Sixth Amendment claim in Tennessee

1999In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance of counsel, this Court must determine whether the advice given or services rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. 2 Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

1999In reviewing the petitioner’s Sixth Amendment claim of ineffective assistance of counsel, this Court must determine whether the advice given or services rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. 2 Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

2012In Blakely, the Supreme Court held, “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Cunningham v. California, 549 U.S. 270, 290 (2007) (citing Blakely, 542 U.S. at 305 ).

2011In Blakely, the Supreme Court held, “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Cunningham v. California, 549 U.S. 270, 290 (2007) (citing Blakely, 542 U.S. at 305 ).

2020In the absence of proof showing that the government had agreed for Mr. Reynolds to act as a government agent in that meeting, there was no Sixth Amendment violation with respect to the incriminating statements made by the [Petitioner]. “[T]here is no infringement unless the informant was a government agent, and there is no agency absent the government’s agreement [with] the informant for his services.” State v. Hernandez, 842 S.W.2d 306, 316 (Tex. App. 1992) [(internal quotation omitted)].

2018In the absence of proof showing that the government had agreed for Mr. Reynolds to act as a government agent in that meeting, there was no Sixth Amendment violation with respect to the incriminating statements made by the defendant. “[T]here is no infringement unless the informant was a government agent, and there is no agency absent the government’s agreement [with] the informant for his services.” State v. Hernandez, 842 S.W.2d 306, 316 (Tex. App.-San Antonio 1992) (quoting United States v. York, 933 F.2d 1343, 1357 (7th Cir.1991)).

2011State v. Cauthem, 778 S.W.2d 39, 46 (Tenn.1989) (quoting Patterson v. Illinois, 487 U.S. 285 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988); Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981)); see al Because “a Sixth Amendment violation does not depend upon coercion, the protection of the Sixth Amendment is not waived by conduct that shows only that a defendant’s statements were not coerced.” Wyrick v. Fields, 459 U.S. 42, 54 , 103 S.Ct. 394, 400 , 74 L.Ed.2d 214 (1982).

2011State v. Cauthem, 778 S.W.2d 39, 46 (Tenn.1989) (quoting Patterson v. Illinois, 487 U.S. 285 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988); Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981)); see al Because “a Sixth Amendment violation does not depend upon coercion, the protection of the Sixth Amendment is not waived by conduct that shows only that a defendant’s statements were not coerced.” Wyrick v. Fields, 459 U.S. 42, 54 , 103 S.Ct. 394, 400 , 74 L.Ed.2d 214 (1982).

2021While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of the delay.” Wood, 924 S.W.2d at 348 (quoting Doggett, 505 U.S. at 655 (citations omitted)).

2021While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of the delay.” Wood, 924 S.W.2d at 348 (quoting Doggett, 505 U.S. at 655 (citations omitted)).

2016See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 894 (3d Cir. 1999) (concluding that the fact that government showed informant how to use recording equipment on the phone ―was trivial and does not pose a problem of constitutional dimension.‖) (informant was not government agent, so there was no Sixth Amendment violation). -58- The Court of Criminal Appeals noted that Wilda visited the defendant in New York in order to obtain information from him about the murders of the victims and her uncle.

2016See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 894 (3d Cir. 1999) (concluding that the fact that government showed informant how to use recording equipment on the phone ―was trivial and does not pose a problem of constitutional dimension.‖) (informant was not government agent, so there was no Sixth Amendment violation). - 59 - cannot be proved based only on the actions of the alleged agent.

2008On this point, the United States Supreme Court, in adjudicating a Blakely claim, said that not every Blakely-deficient sentence “gives rise to a Sixth Amendment violation . . . [,nor will] every appeal . . . lead to a new sentencing hearing.” United States v. Booker, 543 U.S. 220, 268 , 125 S. Ct. 738, 769 (2005).

2008On this point, the United States Supreme Court, in adjudicating a Blakely claim, said that not every Blakely-deficient sentence “gives rise to a Sixth Amendment violation . . . [,nor will] every appeal . . . lead to a new sentencing hearing.” United States v. Booker, 543 U.S. 220, 268 , 125 S. Ct. 738, 769 (2005).

2005See Momon, 18 S.W.3d at 168 (remanding for the post-conviction court’s determination of harmless error “because the record on appeal does not contain Momon’s testimony from his first trial nor does it contain an offer of proof indicating the substance of the testimony Momon would have offered at his second trial if he had not been denied the right to testify” and noting that, in the post-conviction court, Momon was attempting to establish a Sixth Amendment claim of ineffective assistance of counsel”).

