State of Tennessee v. Thomas Lee Hutchison ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 17, 2013 Session
STATE OF TENNESSEE v. THOMAS LEE HUTCHISON
Appeal from the Criminal Court for Knox County
No. 88264 Jon Kerry Blackwood, Judge
No. E2012-02671-CCA-R3-CD - Filed April 11, 2014
A Knox County jury convicted appellant of three counts of facilitation of first degree murder
and one count of facilitation of especially aggravated robbery. The trial court merged the
facilitation of first degree murder convictions and sentenced appellant to seventeen years.
The trial court also sentenced appellant to a concurrent sentence of eight years for facilitation
of especially aggravated robbery. On appeal, appellant presents thirteen issues for our
review: (1) whether the trial court erred in overruling appellant’s motion to suppress evidence
seized in an extended warrantless search of his house; (2) whether the trial court erred in
allowing the State to introduce video footage of the crime scene; (3) whether the trial court
erred in allowing the State to introduce evidence of blood samples taken from appellant
without a warrant; (4) whether the trial court erred in admitting prior bad act evidence; (5)
whether the trial court erred by allowing testimony regarding evidence that had been
destroyed; (6) whether the trial court erred by allowing a medical examiner to testify about
an autopsy performed by another medical examiner; (7) whether the trial court erred in
denying appellant’s three motions for mistrial based on prosecutorial misconduct; (8)
whether the trial court erred when it denied appellant’s request for a continuance in light of
the State’s late disclosure of certain evidence; (9) whether the trial court erred by denying
appellant’s request to strike a witness’s testimony when the testimony was internally
contradictory; (10) whether the trial court erred by allowing the State to introduce graphic
photographs of the victim’s injuries; (11) whether the trial court erred in its jury instructions;
(12) whether the evidence was sufficient to support appellant’s convictions; and (13) whether
appellant is entitled to a new trial due to cumulative error. Based on our thorough review,
we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE, J.,
joined. J OSEPH M. T IPTON, P.J., filed a separate opinion, concurring in part and dissenting
in part.
Robert L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for the appellant, Thomas
Lee Hutchison.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case concerns the February 19, 2002 murder and robbery of the victim, Gary
Lindsey. The victim was killed in appellant’s home, and the police arrested appellant for the
crime. On December 11, 2007, a Knox County grand jury indicted appellant for
premeditated murder, murder in the perpetration of robbery, murder in the perpetration of
theft, and especially aggravated robbery. Prior to trial, appellant moved the court, in separate
pleadings, to suppress blood evidence taken from appellant without a warrant and to suppress
all evidence seized from appellant’s house during a warrantless search. The trial court
denied both motions. On or around November 19, 2010, the State notified appellant that
physical evidence in his case had been inadvertently destroyed by the Knoxville Police
Department (“KPD”). Consequently, appellant moved the court to dismiss the indictment
based on the destruction of evidence. The trial court heard appellant’s motion to dismiss the
indictment on February 25, 2011, and subsequently denied the motion. On May 27, 2011,
appellant filed a motion requesting that the trial court reconsider the previously filed motions
to suppress evidence. The trial court granted the motion to reconsider but ultimately denied
the motions to suppress by written order filed July 13, 2011. The matter proceeded to trial
on August 8, 2011, and the jury found appellant guilty of three counts of the lesser included
offense of facilitation of first degree murder and one count of the lesser included offense of
facilitation of especially aggravated robbery.
A. Motions to Suppress Hearing
The trial court heard arguments and testimony regarding both motions to suppress
during the same hearing. At the hearing, Michael Mays testified that he was the records
specialist for the Knox County Emergency Communications District. According to Mr.
Mays, the 9-1-1 system received a call regarding a shooting at 1:21 a.m. on February 20,
2002, at appellant’s residence. The complainant was Gene Mitchell. The first officer arrived
at the scene at 1:23 a.m., and another officer arrived at 1:28 a.m. Detectives from the Major
Crimes unit arrived at 1:37 a.m., and the crime scene investigators arrived at 1:39 a.m. A
person was transported to the University of Tennessee Medical Center emergency room,
-2-
accompanied by a Major Crimes detective and an officer, at 1:46 a.m. At 2:56 a.m.,
University of Tennessee police were called for a blood alcohol test kit. Mr. Mays said that
the majority of the police began leaving the crime scene around 4:00 a.m. On cross-
examination, Mr. Mays clarified that the records did not indicate that a person was
transported to the emergency room, only that a detective and an officer went there at 1:46
a.m. In addition, he said that the last crime scene officer left the scene at 8:49 a.m.1
KPD Officer Joshua Shaffer testified that he received a call about a shooting on
Millertown Pike on February 20, 2002. He had just driven by the location, so he turned
around to find the address. A vehicle attempting to exit a driveway at a high rate of speed
caught his attention, and he blocked the vehicle in the driveway. The driver exited and
screamed, “‘He’s inside.’” Officer Shaffer then saw two men exiting the house. He gathered
the three men into the carport of the house. The men were frantic and kept saying,
“‘Inside.’” Officer Shaffer entered the house and observed appellant sitting on the floor.
