a continuance of the trial because his counsel had learned there was DNA evidence remaining from scrapings taken from underneath the victim's fingernails that could be independently tested. The trial court granted the motion and reset the trial for April 4, 2016.

         On February 2, 2016, the Defendant filed a pro se motion asking the trial court to appoint him as co-counsel because his current counsel had not been responsive. The trial court denied this motion.

         On March 30, 2016, the Defendant filed a motion to dismiss the case for speedy trial violation or, in the alternative, be granted a continuance. The Defendant noted there had been a twenty-year delay between the crime and the State's filing of the indictment, which he asserted violated his right to due process. The motion stated further that Defendant's counsel was still unprepared for trial two years after being appointed, so the Defendant would have to give up his right to a speedy trial in order to obtain competent counsel. The motion argued that the pre-indictment delay violated the Defendant's due process right and that the post-indictment delay violated his right to a speedy trial. The State countered that the Defendant had not shown that it had intentionally caused the delay or that he was prejudiced by the delay.

         The parties then referenced a motion that the Defendant's counsel ("Counsel"), an assistant public defender, had filed the day before the March 31 hearing. Counsel acknowledged that even though the Defendant's trial was scheduled for the following Monday, she was unsure whether she could be prepared to argue the motion at the present time. Counsel then discussed the pre-indictment and post-indictment delay, saying that she considered herself a State actor for purposes of determining whether the Defendant's speedy trial rights had been violated. She asserted that her unpreparedness should be imputed to the State because she was paid by the State, who did not adequately fund her office. Insufficient funding caused her caseload to be "excessive" and thus she was unable to adequately prepare for the Defendant's trial. She noted the Defendant had waited nine months before being extradited and had endured a three-year delay. She further noted that it had been two years since the Defendant had been arraigned. The Defendant's counsel noted that there had been "delays on both sides," and said that while she had thought she would be prepared for trial, she was not. She further informed the trial court that her unpreparedness put the Defendant in the untenable position of having to either waive his right to a speedy trial or, in the alternative, to represent himself.

         The Defendant's counsel asked that the trial court dismiss the indictment or, in the alternative, release the Defendant on his own recognizance. The Defendant's counsel reiterated that it was the Defendant's desire not to continue the case. He wanted to proceed, even if it meant moving forward pro se because he had been incarcerated for more than two years. The State said that it was ready to proceed on the set trial date of April 4, 2016.

         The trial court set a hearing for April 11, 2016, during which it tasked the parties to present evidence about the pre and post indictment delays.

         At the April 11, 2016 hearing, the Defendant's counsel informed the trial court that she was prepared to move forward with presenting proof on the pre-indictment delay but that she needed at least a month to prepare evidence on the post-indictment delay issue.

         The Defendant's counsel asked that the trial court appoint outside counsel to litigate the issue of the post-indictment delay. The trial court set a hearing for that particular issue for May 9, 2016, and the hearing then proceeded on the pre-indictment delay issue.

         1. Pre-Indictment Delay

         Glenn Arnold testified that he was an investigator for the Public Defender's office and had investigated this case. He said he had visited the police property room on two occasions, and reviewed and photographed the items displayed to him on both occasions. Mr. Arnold testified that when he first viewed the evidence in January 2015, some of the items were stored in plastic bags with tears or holes in them and that some of the bags were empty. Mr. Arnold agreed that there were a "number" of evidence bags that were torn, ripped, or damaged in some way. He photographed those bags.

         Mr. Arnold testified that he saw two test tubes: a human blood sample and a saliva sample. The property tag had a different defendant's name, different incident number, and different victim's name. On his second trip to the property room in April 2016, Mr. Arnold noticed some of the evidence had been re-bagged. He took additional pictures of that evidence. Mr. Arnold testified that he never encountered anything that was identified as the Defendant's blood.

         Mr. Arnold testified that when he viewed the evidence the week before the hearing, the evidence that included a different defendant's name and a different victim's name was no longer included.

         Mr. Arnold testified that several of the witnesses in this case were now deceased. One of the witnesses was Dr. Charles Harlan, the medical examiner who conducted the autopsy, and the other was Detective E. J. Bernard, who investigated the case. He also believed that a civilian witness, Andrew Saicasson, was deceased.

         During cross-examination, Mr. Arnold agreed that Mr. Saicasson was one of the victim's sons and that he was not in town when the homicide occurred. Mr. Arnold agreed that Dr. Harlan's report was contained in the discovery and that another medical examiner could review the doctor's findings and testify about the report.

         Mr. Arnold agreed that the victim had been found with her hands tied and bound to a bed with a plastic bag over her head. While he was unsure whether the items missing from the property room would have been helpful to the defense, he said that it would have been helpful if the defense could have seen the items law enforcement gathered, which included chains, straps, a book called "Slave Mistress," a black mask, a leather mouth part, clamps, hooking tightener, bullets, and a pistol. Mr. Arnold also agreed that the Defendant's DNA had been taken by swab while he was incarcerated in Texas on an unrelated matter, and sent to Tennessee for testing. The Defendant's DNA was not taken from a vial of blood contained in evidence.

         Amber Elaine Treat, a private investigator, testified that the Public Defender's office hired her to assist in this investigation. She read the discovery report and investigated potential alibi witnesses. She recounted that the Defendant said he had been working at Labor Source on March 6 before the murder, so she contacted the owner of Labor Source, Michael Dodson. She said Mr. Dodson told her he was unable to retrieve the "punch-in, punch-out" records for 1993 because the computer software only kept track of payments made and not the time records of his employees. He also said he was only required to keep time records for seven years, so the Defendant's time records no longer existed.

