TN – State v Fitzpatrick – Closing Arguments – van Irion – Constitutionally protected activities

In his closing arguments, van Irion argued that since Walt petitioning the Grand Jury or the court or the oversight committee is a constitutionally protected activity of petitioning the government, that therefor the jury should find Walt not-guilty.

In fact he even suggested that such a constitutionally protected activity cannot be the foundation for criminal charges, although later he accepts that lying under oath is considered to be perjury and in fact can be criminal. Therefore, if the jury believes that the evidence and facts support Walt having lied, and lied knowingly, that they jury may find a guilty verdict. Of course, the jury also has to find that the lies were material, and since the judge rejected the motion based on a failure on Walt’s part to indicate a relationship between him and Jeff Cunningham, anything in the motion is not material.

However, material means that it could have affected the course or outcome.

A conviction for aggravated perjury requires that the false statement be material.See Tenn. Code Ann. § 39-16-703(a)(3). The statutory language concerning perjury defines “material” as meaning that “the statement, irrespective of its admissibility under the rules of evidence, could have affected the course or outcome of the official proceeding.”

Source:  State v. Cutshaw, 967 SW 2d 332 – Tenn: Court of Criminal Appeals 1997

In addition, he argues that there remains sufficient doubt that Mr Fitzpatrick may not have known that some of his statements may have been lies. This is somewhat of a dangerous argument since it admits that the Jury has the right to determine intent from the facts presented and Appeals Courts are reluctant to second guess the Jury’s thinking in these findings.

See for example:

When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.

Source:  State v. Cutshaw, 967 SW 2d 332 – Tenn: Court of Criminal Appeals 1997

PS: I believe that if Walt had challenged the sufficiency of the presentment with respect to clearly identifying what statement or statements were considered to be perjurous, he may have had an opportunity to succeed on appeal, however I have not found any evidence so far, that such an argument was made.

It has been stated in innumerable cases:

“Neither this Court, nor the Court of Criminal Appeals, is free to re-evaluate the evidence as it pleases. A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

In Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768 (1966), the Court said:

“This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.”

Source:  State v. Cabbage, 571 SW 2d 832 – Tenn: Supreme Court 1978

A lawful accusation is an essential jurisdictional element, and thus, a prosecution cannot proceed without an indictment or presentment that sufficiently informs the accused of the essential elements of the offense. State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992); State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979). A judgment based on an indictment or presentment that does not allege all the essential elements of the offense is a nullity. Warden, 381 S.W.2d at 245;McCracken v. State, 489 S.W.2d 48, 53 (Tenn. Crim. App. 1972).

Applying these precepts to the case sub judice, we conclude that the presentment charging the Defendant with aggravated perjury was defective in that it did not sufficiently state the facts constituting the alleged offense. As we set forth above, the presentment alleged only that while under oath as a witness in the trial of Robert Miller, the Defendant knowingly, “with intent to deceive, made material false statements in violation of T.C.A. 39-16-703.” This language essentially tracks the statutory elements of the offense of aggravated perjury. See Tenn. Code Ann. § 39-16-703, -702(a)(1). The presentment, however, must not only allege the essence of the criminal offense, but also state which of the Defendant’s actions bring him within the statute so as to give him sufficient notice of the facts sought to be proved against him and of what offense he is called upon to answer. See Church v. State, 206 Tenn. 336, 333 S.W.2d 799, 809 (1960) (stating that the description of the offense charged must be sufficient in distinctness, certainty and precision to enable the accused to know what offense he or she is charged with and to understand the special nature of the charge he or she is called upon to answer); see generally David L. Raybin, Tennessee Criminal Practice and Procedure, § 16.19; 14 Tennessee Jurisprudence,Indictments, Informations and Presentments, § 19. In other words, the presentment must state sufficient facts and circumstances as will constitute the offense and not merely a legal result or conclusion. See Warden, 381 S.W.2d at 245; Raybin, Indictments, Informations and Presentments, supra. We believe 339*339 that the presentment in the case at bar did not allege sufficient facts to identify the offense for which the Defendant was being prosecuted.

Source:  State v. Cutshaw, 967 SW 2d 332 – Tenn: Court of Criminal Appeals 1997