Truck driver Michael James in a sessions court hearing Friday trying to throw off a criminal case whose agonizing weight is largely that of “the process” and of lawyerly combinations rather than the actual legal claims.
By David Tulis / NoogaRadio 92.7 FM
These claims — of double felony aggravated assault — may sound heavy and are serious. But the police work behind them is so poor, and the judicial system that keeps the zombie case alive so shabby, that it seems certain it cannot survive the hearing before Judge Gerald Webb.
The charges against Mr. James are improper and without basis in fact or law, and Judge Webb lacks subject matter jurisdiction because there is no charging instrument to evoke its authority to hear the merits of the charges stemming from his May 6 arrest in Chattanooga.
The police officer Lance Hughes, magistrate Lorrie Miller and district attorney Neal Pinkston’s assignee to the case are breathing together on a violation of the law regarding the magistrate’s duty to screen out bad police work. The law says:
Upon information made to any magistrate of the commission of a public offense, the magistrate shall examine, on oath, the affiant or affiants, reduce the examination to writing, and cause the examination to be signed by the person making it.
Tenn. Code Ann. § 40-6-203. Informants; examination
Tale of fibs, harassing officer
The state’s case is on behalf of two girls, Ella Peters, 14, and Kyaija Anderson, 16, who claimed Mr. James threatened them with a pistol. Neither girl appeared at the Hamilton County jail to be examined by the magistrate, give oath and to have the cause “[reduced] *** to writing” by the magistrate.
Ella Peters alone is mentioned in Officer Hughes’ affidavit narrative. The officer swears that both girls are “victims” and that Ella’s mother, Tiffany Peters, is “witness.”
According to the Hughes’ affidavit and testimony of the accused, a truck driver with no criminal record, Mr. James observed the girls about 4 a.m. traveling in their car at dangerous speeds, swerving the car and nearly driving him out of his lane. Mr. James called 911 about their dangerous acts, and followed their car to get their registration plate. They crashed into a building, fled the vehicle when they saw him, ran to a nearby house and called 911.
The homeowner at 1901 E. 25th St. calls 911 and talks to a dispatcher:
According to the police department soundfile from the girl’s 911 call:
Hey, ma’am. Me and my friend were getting ready to go and get something to eat and we was at a light and this man, he had flipped us off and we was at the stoplight. And we, he started chasing us. And then we tried to get away. And we ran into this door thing.
And the man was still following us, and he got a gun and he was trying to shoot us. *** Yes, we are inside this woman’s house. *** No, he was a black male, and he is still out here waiting for us to come out here. *** Make sure that door, go lock that door. **** We was at a stoplight, and he’s still in front of the house now.
The dispatcher asks, “Did you see a gun?”
Ella Peters asks the other girl in the open phone line: “Did you see a gun?”
“Yes. She saw a gun and we started running, and went into this woman house.”
Within seconds of this statement, Ella Peters says officers have arrived.
Mr. James was also on the phone with 911, calling to report the girls’ erratic driving and their crash into a building belonging to the Fowler Bros. furniture business. Mr. James was sitting in his car with his hazard lights flashing when officers arrived.
Officer Hughes came 10 or 15 minutes later and launched an investigation into Mr. James, based on accusations by a minor.
Cop offers hearsay, magistrate accepts it
Black’s Law Dictionary 4th ed. defines hearsay.
Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity. State v. Ah Lee, 18 Or. 540, 23 P. 424, 425. Young v. Stewart, 191 N.C. 297, 131 S.E. 735, 737. It is second-hand evidence, as distinguished from original evidence; it is the repetition at second-hand of what would be original evidence if given by the person who originally made the statement. Literally, it is what the witness says he heard another person say. Stockton v. Williams, 1 Doug., Mich., 546, 570 (citing 1 Starkie, Ev. 229). Evidence, oral or written, is hearsay when its probative force depends in whole or in part on the competency and credibility of a person other than the witness. State v. Kluttz, 206 N.C. 726, 804, 175 S.E. 81. Hearsay is a statement made by a person not called as a witness, received in evidence on the trial. People v. Kraft, 36 N.Y.S. 1034, 1035, 91 Hun, 474. The term is sometimes used synonymously with “report”, State v. Vettere, 76 Mont 574, 248 P. 179, 183; and with “rumor.”