         Ms. Treat said she listened to an audio recording of an interview with Kalon Radovich, the son of the Defendant's ex-wife, Victoria Ramsey[1], and the grandson of the victim. Mr. Radovich had found the victim's body. Ms. Treat said that the statement was a thirty-seven-minute audio file, but that the audio cut off after the three-minute mark.

         Ms. Treat said she traveled to the crime scene in this case. She said the house had been completely "gutted and remodeled." In 1993, the house was a divided duplex, with two families living in the home. At the time of her investigation, the house was a single-family house and the dividing walls had been removed.

         During cross-examination, Ms. Treat acknowledged that the State alleged the crime occurred on March 7, not March 6, when the Defendant had said he was working. She said, however, that there were discrepancies in the time frame, and proof the Defendant was working on March 6 would still have aided the defense because they could have argued that the murder actually occurred on March 6 while he was working.

         The State called Mike Smith, who testified that he was a detective for Metropolitan Nashville Police Department ("Metro PD") at the time of this crime in 1993, but had since retired. Detective Smith acted as the lead detective in this investigation, working with several other investigators. Detective Smith testified that he was working on March 7, 1993, when he got a call that the victim's body had been found. He went to the scene, where he found present two other detectives, Detectives Mann and Fowler. The detectives had different assignments to document the crime scene.

         Detectives Mann and Fowler and Sergeants Moore and McElroy all interviewed witnesses and the victim's relatives. Detective Smith said he prepared a report, which he supplemented for the last time on March 30, 1993.

         Detective Smith testified that he took evidence from the property room to the Tennessee Bureau of Investigations ("TBI") crime laboratory for testing. Detective Smith reviewed the file and testified that Detective Larry Flare supplemented the file on February 3, 1998; Detective Ray Ellum supplemented the file on August 13, 2001; Detective Terry McElroy, who was deceased at the time of the hearing, supplemented the file on August 14, 2001; and Detective Lee Freeman supplemented the file on February 24, 2006.

         During cross-examination, Detective Smith testified that he was involved in executing a search warrant at the Defendant's home on March 8, 1993, at 5:00 a.m. Detective Smith said that he spoke with Victoria Ramsey later that day on the evening of March 8, 1993. He also interviewed several witnesses, including Judy Crabtree on March 11, 1993, and Kevin and Pam Bush on March 15, 1993. Detective Smith said that he had recorded audio from his interview with Ms. Bush. On March 16, 1993, Detective Smith again spoke with Ms. Ramsey. During that interview, Ms. Ramsey said she had spoken with the Defendant about how the victim had died. The detective recalled that Ms. Ramsey had also given him a recording of a phone conversation between Ms. Ramsey and the Defendant.

         Detective Smith testified that the investigation notes revealed that on March 23, 1993, Officer Blackwood told him that the fingertip of a latex glove stuck to Scotch tape had been found around the victim's neck. On March 30, Ms. Singleton, the woman with whom the Defendant lived at the time of this offense, called to inform Detective Smith about conversations she had had with the Defendant.

         Detective Smith said that he wrote a memo to Lieutenant Jay Cobbs on May 6, 1993, informing the lieutenant that the TBI had determined the DNA sample under the victim's fingernails was too small for testing.

         Detective Smith identified a report from 2001, after he had been reassigned to another division, which documented discussion with the Kentucky State Police as to whether Ms. Ramsey would be willing to be wired to speak with the Defendant, who was then in their custody.

         During redirect examination by the State, the detective testified that the evidence he brought to the crime laboratory did not provide a physical link between the Defendant and the crime scene.

         James Adendall, a detective with the Metro PD cold case unit, testified that his unit reviewed this case in January 2010. He looked at the evidence, reviewed the interviews, and attempted to locate witnesses involved in the case. He also resubmitted some evidence for testing in 2010 and in 2012. Detective Adendall testified that he located the victim's fingernail scrapings and sent them to the Orchid Cellmark forensic laboratory (hereinafter "Cellmark") in Dallas, Texas for testing. The detective said that in 2011, Detective Silfress of the Kentucky State Police informed him that he was working on a case in Kentucky involving the Defendant and that he had DNA from a water bottle used by the Defendant. Also around that time, Detective Adendall sent the clear tape and latex glove evidence to Cellmark for testing. In February 2012, Detective Adendall obtained a search warrant and obtained a sample of the Defendant's DNA by travelling to Texas, where the Defendant was incarcerated on an unrelated case, and executing the warrant for the Defendant's DNA. Detective Adendall then submitted the sample to Cellmark for analysis.

         Detective Adendall testified that in June 2013, he received results from Cellmark that physically linked the Defendant to the victim's murder, and he presented the case to the Davidson County grand jury. The Defendant was indicted in 2013. The Defendant was extradited from Texas to face charges in Tennessee on April 4, 2014.

         During cross-examination, Detective Adendall testified that his unit investigated unsolved cases at least a year old. He agreed that when he received the case file in January 2010, it was well-documented. Detective Adendall agreed the interview with Kaylin Radovich ended abruptly because the recording equipment malfunctioned. He also agreed that many of the interviews were difficult to hear because of the equipment in use at the time.

         Detective Adendall said that as part of his investigation, he re-interviewed Shirley Singleton, Victoria Ramsey, and two other witnesses.