2005See Momon, 18 S.W.3d at 168 (remanding for the post-conviction court’s determination of harmless error “because the record on appeal does not contain Momon’s testimony from his first trial nor does it contain an offer of proof indicating the substance of the testimony Momon would have offered at his second trial if he had not been denied the right to testify” and noting that, in the post-conviction court, Momon was attempting to establish a Sixth Amendment claim of ineffective assistance of counsel”).

2012In Blakely, the Supreme Court held, “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.” Cunningham v. California, 549 U.S. 270, 290 (2007) (citing Blakely, 542 U.S. at 305 ).

2011If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. 542 U.S., at 305 , and n. 8, 124 S.Ct. 2531 .

2021In the opinion on remand, our supreme court stated, “Because we have determined that the Defendants are entitled to relief for plain error, we decline to readdress whether the Defendants properly preserved their Sixth Amendment claim for plenary review.” Id.

2008If the trial court “‘must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.’” Gomez II, 239 S.W.3d at 740 (quoting Cunningham, 127 S. Ct. at 869 ).

2022This court will grant relief for plain error only when: (1) the record clearly establishes what occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the complaining party; (4) the error was not waived for tactical purposes; and (5) substantial justice is at stake; that is, the error was so significant that it “probably changed the outcome of the trial.” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)).

2022This court will grant relief for plain error only when: (1) the record clearly establishes what occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the complaining party; (4) the error was not waived for tactical purposes; and (5) substantial justice is at stake; that is, the error was so significant that it “probably changed the outcome of the trial.” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)).

1991An exhaustive study of the Sixth Amendment requirement that a criminal defendant receive effective assistance of counsel is contained in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

1991An exhaustive study of the Sixth Amendment requirement that a criminal defendant receive effective assistance of counsel is contained in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2026See State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010); State v. Funk, No. E2022-01367-CCA-R3-CD, 2023 WL 7130289 , at *2 (Tenn. Crim.

2022This court will grant relief for plain error only when: (1) the record clearly establishes what occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the complaining party; (4) the error was not waived for tactical purposes; and (5) substantial justice is at stake; that is, the error was so significant that it “probably changed the outcome of the trial.” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)).

2020The United States Supreme Court, however, has stated that “when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment.” Montejo, 556 U.S. at 786 (emphasis in original). “[D]octrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.” Id. at 795 .

2020The United States Supreme Court, however, has stated that “when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment.” Montejo, 556 U.S. at 786 (emphasis in original). “[D]octrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.” Id. at 795 .

2018In the absence of proof showing that the government had agreed for Mr. Reynolds to act as a government agent in that meeting, there was no Sixth Amendment violation with respect to the incriminating statements made by the defendant. “[T]here is no infringement unless the informant was a government agent, and there is no agency absent the government’s agreement [with] the informant for his services.” State v. Hernandez, 842 S.W.2d 306, 316 (Tex. App.-San Antonio 1992) (quoting United States v. York, 933 F.2d 1343, 1357 (7th Cir.1991)).

2016“It is merely a tautology to argue that the government should not be in the business of providing a market for information that infringes Sixth Amendment rights; there is no infringement unless the informant was a government agent, and there is no agency absent the government’s agreement [with] the informant for his services.” State v. Hernandez, 842 S.W.2d 306, 316 (Tex. App.-San Antonio 1992) (quoting United States v. York, 933 F.2d 1343, 1357 (7th Cir.1991)).

2016Thus, Jackson implicitly consented to the interception.‖); State v. Haq, 268 P.3d 997, 1011-13 (Wash. Ct. App. 2012), as corrected (Feb. 24, 2012) (finding no Sixth Amendment violation where defendant and his family were told that each telephone conversation was subject to being recorded and monitored); State v. Riley, 704 N.W.2d 635, 640 (Wis. Ct. App. 2005) (―[S]o long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to suc

2016Thus, Jackson implicitly consented to the interception.‖); State v. Haq, 268 P.3d 997, 1011-13 (Wash. Ct. App. 2012), as corrected (Feb. 24, 2012) (finding no Sixth Amendment violation where defendant and his family were told that each telephone conversation was subject to being recorded and monitored); State v. Riley, 704 N.W.2d 635, 640 (Wis. Ct. App. 2005) (―[S]o long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to suc

2016Thus, Jackson implicitly consented to the interception.‖); State v. Haq, 268 P.3d 997, 1011-13 (Wash. Ct. App. 2012), as corrected (Feb. 24, 2012) (finding no Sixth Amendment violation where defendant and his family were told that each telephone conversation was subject to being recorded and monitored); State v. Riley, 704 N.W.2d 635, 640 (Wis. Ct. App. 2005) (―[S]o long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to suc

2016Thus, Jackson implicitly consented to the interception.‖); State v. Haq, 268 P.3d 997, 1011-13 (Wash. Ct. App. 2012), as corrected (Feb. 24, 2012) (finding no Sixth Amendment violation where defendant and his family were told that each telephone conversation was subject to being recorded and monitored); State v. Riley, 704 N.W.2d 635, 640 (Wis. Ct. App. 2005) (―[S]o long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to suc

2016Va. 2005); see also Sanders, 452 S.W.3d at 315 (―[N]either the Fourth, Fifth, or Sixth Amendment protects a suspect who voluntarily offers information to a confidant. . . .‖) (citing State v. Bacon, 1998 WL 6925 , at *12 (Tenn. Crim.