“Every person accused of a crime has a right to ‘confront the accusers and witnesses’ against him, and there is no surer safeguard thrown around a person of the citizen than this guaranty, contained in this one of our declaration of rights,” McCormick’s Cases and Materials, Charles McCormick, 1971, citing State v. Hargrave, 97 N.C. 457, 1 S.E. 774. In Tennessee, that would be in article 1, section 9, “that in all criminal prosecutions, the accused hath the right *** to meet the witnesses face to face[.]”
The prosecution of Mr. James is based on a sworn statement of city police Officer Hughes, who is neither eyewitness nor an aggrieved or injured party.
Judge Webb lacks jurisdiction and has duty to dismiss it ministerially because it is void from inception, there being no actionable instrument to ignite prosecution or adjudication.
But seeing that Mr. James’ attorney, Bill Speek — whom he fired for incompetence — failed to point out the obvious at the first hearing before the court, the second hearing before the court or the third hearing before the court, Mr. James intends to review the obvious points of law for the learned in the county’s judicial-industrial complex.
His review starts with Tennessee rules of criminal procedure that when a person is arrested without a warrant, she “shall be taken without unnecessary delay before the nearest appropriate magistrate” and that “[a]n affidavit of complaint shall be filed promptly.”
Tenn. R.Crim. P. 5(a). Tennessee Rule of Criminal Procedure 3 defines an affidavit of complaint as follows:
[A] statement alleging that a person has committed an offense. It must:
(a) be in writing;
(b) be made on oath before a magistrate or a neutral and detached court clerk authorized by Rule 4 to make a probable cause determination; and
(c) allege the essential facts constituting the offense charged.
A narrative by a police officer, even though sworn before a magistrate, is not evidence and sets forth no “essential facts.”
Police reports are hearsay and are not admissible as evidence. The primary problem with the admissibility of police reports is that the report is hearsay made up of opinion or conclusion not based on personal knowledge. Paine, Tennessee Law of Evidence § 108 (1974); McBee v. Williams, 56 Tenn.App. 232, 238, 405 S.W.2d 668, 671 (1966):
Police reports based upon statements of witnesses are hearsay and are not admissible in evidence. The reasoning behind this rule is that if the officer is present he can testify as to his first hand knowledge. He cannot testify as to what was told to him and such matters could not be admitted with the report in any event. If the report is admitted, it may not contain material to which the author, had he been present, would be incompetent to testify. Burch, Trial Handbook for Tennessee Lawyers § 322 (1980) (citations omitted). (Emphasis added)
McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989)
$1,000 a minute for false imprisonment
Trezevant v. Tampa 741 F.2d 336 *; 1984 U.S. App. LEXIS 18863 makes clear that if one is under arrest and booked and humiliated even for a single minute, the state or its agent imposes irreparable damage. The case turns on the fact that Mr. Trezevant was incarcerated rather than being placed in a part of the jail wherein he could make bond.
Officer Eicholz escorted Mr. Trezevant to central booking and when they arrived he frisked Mr. Trezevant and took him through the door normally used by policemen with arrestees in custody. Officer Eicholz walked up to the central booking desk and presented the jailer on duty with Mr. Trezevant and with the citations that Mr. Trezevant had refused to sign.
The jailer took Mr. Trezevant’s valuables and his belt and shoes and placed Mr. Trezevant in a holding cell until he could be processed. Mr. Trezevant was in the holding cell for a total of twenty-three minutes. Mr. Trezevant always had enough cash to bond himself out. No one ever told Mr. Trezevant what he was being incarcerated for; he was not allowed to call an attorney before he was incarcerated; and, he was incarcerated with other persons who were under arrest for criminal violations. Further, while he was being held in the holding cell, Mr. Trezevant suffered severe back pain and his cries for medical assistance were completely ignored.
In the case at bar, Mr. Trezevant’s incarceration was the result of numerous mistakes which were caused by the policemen and deputies carrying out the policies and procedures of the City of Tampa and the HBCJ. There was certainly sufficient evidence for the jury to find, as it did, that pursuant to official policy Officer Eicholz escorted Mr. Trezevant to central booking where he was to be incarcerated until the HBCJ personnel could process the paper work for his bond. We cannot view the actions of Officer Eicholz and the jailer in a vacuum. Each was a participant in a series of events that was to implement the official joint policy of the City of Tampa and the HBCJ.