         Detective Adendall testified that he originally sent items to the TBI to be tested, but the TBI informed him that it did not have the technology to test those items and that they would need to be tested privately. He then contacted Cellmark and sent the items to them for testing. He sent them swabs from the victim, nail clippings, and the Defendant's watch. In September 2010, Ms. Leile at Cellmark advised him that a male's DNA had been found under the victim's fingernails. In October 2010, he learned that law enforcement did not have a known DNA profile for the Defendant. Detective Adendall said he then contacted the Kentucky State Police, who responded in February 2011 saying that they had a DNA profile for the Defendant. Cellmark, however, needed an actual sample from the Defendant, not just the DNA profile, so Detective Adendall met with the Kentucky State Police who gave him a cup and water bottle used by the Defendant. He sent those items to Cellmark in April 2011. In May 2011 Cellmark did testing of the nail clippings and the water bottle and prepared a report.

         Detective Adendall said that, in July 2011, he asked Cellmark if they could test the latex glove tip and the clear tape. He received a report on the analysis of these items at the end of October 2011.

         The detective said that in January 2012, he reviewed and summarized a taped phone conversation between the Defendant and Ms. Ramsey. Later that month, he sought a search warrant to obtain the Defendant's DNA, who was then in Texas. He went to Texas, collected a buccal swab with the Defendant's DNA and subsequently sent the sample to Cellmark. Ms. Leile emailed him a final report on February 28, 2012. The report included the Defendant as a possible contributor of the DNA found under the victim's fingernails. Shortly thereafter, Detective Adendall gave a copy of this report to Tom Thurman with the District Attorney's Office. On March 14, 2013, the detective received an email from Ms. Leile asking permission to discuss the case with Mr. Thurman. He granted her permission and, in July 2013, forwarded witnesses names and phone numbers to the District Attorney's Office. The Defendant was indicted in June or July 2013.

         Detective Adendall testified that in January 2015 he contacted Cellmark to ask if it had returned the evidence to the property room, and discovered the evidence had not yet been returned. At the State's instruction he asked Cellmark to hold the property for potential further testing. In May 2015, he contacted Ms. Leile to inform her that he was sending her buccal swabs from Mr. Radovich, the victim's grandson, for comparison. Cellmark returned the property to the property room in August 2015.

         2. Post-Indictment Delay

         The parties reconvened on May 9, 2016, and presented evidence regarding the post-indictment delay. Counsel informed the trial court that she was still not ready to proceed on the issue of whether the Public Defender's Office's underfunding and understaffing denied the Defendant his right to a speedy trial. She said she was attempting to secure outside counsel to present the issue properly. Counsel argued that, while the trial court could set a trial date, she could not and would not guarantee she would be ready for trial.

         The State responded and asked that the Public Defender's Office be removed from the case because they were going to put the case off indefinitely. The State asked the trial court to appoint an attorney that could prepare the case and proceed with a trial. Defense counsel responded that the Defendant was entitled to consistent, effective representation and a speedy trial, which were in conflict by the caseload at the Public Defender's Office.

         On May 25, 2016, the parties reconvened and Defendant's counsel informed the trial court that it had likely secured an outside firm to present the issue regarding the post-indictment delay. The State again asked that the Public Defender's Office be removed from the case so that they could set a trial date.

         On June 1, 2016, at another hearing, the Defendant's counsel informed the trial court that the law firm of Bass, Berry and Sims had agreed to take the case pro bono for the purpose of presenting evidence about the post-indictment delay. The Defendant's counsel then said that she could be ready for trial before late November 2016. The parties agreed to a hearing date and to a trial date of October 17, 2016. The trial date was later moved to September 19, 2016.

         The State expressed concern that, if the trial court allowed the assistant public defender's argument to stand, every public defender could continue a case for long enough to have the case dismissed. The State asked for supplemental discovery to cover eight points so that it could adequately discuss whether a first degree murder indictment should be dismissed because of the workload of the Public Defender's Office. The State opined that the Public Defender's Office should not be successful in their argument when they had not informed the trial court before or since that they could not take additional cases until they resolved some of their pending cases. The State wanted the time records for the attorneys at the Public Defender's Office. Ms. Bergman, the Bass Barry and Sims attorney representing the Defendant on this limited matter (hereinafter "Private Counsel"), posited that the State was not entitled to the time records or any of the other requested information. She further stated that the information relied upon by her expert had been provided as an exhibit.

         The trial court asked Private Counsel if the expert had looked at the time sheets of every public defender who had worked on the case during the year-and-one-half that they represented the Defendant. The expert had not viewed their time sheets but had asked the public defenders about their schedules. She said that the expert had not viewed the schedules for paid leave time or vacation leave or the number and nature of out of office activities undertaken by the assistant public defenders during normal office hours. Private Counsel further noted that the State was the opposing party on all cases handled by the Public Defender's Office and could compile its own list of cases.

         The trial court asked Private Counsel to have the expert share his notes with the State before the hearing. The trial court ordered the Public Defender's Office to provide the time records related to the Defendant's case and ordered that those be filed under seal.

         When the parties reconvened on September 1, 2016, Private Counsel gave opening remarks summarizing the Defendant's position on this matter. She said that he was indicted July 23, 2013, and the case was currently set for trial September 19, 2016. Private Counsel said that during the three-year delay, the Defendant was forced to choose between his constitutional right to a speedy trial and his constitutional right to effective assistance of counsel. Private Counsel opined that the factors considered in determining whether the Defendant's speedy trial rights had been violated weighed in favor of the Defendant. Private Counsel acknowledged that delays requested by defense counsel are generally attributable to the defendant, but that the United States Supreme Court had made an exception to that rule when there is a systemic breakdown of the public defense. Private Counsel said that the Defendant had a good relationship with his public defenders but their workloads inhibited their ability to prepare for his trial. The State disagreed with Private Counsel on each of these arguments, saying that the delay was not unreasonable given the severity of the offense and the fact that the Defendant's counsel asked for many of the delays. The State further posited that there was not a systemic breakdown of the Public Defender's Office.