2016Va. 2005); see also Sanders, 452 S.W.3d at 315 (―[N]either the Fourth, Fifth, or Sixth Amendment protects a suspect who voluntarily offers information to a confidant. . . .‖) (citing State v. Bacon, 1998 WL 6925 , at *12 (Tenn. Crim.

2010Instead, Appellant makes a blanket argument on appeal that the trial court improperly applied enhancement factor (21) to his convictions because “juvenile adjudications . . . differ fundamentally from criminal convictions” and juvenile convictions “do not qualify as prior convictions under the rule established in Apprendi and Blakely.” In Gomez I, the court determined that the Sixth Amendment issue was waived because the defendants “did not raise this constitutional challenge at their . . . sentencing hearing or in their motions for new trial, nor did they raise it in the Court of Criminal App

2008In Gomez I, the court determined that the Sixth Amendment issue was waived because the defendants “did not raise this constitutional challenge at their . . . sentencing hearing or in their motions for new trial, nor did they raise it in the Court of Criminal Appeals.” Gomez, 163 S.W.3d at 648 .

2019The questions asked by the 911 operators were specific just to how to respond to the call and did not appear to be for the purpose of future litigation, so I don’t think it’s a Sixth Amendment violation. -6- In Maclin, the Tennessee Supreme Court adopted a case-by-case approach for reviewing courts to determine whether proffered hearsay was “testimonial” and made “‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” 183 S.W.3d at 349 (quoting Crawford, 541 U.S. at 52 ).

2019The questions asked by the 911 operators were specific just to how to respond to the call and did not appear to be for the purpose of future litigation, so I don’t think it’s a Sixth Amendment violation. -6- In Maclin, the Tennessee Supreme Court adopted a case-by-case approach for reviewing courts to determine whether proffered hearsay was “testimonial” and made “‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” 183 S.W.3d at 349 (quoting Crawford, 541 U.S. at 52 ).

2011Montejo, 129 S.Ct. at 2085 (concluding that “[o]ur precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as that relinquishment of that right is voluntary, knowing, and intelligent”); Jackson, 475 U.S. at 627 , 106 S.Ct. 1404 (concluding that waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis); Downey, 259 S.W.3d at 733 (finding no unequivocal request for counsel during a police-initiated interrogation).

2011Montejo, 129 S.Ct. at 2085 (concluding that “[o]ur precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as that relinquishment of that right is voluntary, knowing, and intelligent”); Jackson, 475 U.S. at 627 , 106 S.Ct. 1404 (concluding that waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis); Downey, 259 S.W.3d at 733 (finding no unequivocal request for counsel during a police-initiated interrogation).

2015Moulton, 474 U.S. at 174 .

2015Moulton, 474 U.S. at 174 .

2011State v. Cauthem, 778 S.W.2d 39, 46 (Tenn.1989) (quoting Patterson v. Illinois, 487 U.S. 285 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988); Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981)); see al Because “a Sixth Amendment violation does not depend upon coercion, the protection of the Sixth Amendment is not waived by conduct that shows only that a defendant’s statements were not coerced.” Wyrick v. Fields, 459 U.S. 42, 54 , 103 S.Ct. 394, 400 , 74 L.Ed.2d 214 (1982).

2011State v. Cauthem, 778 S.W.2d 39, 46 (Tenn.1989) (quoting Patterson v. Illinois, 487 U.S. 285 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988); Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981)); see al Because “a Sixth Amendment violation does not depend upon coercion, the protection of the Sixth Amendment is not waived by conduct that shows only that a defendant’s statements were not coerced.” Wyrick v. Fields, 459 U.S. 42, 54 , 103 S.Ct. 394, 400 , 74 L.Ed.2d 214 (1982).

2007Michigan v. Harvey, 494 U.S. 344, 349 , 110 S. Ct. 1176, 1179 (1990). -5- were made to the Appellant in exchange for his statement, nor was he in any way coerced or threatened.

2007Michigan v. Harvey, 494 U.S. 344, 349 , 110 S. Ct. 1176, 1179 (1990). -5- were made to the Appellant in exchange for his statement, nor was he in any way coerced or threatened.