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Following Liliana Segura’s piece that was highlighted on our blog last Friday, we continue the theme today by noting another instance of misconduct out of Tennessee. One of our readers alerted us to the case of Alfonzo Marquis Sutton, which deals with the improper introduction of prior bad acts. The Tennessee Court of Criminal Appeal has overturned Sutton’s conviction for  conspiracy-to-sell-crack cocaine on the basis of what it has deemed “egregious” prosecutorial misconduct.

On February 4, 2013, the Court released its opinion, finding that the trial court should have granted a mistrial after the state played a tape recording of a police deputy entrapping the defendant by having a drug user call him and ask for cocaine. In the preamble to the phone call, Deputy Tim Miller, the Assistant Director of the Seventeenth Judicial District Drug Task Force said:

Getting ready to make a recorded telephone call to Alfonzo Sutton.  I’m familiar with Mr. Sutton; I have arrested him in the past.  He’s known to be involved in the distribution of crack cocaine.  The number that’s going to be called is (615) 870-6289, wherein $100 worth of crack cocaine will be ordered to come to room 20 at the Blue Ribbon Motel.

The state played this part of the recording to the jury. Defense counsel objected and the trial court immediately instructed the jury to disregard that part of the tape: “[I]t is absolutely urgently important that you disregard anything you have heard up to this point.”  A motion for new trial hearing ensued, in which the trial court called the remarks “ridiculous preliminary statements” and the state’s decision to introduce them, “completely inappropriate.” However, finding that the evidence against the defendant was overwhelming, the trial court judge ruled against a mistrial and the case proceeded. The defendant was found guilty.

On appeal, the state argued that it had done nothing wrong because it had provided the tape recording to defense counsel as part of discovery and that the defendant had plenty of time to file a motion requesting that the first part of the recording be withheld from the jury. The defendant responded that he “never anticipated that the State would choose to play inadmissible personal comments…prior to the phone call itself.”

The Court of Appeals agreed, noting that the state did not file a notice of intent to introduce Deputy Miller’s introductory comments into evidence. Furthermore, when the prosecutor announced that the recording would be played for the jury, he “specifically stated that he was going to play ‘a digital recording of the telephone call that has been referenced by [Deputy] Miller’s testimony.'” Defense counsel took that to mean the phone call between the drug user and the defendant, not Deputy Miller’s preamble.

Indeed, the Court found that the prosecutor “appeared to be intentionally trying to prejudice the appellant.”

As we have noted in previous posts, a finding of prosecutorial misconduct is not enough to overturn a conviction. The misconduct must be so egregious that it affected the jury’s verdict.  In this case, the Court found that despite strong evidence against the defendant, the “highly prejudicial nature” of the prosecutor’s misconduct coupled with his/her intent in committing it warranted a new trial.

Read the full opinion here.


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