         Carol Dawn Deaner, the Public Defender for Metro Nashville Davidson County whose mission is to serve citizens of Davison County who have been charged with a crime and cannot afford an attorney, testified that tension existed within her office because her office had more work than they had time to complete. Currently on staff, Ms. Deaner had forty-eight full-time employees, with a forty-ninth position unfilled because there was no funding. Ms. Deaner said that two of her employees were funded by the county and ran an education rights program, so they did not have active caseloads, leaving forty-six employees. Two other employees were "half-time" employees, leaving forty-four and a half attorney positions. She no longer carried a full-active caseload. Ms. Deaner testified that twenty-one of the attorneys in her office had less than five years' experience, which meant they required more supervision and did not have the skills or experience to handle more serious cases.

         Ms. Deaner said her office had seven investigators and that they were currently attempting to hire two more investigators to fill vacancies. She said her office also had thirteen legal secretaries and several other paralegal-type support staff, totaling sixteen support staff. Ms. Deaner testified her office did not have sufficient support staff or attorneys to service every client, noting that her office closed 30, 000 cases annually. She said there was simply not enough time to provide what she termed "reasonably effective representation" to all clients based upon her office's staffing numbers. Ms. Deaner testified she could not hire more attorneys because she did not have funding, which came from both Metropolitan Government of Nashville, Davidson County ("Metro") government and the State of Tennessee. Ms. Deaner presented evidence showing that the State had funded each of the other districts at significantly increased rates since 1993, but that funding for the 20th judicial district containing the city of Nashville remained relatively "flat," which she opined was contrary to the then-enacted Tennessee Code Annotated section 8-14-210.

         Ms. Deaner testified about the actions she took in an attempt to increase her office's funding. In 2012, Ms. Deaner attempted to increase awareness within the Governor's office and the Department of Finance and Administration ("F&A"), as well as the Davidson County delegation to the Legislature, about this issue. She met with David Thurman, the head of F&A, who was the budget director at the time, along with others to inform them that she did not think that they had been "collating our annual increases consistent with the statutory language." She asked for a two million dollar increase, which was the amount that would be equal to the percentage increase in the other judicial districts. Ms. Deaner identified a letter she wrote to Mr. Thurman that explained her calculations and provided numerous documents to support the need for additional funding. As a result, Mr. Thurman and F&A began a study ("Spangenberg Study") and made a request to Davidson County for additional information.

         The Spangenberg Study progressed through the end of 2012 and the beginning of 2013. The Governor's office then issued a short letter characterizing the Public Defender's Office position as an argument that the State's funding for Davidson County Public Defender's Office had not kept pace with inflation. The letter indicated that the Governor's office agreed with this contention and appropriated an additional $500, 000 for the Public Defender's office in Davidson County. The letter also recommended a change in the statute. The statute was, in fact, later amended to reflect that the increase or decrease in the Davidson County Public Defender's Office's funding should reflect inflation, a relationship which Ms. Deaner observed had no relevance to her office's caseload.

         Ms. Deaner further explained that in addition to her office's funding from the State, it also received funding from Metro. She offered evidence showing the share of her office's budget that Metro had increased over the last twenty-three years. In 1993, half of her office's budget was paid by the State and half was paid by Metro. By 2011, twenty-five percent of her budget was paid by the State and seventy-five percent was paid by Metro. The increased funding from Metro did not, however, make up for stagnant funding from the State. She explained that, by statute, in districts where local governments provided funding for their District Attorney General's Office ("DA's Office"), when the district increased their funding to the DA's office, the district also had to increase the funding to the Public Defender's Office in an amount at least seventy-five percent of the increase to the DA's Office. The statute was designed to "keep equilibrium" between the DA's office and the Public Defender's office.

         Ms. Deaner then discussed her office's workload using information from their case management system, JIS. She noted that, in 2014, her office closed 29, 617 cases and in 2015, it closed 29, 834. The data compiled, however, relied upon human entry from her staff, which she said often fell by the wayside when her staff were "running tight for time." She said the database did a reasonably good job in keeping her office's annual numbers, but she discussed concerns about the accuracy of the tracking of caseloads.

         Ms. Deaner testified that the legislature had commissioned a study to determine how many cases any one state attorney could handle, which served as the basis of the Spangenberg Study caseload standards. That study found that no public defender should handle more than 500 misdemeanor cases in a year, if that is the only type of case handled. It further found that a public defender should not handle more than 233 felony cases. She noted, however, that the study was done in 1999, when the practice of criminal defense was significantly different in that there were not nearly as many expert issues. Further, these numbers were the highest in the country. Ms. Deaner said that, on average, in her office the lawyers were handling well more than the Spangenberg Study standards said that they should.

         Ms. Deaner testified that the Spangenberg Study found that no public defender should handle more than five first degree murder cases in a year and that, if they had five such cases, they should have no other cases. In 2014, her office closed twenty-two first degree murder cases, meaning that 4.4 of her twenty-two attorneys should have handled only those twenty-two cases. To be in line with the Spangenberg Study, her office would need sixty-seven attorneys, or 22.5 more than the office actually had. Ms. Deaner said that in 2015, her office would have needed 73.8 attorneys, roughly thirty more than she had, to comply with the Spangenberg findings.