Appellant had blood on his head and upper body. Officer Shaffer also saw a broken fireplace
poker on the floor that had blood on it. The other three men re-entered the house and began
yelling at appellant. Officer Shaffer asked another officer who had arrived to escort the men
out. As they were leaving, they pointed toward a specific room and said, “‘He’s in there.’”
Officer Shaffer entered the room via a small set of stairs. He noted that it was not possible
to see the floor of the room until one reached the top of the stairs. Once he could see the
floor, he observed a body lying face down on the floor with significant injuries. Officer
Shaffer testified that it was clear from the injuries that the person was deceased, so he briefly
checked the room to assess whether anyone else was there, then exited.
Thereafter, Officer Shaffer stayed with appellant while medical personnel treated him
at the house, and then he accompanied appellant to the hospital in the ambulance. Officer
Shaffer testified that his purpose was to take any potential evidence, such as appellant’s
clothing, into possession immediately if he had the opportunity, and he did, in fact, take
possession of appellant’s clothing. Officer Shaffer further testified that he observed blood
and “tissue type items” on appellant’s pants. He said that at the time, he was not able to
affirmatively identify the tissue, but he connected it with the victim’s head trauma. While
at the hospital, Officer Shaffer asked the hospital staff to take a sample of appellant’s blood
for a drug and alcohol screening.
On cross-examination, Officer Shaffer testified that the first time he recalled seeing
handcuffs on appellant was in the ambulance. He further testified that he did not have a
search warrant for appellant’s house and that he did not have a resident’s consent to search.
1
We note that other witnesses provided slightly different times; however, with the differences being
inconsequential, for purposes of this opinion, we will rely on the times provided by Mr. Mays.
-3-
Officer Shaffer confirmed that at the time he requested the blood sample, he did not have any
information about drug or alcohol use at appellant’s residence.
KPD employee Janice Gangwer testified that she was a forensic specialist in 2002.
She responded to the scene of the victim’s homicide on February 20, 2002. She videotaped
the scene prior to any collection of evidence. The State played the crime scene video while
Ms. Gangwer narrated. Ms. Gangwer also detailed the evidence collected from the scene and
evidence collected by Officer Shaffer (appellant’s clothing and blood sample) that he turned
over to her. She testified that she was at the scene from 1:41 a.m. until 6:00 a.m.
On cross-examination, Ms. Gangwer testified that the victim’s body was removed
from the crime scene around 5:30 a.m. She agreed that nothing occurred over the course of
the time she was at the scene that would have destroyed evidence. Ms. Gangwer testified
that she collected blood, swabs of appellant’s hands, and fingernail clippings from appellant
pursuant to a search warrant. On re-direct examination, Ms. Gangwer testified that the crime
scene log indicated that the victim’s body was removed at 5:00 a.m.
The trial court ultimately denied appellant’s motions to suppress, and it reaffirmed this
decision after reconsidering the motion. The trial court concluded that Officer Shaffer’s
entry into appellant’s house was under exigent circumstances and that the crime scene unit’s
entry was an extension of Officer Shaffer’s entry. The trial court further concluded that the
officers were justified in seizing evidence under the plain view doctrine. Finally, the trial
court concluded that the seizure of appellant’s blood by Officer Shaffer was reasonable
because Officer Shaffer had probable cause to believe a crime had been committed. The trial
court reasoned that analysis of appellant’s blood would be critical evidence, considering the
blood spatters found in his house and the blows he had received.
B. Motion to Dismiss Indictment Hearing
On November 24, 2010, appellant moved to dismiss the indictment based on the
State’s negligent destruction of material, exculpatory evidence. In the motion, appellant
alleged that the State had notified appellant’s counsel on November 19, 2010, that all
evidence in his case had been destroyed. The trial court held a hearing on the motion on
February 25, 2011.