The failure of the procedure to adequately protect the constitutional rights of Mr. Trezevant was the direct result of the inadequacies of the policy established by these defendants. The trial court correctly denied the motions for directed verdict and submitted the case to the jury.
*** [T]here was sufficient evidence for the jury to find that Mr. Trezevant’s unconstitutional incarceration was the result of an official policy. Officer Eicholz escorted Mr. Trezevant to central booking and the HBCJ deputies then processed Mr. Trezevant in the normal course of business and in accordance with what they considered to be governmental policy. The fact that no motorist prior to Mr. Trezevant had elected to not sign a citation but rather post a bond is hardly justification for having no procedure. The record is devoid of any explanation as to why Mr. Trezevant was not allowed to use the entrance and window routinely used by attorneys and bondsmen.
Trezevant v. Tampa 741 F.2d 336 *; 1984 U.S. App. LEXIS 18863
The Trezevant court upheld damages of F$25,000, or F$1,086 per minute of false arrest (denominated in Federal Reserve System paper currency). In that case, Mr. Trezevant was going to pay cash to make his own bond before a magistrate. But he was imprisoned.
In the James case, without a proper charging instrument and no witness, his arrest is a tort, if not a crime, with Mr. James in the jail and under arrest seven hours.
A lawful accusation is an essential jurisdictional element of a criminal trial, without which there can be no valid prosecution. [citation omitted]
No valid conviction can be had upon a void warrant or indictment. Criminal prosecutions cannot be sustained by intendment, but everything necessary to constitute the offense must be charged. Church v. State, 206 Tenn. 336, 333 S.W.2d 799 (1960). (emphasis added)
*** “Conviction upon a charge not made would be sheer denial of due process.” De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed.2d 278 (1937).
State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979)
No doubt like many other criminal cases brought to court in Hamilton County, the James case is a legal nullity. The defects in its substance won’t be reached. If it were reached, the most glaring fault of Officer Hughes’ charge and “investigation” is that there is no mens rea — no guilty intent or guilty mind in the case. It’s not alleged, as it’s supposed to. And it’s not easy to imagine where Judge Webb could find it.
Innocent intent, good citizenship and care for others are written all over the case. They appear in the cop’s narrative. The baffling claim is this: A man commits two felonies, calls police to the scene, waits for their arrival and reports the dangerous pranks of two kids in a car prior to their wrecking it. The guilty intent, it would appear, resides wholly within the heart and between the ears of the policeman serving Mayor Andy Berke and his chief, David Roddy.
Girls have committed a crime
Judge Webb has little option but to dismiss this case because it has no proper charging instrument allowing the Mr. James to face his accuser, as guaranteed in the constitution. No accuser has come forth, and Officer Hughes is not a witness.
It is improper for Mr. James to have been arrested and jailed, all without a proper complaint.
“Mr. James, seeing you have no accuser willing to swear a complaint before the magistrate,” the cop should’ve said, “you are free to leave. Thank you for calling 911, and we are sorry for having troubled you with our questions for so long. You did the right thing, sir — calling us for help. Thank you for caring. Sorry it took so long to determine the girls are lying trying to cover for their misdeeds. We promise to deal with them and their families.”
Mr. James is victim of a false report and false statement to a police officer in violation of Tenn. Code Ann. § 39-16-502. Ella Peters’ conversation with the dispatcher shows she made up the story of the gun as she went. If she is the primary accuser, how is it that she alleges the accused made threatening gestures with a firearm, then asks the older girl if the “black male” had a gun?
This child, age 14, commits a crime, as it “is unlawful for any person to *** [i]nitiate a report or statement to a law enforcement officer concerning an offense or incident within the officer’s concern knowing that *** [t]he offense or incident reported did not occur” and the “information relating to the offense reported is false” Tenn. Code Ann. § 39-16-502.
The James case is not an accident, a mishap and an anomaly. It shows a structural problem with justice in Tennessee. It afflicts everyone, with greatest damage to the poor, the ignorant, the harmless, the minority, the stranger and alien, the orphan and widow.
Four parties in Chattanooga are responsible for this miscarriage of justice, having worked in tandem to extend it until the Friday hearing.
The police officer Mr. Hughes, magistrate Lorrie Miller, attorney Bill Speek (who is an officer of the court) and Judge Gerald Webb.
Their failings together are consistent, upholding prosecutorial prerogative and the state, and debasing and humiliating the citizen, Mr. James, in what state actors call “the process.”