         Ms. Deaner testified that, while there were no specific strategies she used to help her attorneys handle a caseload beyond the Spangenberg Study guidelines, her office did encourage "meet an[d] plea" practices when applicable. That included resolving a case within a few hours of meeting a client through a plea bargain agreement. Additionally, she encouraged a "tag team" approach in general sessions where the lawyer covering the docket that day would represent any public defender clients facing charges that day. She noted that the impact of this type of representation was that it was in some ways ineffective, because that same lawyer did not follow the case and a new lawyer had to get acquainted with it. It also caused "the ball" to "get[] drop[ped] a lot easier," making it harder to meet performance standards, because there was less time for investigation, to conduct appropriate interviews, or do any legal research.

         Ms. Deaner testified that, recently, she had tried to implement some practices to improve their performance standards, such as implementing workload controls and workload caps on the jail docket so that lawyers who were getting new cases each morning were not getting more than ten new misdemeanor cases (class A), more than eight felony cases, or more than six domestic violence cases in any one day. Ms. Deaner said that her office continued to represent every individual charged with a class B or C misdemeanor, except in the cases of conflicts, and this could be an additional fifteen to twenty-five clients per docket. Each case required the attorney to meet with the prosecuting attorney, communicate with the client, convey any offer and discuss legal options and decide how to proceed, and then return to the clerk's office to convey the information. Ms. Deaner said that her attorneys should do more, including interviewing their clients, trying to obtain releases for those individuals if possible, and investigating legal issues.

         Ms. Deaner testified that her office began declining cases in 2014 as having a "workload conflict." In the first twelve-month period, her office declined 2, 000 cases. Her office declined approximately 2, 300 cases the following year in general sessions court alone. She said her office was not keeping track of how many cases it had declined in criminal court on the same basis. In cases her office declined to take, the private bar was responsible for representing the clients, and they were paid $40 per out-of-court hour and $50 per in-court hour, not to exceed $500 per misdemeanor case. These attorneys were not supervised, and there was no oversight to their performance. Ms. Deaner agreed that no one reviewed the private attorney's caseloads.

         Ms. Deaner opined that if her office reduced their caseload consistent with the standards, a reduction of 10, 000 cases, it would be difficult to find private attorneys to handle that many cases. She further opined that the Administrative Office the Courts ("AOC") could not afford to pay all of those private lawyers their fees.

         Ms. Deaner testified that her office was appointed to represent the Defendant in April 2014, and his case was set for trial in September 2016. She agreed that this was a reasonable amount of time to prepare his case and she anticipated that the attorneys representing him would be ready for trial. She said that she had had to restrict them from taking any new cases and to shift their supervisory duties to give them time to prepare.

         The trial court asked Ms. Deaner why she did not shift Counsel's duties the first time that the defense attorneys requested a continuance. She acknowledged that it was a good question and one for which she did not have an explanation. Ms. Deaner explained that, when these attorneys were six months out from trial, they probably had every intention of being prepared but got busy. Further, the culture of her office meant that everyone was busy and everyone had a lot of cases so no one attorney wanted to shift their caseload onto another attorney.

         Ms. Deaner testified the changes she had to make to the defense attorneys' workloads meant that something for another client was not being done. The Deputy Public Defender, who typically did not handle cases because of her administrative responsibilities, had been doing jail dockets for the two defense attorneys who were primarily responsible for the Defendant's case, Ms. Sims and Mr. Griffith. Further, she suspected that Mr. Griffith and Ms. Sim's other clients were not receiving an appropriate amount of attention. Ms. Deaner said that, in the last three years, her attorneys did not have adequate time to spend with each client. She read from some of the standards expected of defense attorneys, which included meeting with each client, advising them fully about all their rights and options, interacting with their family members, etcetera, and said the attorneys in Nashville Public Defender's office did not have time to meet those standards.

         Ms. Deaner opined that a number of the Nashville Public Defender's Office's clients got "reasonably effective representation" consistent with Constitutional requirements, but that there were clients who did not.

         During cross-examination, Ms. Deaner testified that between 1996 and 1997, her summary of her office records showed her office handled 31, 645 charges. That number varied slightly but increased to 44, 232 charges over the next nine years. When she took office, and shortly thereafter, they began tracking cases and not charges, and cleaned up their database, so she could not say whether her office handled significantly more cases than in 2005. Ms. Deaner said she had never filed a lawsuit against the State or asked Metro to file a lawsuit against the State to address her workload concerns, but she said she had discussed the possibility with the legal department at the mayor's office.

         Ms. Deaner agreed that she met with the mayor for the budget for fiscal 2017. She requested funding for eight additional positions, six of which were lawyer positions. She informed the mayor at that meeting that what her office needed most was a data analyst. She agreed she did not inform the mayor that her office needed 29.3 additional attorneys or that her office was having a systemic breakdown. The trial court asked Ms. Deaner why she did not present the issue to the mayor's office, and Ms. Deaner responded that the reason that her office was not meeting standards was because of underfunding by the State, not Metro. Metro exceeded its statutory obligation to her office, so she did not ask Metro for the difference. Additionally, the amount of help her office needed far exceeded what Metro could provide, so she decided to not ask for more.

         Ms. Deaner agreed that, as part of implementing her office's workload controls, she sent a letter to the general sessions judges saying assistant public defenders would not accept new clients if the client had not come to her office prior to three days before their court appearance, so her office would have adequate time to prepare. This and other workload controls reduced her office's caseload by about fifty cases per week, or seven percent.

         Ms. Deaner agreed that the lawyers in her office could generally come to her with a problem at any time. During her tenure, three assistant public defenders had informed her that they were overloaded. Ms. Sims had never come to her and said she was overloaded. Ms. Sims did not inform Ms. Deaner that the Defendant filed a motion in February to act as co-counsel. Ms. Deaner learned in March or April that the Defendant wanted to go forward with his trial pro se regardless of whether his counsel was prepared. After she learned of this, she did not look into the case to see what had been done. Ms. Deaner said she was aware that Ms. Sims had co-counsel, the use of her office's investigator, and the use of a second investigator for whom the trial court had approved funding. Ms. Deaner was unsure whether all the witnesses had been interviewed in preparation of the case. She did, however, take Ms. Sims at her word that she was not ready to proceed with the case.

         Ms. Deaner testified that Ms. Sims' caseload included four murder cases, eight felony cases, and twenty-two post judgment matters, too many in light of the Spangenberg Study. She stated that an attorney may not be able to handle more than two jury trials in a twenty-month period because it takes just as much time to prepare a case to plea on the morning of trial as it does to try the case, so it was unfair to parse out an adequate caseload for a lawyer based on cases tried. Ms. Deaner agreed that Ms. Sims had twelve open cases and that she had tried one case in 2015 and one case in 2016.

         Norman Lefstein, a professor of law and Dean Emeritus of the Indiana School of Law, testified as an expert in the area of public defense services. He offered the opinion that the caseload of the Metro Public Defender's Office in Nashville was extremely high and put the lawyers at risk of failing to provide their clients with competent, timely, and effective representation. Professor Lefstein testified he had reviewed the Spangenberg Study and that the numbers contained therein regarding lawyer caseloads were the highest he had seen anywhere. He said the Spangenberg numbers were 233 felonies or 550 misdemeanors that a lawyer could handle over the course of a rolling twelve-month period. Professor Lefstein felt these numbers were inflated based on an inherently flawed methodology in the study.

         Professor Lefstein opined that the lawyers in Ms. Deaner's office would not have time to adequately handle their caseloads. He said further that the forty-four lawyers in the office had seven investigators, which was a six to one ratio. When he worked as a public defender in the past, it was a one to one ratio for lawyers to investigators, in part because prosecutors used the investigative services of the police who gave them the case and defense attorneys had a very different starting position. Professor Lefstein agreed that he thought that there had been a systemic breakdown of the Metro Nashville Public Defender's Office.

         During cross-examination, Professor Lefstein testified that he only reviewed the numbers given to him by the lawyers in this case and did not verify those numbers. He also only spoke to the three attorneys involved in this litigation and did not speak with any other public defenders, prosecutors, judges, or clerks, and he never came to court to observe before he formed the opinion that there had been a systemic breakdown of services from the Nashville Public Defender's Office. Professor Lefstein agreed that he was given a list of cases to review, but did not know how many of those were civil habitual motor vehicle offender cases, or general sessions cases, or indigence motions. He also did not ask the attorneys how much time a post-judgment case would take. He further agreed that he did not inspect the timesheet from the Public Defender's Office in Nashville, and had never researched the specifics of the Defendant's case or the representation he received.

          Professor Lefstein said he did not know how long the Defendant's trial was expected to take, how many motions had been filed in his case, how many witnesses were anticipated, or if there were interns working on the case. He agreed that most public defenders in the office where he had worked handled more than twelve cases at a time. Nevertheless, Professor Lefstein said he was comfortable giving his opinion based on the information that he had reviewed, that he believed the Nashville Public Defender's Office needed to be adequately "resourced," and also that there needed to be private attorneys involved to handle the additional work.

         Professor Lefstein clarified that his use of the term "systemic breakdown" did not mean that every single defendant was inadequately represented, but rather that defendants were at constant risk of not being adequately defended. He did not offer a specific number of attorneys needed to adequately staff a public defender's office and said that the study under way should provide more guidance.

         Ms. Sims testified that she was an assistant public defender and that she strived to provide the type of representation to her clients that they would receive at a high quality law firm. She said that while she was very proud of some of the work that she had done for some of her clients, she could not do everything necessary for most of her clients. She offered that she provided "effective" representation to most of her clients, but that there were some clients that she did not think that she represented effectively due to her excessive workload.

         Ms. Sims said that, before she was assigned to the Defendant's case around 2013[2]she was a "line" public defender in Division I court. Other than her team leader, she was the most experienced on her team, so her caseload tended to be heavier and include more serious felonies. At the time, she did not have any supervisory duties. In 2014, Ms. Sims was promoted to team leader for Division I, and she assumed formal supervisory duties for two other attorneys, which included case assignments, scheduling, and personnel management. She did not reduce her caseload at the time of her promotion, and she estimated that her supervisory duties took about fifteen percent of her time.

         Ms. Sims testified that in 2014, she had 157 open cases, which included one murder case, eighty-one felony cases, five misdemeanors, and forty-seven post-judgment matters. This number, she said, did not include any of the cases that carried over from previous fiscal years or that were opened before July 1, 2013. It also did not include any cases for which she sat as second chair. Therefore, she concluded that the number of cases that she had at the time was higher than that figure. In 2015, Ms. Sims opened one murder case, thirty-four felony cases, eight misdemeanor cases, 111 post-judgment matters, and 108 general sessions cases. For the same reason, these numbers were also lower than the actual number of cases she had worked on. Further, by the end of 2015, she was supervising five other attorneys, taking upwards of twenty-five percent of her time.

         In 2016, Ms. Sims had two additional murder cases, twenty felony cases, two misdemeanor cases, 191 post-judgment matters, and 223 general sessions cases. Ms. Sims testified that, also in 2016, the experience level of the attorneys she supervised dropped significantly, so she had to increase the amount of time she spent formally training and supervising the attorneys on her team.

         Ms. Sims said that during the pendency of the Defendant's case she had the same investigator assigned to her. The investigator positions, however, had significant turnover and Ms. Sims's investigator was asked to absorb responsibilities for vacant positions. This caused Ms. Sims to be more hesitant about her investigation requests and she would do some of the investigation herself, leaving less time for actual legal representation work. Ms. Sims estimated that in 2016, she worked between forty and fifty hours per week, not including time that could not be tracked. She still only spent about four hours per client, which she believed was not an adequate amount of time. Ms. Sims said her performance did not meet the attorney's performance standards of her office.

         Ms. Sims spoke directly about her representation of the Defendant, which began in April 2014. Ms. Sims agreed the Defendant was indicted in July 2013, but said he was in custody in Texas and there was a lengthy process to extradite him. Ms. Sims said she brought on Mr. Griffith as second chair to split the duties of representing the Defendant evenly. Ms. Sims said that, because of the inadequacy of her investigative staff, very little investigation occurred on the Defendant's case for a "long period of time." She requested funds for an additional outside private investigator from the trial court, which granted her request.

         Ms. Sims said that the Defendant's first trial date was in June 2015, but the State had some issues with witnesses being present so, because she was also not ready for trial, Ms. Sims agreed to continue the case. The case was reset for August 2015. At that time, Ms. Sims filed a motion to continue because there was some DNA evidence they had learned was still in existence a few weeks before trial, so she needed time to deal with this late-disclosed evidence. She said that, but for that evidence, she was ready to proceed to trial. The trial was scheduled for April 2016. In February 2016, the Defendant filed a motion asking to be appointed as co-counsel and also asking that his April 2016 trial date not be delayed. Ms. Sims said that between the August 2015 date when she was prepared for trial and the April 2016 rescheduled trial date, Ms. Sims was unable to prepare for trial because of her workload. At that time, Ms. Sims filed a motion to dismiss for speedy trial violation and in the alternative a motion for a continuance.

         Ms. Sims testified that since April of 2016, her workload had shifted so that she could prepare for the Defendant's upcoming trial on September 19. She stopped accepting or assigning herself new cases, instead assigning those cases to her team. She also decreased her appearance on the general sessions docket schedule. Ms. Deaner and the Deputy Public Defender, Ms. Manning, had been required to cover some of the general sessions dockets. Ms. Sims said that she had not done this before because everyone in the office was busy, so it was just a shifting of work, making her colleagues' workload less bearable.

         Ms. Sims testified that in the three years since the Defendant's indictment, Dr. Charles Harlan, the medical examiner who performed the autopsy in the case, had passed away. Ms. Sims identified the final order revoking Dr. Harlan's medical license based upon a number of misdeeds that were investigated, which included issues with Dr. Harlan's investigating cases and forming conclusions. Anyone from the medical examiner's office who testified in place of Dr. Harlan could not testify about the facts related to his misconduct and whether that was present in this case.

         Ms. Sims detailed ways in which it was difficult for the Defendant to review, maintain, and discuss the evidence in the case against him with his counsel. Ms. Sims reiterated that the primary cause of the Defendant's case being delayed was her workload, and that his representation was the responsibility of the State.

         During cross-examination, Ms. Sims testified that she thought she had provided deficient representation to some of her clients. She said she could not answer whether she had offered the Defendant deficient representation because his case had not yet been tried but that, had the case had gone to trial in April, her representation would have been deficient. Ms. Sims said her inability to be prepared for trial in August 2015 represented an ethical lapse by her office toward the Defendant.

         Ms. Sims testified that in 2015, she conducted two jury trials: one in Division III, for which she sat second chair and was, therefore, not reflected in her numbers; and the other in Division I. Ms. Sims testified that in 2016, she had tried a rape of a child case only, and that since then, she had not conducted any jury trials. The State then questioned Ms. Sims regarding each week of her work and whether she had a trial scheduled, and she did not have any trials scheduled between January and June of 2016. Ms. Sims noted that she had a first degree murder trial set for August 21, for which she was first chair. Ms. Sims said that, as her affidavit reflected, she had opened twelve cases in criminal court during the fiscal year of 2016. Ms. Sims stated that, because of carryover cases and the data issue, twelve open cases was not the sum total of her caseload. Ms. Sims could not offer testimony regarding the sum total of her open cases, but she said it was closer to fifteen.

         Ms. Sims agreed that several investigators, social workers, and interns from her office visited the Defendant in jail. She agreed that a total of 760 hours had been submitted into the public defender's database as going toward the Defendant's defense.

         Ms. Sims agreed that starting in December 2015, she had two investigators working on this case. Ms. Sims agreed the defense did not make a request for personnel or experts to assist the defense. Ms. Sims said the Defendant never asked that she be removed from the case. Further, she had never asked to withdraw from his case. She said, however, the Defendant understood how much work she had done on the case and that he would have to start over again with a new attorney. He was, therefore, making a "calculated and rational decision" to keep Ms. Sims as his attorney but that the choice was not necessarily totally free and voluntary.

         Ms. Sims agreed that, at the March 31 hearing on the speedy trial motion, the Defendant said he would be happy to agree to any continuance if he was removed from the care of DCSO and placed in the custody of TDOC, because he believed he would receive better treatment. He did not object to the continuance otherwise, but he was never moved to TDOC custody.

         Kevin Griffith testified that he began working at the Public Defender's office in 2010 after he graduated from law school. He felt he was unable to provide the representation that he would like for clients, because of his workload. Mr. Griffith said it was impossible to have the time that he needed for every client on every case. Mr. Griffith said that in the fiscal year 2014, he was assigned fifty-seven felony cases, eleven misdemeanor cases, thirty-six post-judgment matters, and 129 general sessions cases. This, however, did not convey the full number of his cases because the number did not include any cases that were not assigned to him within the computer system or any cases that he opened prior to 2014 that were not settled as of 2014. For example, the Defendant's case was not reflected in his numbers, because he was not the lead attorney, despite the fact that he had spent a significant amount of time on the case.

         Mr. Griffith said that, in 2015, he was assigned one murder case, twenty-four felony cases, twelve misdemeanor cases, fifty-three post-judgment matters, and 118 general sessions cases. During that time, while he did not have any formal supervisory duties, he was responsible for maintaining the complicated general sessions schedule. In March 2016, Mr. Griffith was made the team leader of Division V Criminal Court, and his supervisory duties took 15 to 20% of his time. In 2016, he was assigned thirty-five felony cases, six misdemeanor cases, fifty-four post-judgment matters, and 325 general sessions cases. Again, he clarified that this was not an accurate representation of his cases due to inadequacies in office recording of caseload. He noted that the post-judgment matters number was significantly low based on the failure to reassign the case in the database. Mr. Griffith said that, based on the numbers, he had 3.5 hours to spend on each case and that this number could be significantly less depending on the actual number of cases that he carried at any given time, based on cases lasting into another year than the year they were assigned, and cases for which he sat second chair. Mr. Griffith opined that he did not have time to adequately represent each of his clients.

         About the Defendant's case, Mr. Griffith said that he and Ms. Sims were not prepared for the August 2015 trial because they did not have time to devote to the case given their large workloads. They further were not prepared in April 2016. Mr. Griffith had three trials between August 2015 and April 2016 and had three other very serious cases that settled within weeks of their scheduled trial, so he had to prepare for trial in all three of those cases. Mr. Griffith said they would be prepared for trial by the current September trial date because the workload had been shifted to other attorneys, putting a strain on their team. Mr. Griffith said that he and Ms. Sims never went to Ms. Deaner with the issue of their inability to be prepared for the trial dates.

         Mr. Griffith said that he felt that his workload had prevented him from meeting the performance standards expected of him for each client he represented. He agreed that he had met the standards with respect to some of his clients but not all.

         During cross-examination, Mr. Griffith agreed that post-judgment matters assigned to him included probation violations, petitions to declare indigency, and a petition for a suspended sentence, which did not take nearly as much time as a trial. Mr. Griffith testified that he had spent more than an hour on some of these issues but said that they did take significantly less time than other types of cases.

         Diana Latiolia, a statistical research analyst with the Metro Nashville criminal justice planning department, testified that her department gathered information upon which to base relevant statistics. She created a report entitled "number of cases by criminal court divisions," which she offered in her testimony. Her information contained the number of defendants represented by the entire Public Defender's Office from 2011 to 2015. She clarified that the report showed the number of cases pending as of a specific day in each of the relevant years.

         Ms. Latiolia testified that in 2011, 830 defendants were represented by the Public Defender's Office. In 2012, that number was 907. In 2013, the number of defendants was 823; in 2014, 893; and in 2015, 700. Ms. Latiolia testified that she looked at the percentage of defendants represented by the Public Defender's Office in each of the criminal court divisions and how that percentage had changed over time. In Division I, the Public Defender's Office represented 54% fewer defendants in 2015 than in 2012.

         Ms. Latiolia examined the number of general sessions cases handled by the Public Defender's Office. In 2011 there were 2, 622 cases; in 2012, 2, 355; in 2013, 2, 263; in 2014, 2, 025; and in 2015, 2, 182. The number of defendants represented by the Public Defender's Office was much fewer, explaining that defendants may face multiple indictments. In 2011 there were 439 defendants; in 2012, 339 defendants; in 2013, 375 defendants; in 2014, 315; and in 2015, 415. These numbers included all pending matters, regardless of the year that the case was initiated.

         During cross-examination, Ms. Latiolia agreed that the numbers in the reports were based on entries by the clerk's office and the numbers were dependent on the clerk entering those numbers correctly. She said she had never spoken with the Public Defender's Office about the report or requested search perimeters to ensure the accuracy of the numbers. Ms. Latiolia agreed there were a number of categories not contained in the report, including: community corrections violations; final forfeit; or motions/petitions or review status to report. Ms. Latiolia explained that the report was prepared to include cases that have a pending status and also a future court date. She said she was unable to determine from this information how many cases were closed in any given year. She mentioned there were limitations such as retrial dates of the same defendant, which may cause underreporting of the number of jury trial settings. Based upon this, her office manually looked at the clerk's entries and believed their report was as close to accurate as possible. Mistrials were also not counted in her report, as it only included cases disposed of by trial.

         Tom Davis, the Director of Records and Offender Information with the Davidson County Sheriff's Office ("DCSO"), testified and identified the Defendant's visitation history from April 2014 to August 2016. He said that the DCSO tried to accommodate every attorney visit, even if a defendant is in a "[s]pecial management unit." He then identified the Defendant's disciplinary reports, which contained reports of six incidents.

         During cross-examination, Mr. Davis testified he had no personal knowledge of whether the visits listed in the visitor log were accurate. He also did not have personal information about the incidents in the disciplinary reports. Mr. Davis also agreed the report did not contain any grievances lodged by the Defendant.

         The State offered recordings of the Metro Counsel Budget Hearing for the years 2013 through 2016, the period Ms. Deaner testified about her office. It also offered her testimony for the mayor in fiscal year 2017. Ms. Deaner was recalled and testified that the testimony that she gave was in response to the question of whether the PD's office could function on the amount allotted with the mayor's budget. She agreed that she told the office that in the fiscal year 2015, her ...

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