At the hearing, the prosecutor reviewed the history of the case and explained that the
evidence in the case was stored on State Street. The case was scheduled for trial in August
2010, so the prosecutor called KPD and asked that the evidence be pulled so that she and
appellant’s counsel could review it. The attorneys ultimately did not view the evidence then
because the case was continued. When they began preparing for trial again, the State’s
-4-
attorney called KPD, and KPD informed her that they could not locate the evidence. The
State’s attorney explained KPD’s general procedure for destroying evidence: KPD obtains
a court order to destroy evidence and then places evidence on pallets outside to be picked up
and taken to a landfill. KPD suspected that the evidence in appellant’s case was
inadvertently taken to the landfill along with evidence tagged for destruction.
Appellant’s counsel argued that while photographs of much of the evidence existed,
no photographs existed of appellant’s shirt and jacket, which were seized by Officer Shaffer
at the hospital. Counsel further argued that the items were exculpatory because the crime
laboratory had determined that only appellant’s blood was on the items. Counsel also posited
that the destruction of the evidence prevented appellant from presenting a defense that the
murder was committed by another person or was committed in self-defense. In addition,
counsel stated that the destruction of a gold nugget ring prevented the jury from contrasting
that ring with the ring removed from the victim during the autopsy and that it impeded
witnesses from identifying whether the rings were typically worn by the victim. Counsel
argued that a chain of custody issue arose due to the destruction because the chain of custody
documentation was marked on each individual item. Counsel contended that appellant was
left with no way to preserve the issue of appellant’s blood samples because the samples were
destroyed and that appellant no longer had any way to collect fingerprints or test any of the
items, such as the crack cocaine found on the victim’s person and in appellant’s house.
Finally, counsel pointed out that there was no destruction order in this case and no
documentation of any removal of the evidence from storage after April 2009.
The State responded that the case was not limited to physical evidence because there
were also laboratory reports, photographs, and testimony from witnesses and investigators.
The State contended that the evidence was inculpatory, as shown in part by appellant’s
motion to suppress all of the evidence, rather than exculpatory. The State also noted that
appellant had never asked to test any of the evidentiary items prior to being notified of their
destruction.
In its order denying appellant’s motion to dismiss, the trial court concluded that the
destroyed evidence had some exculpatory value. The State had conceded that it had a duty
to preserve the evidence, and the court determined that the destruction of the evidence was
simple negligence. In making that determination, the trial court focused on several factors:
(1) no motion was made for additional testing of the evidence between 2002 and 2009; (2)
when additional testing was performed in 2009, “no mention was made of its exculpatory
nature until it was destroyed”; (3) the KPD stored the evidence according to protocol for
many years but negligently failed to return it to its original place; and (4) the KPD
accidentally destroyed the evidence. The court stated that it had reviewed the exhibits filed
in the case and that it determined that the probative value of the evidence was not significant
-5-
because any “[f]urther testing would be speculative” and because the evidence would have
shown “what would be uncontroverted at trial.” The court further determined that the
photographs of the evidence alongside photographs of the crime scene were reliable and
provided appellant an adequate opportunity to present a defense. The court ruled that the
destruction of the evidence did not deprive appellant of a fair and impartial trial and thus
denied appellant’s motion to dismiss the indictment.
C. Motion to Dismiss and Motion for a Continuance
During a pre-trial motion hearing on August 8, 2009, appellant renewed his motion
to dismiss the indictment and moved for a continuance. The continuance motion was based
on his having received from the State on August 5, 2009, two photographs, which purported
to be of appellant’s clothing. In addition, appellant complained that he had not received from
the State a statement made to the police by witness John Mitchell. The State responded that
appellant had recently requested photographs from the Tennessee Bureau of Investigation
(“TBI”). The State contacted the TBI, and Agent Keith Proctor sent the State two
photographs, which it then sent to appellant. The photographs were of appellant’s clothing
that had been tested by the TBI, specifically a jacket and shirt. The State noted that these
clothing items were the same ones appellant had listed at a prior motion hearing as items of
which he did not have photographs following the destruction of the evidence. Regarding
John Mitchell’s statement, the State said that it did not have a copy of the statement but that
the police investigative action report detailed what each witness told the police. The State
contended that appellant would be able to potentially impeach John Mitchell with the action
report. The trial court denied appellant’s motions.
D. Trial
Michael Mays, the custodian of records at the Knox County Emergency
Communications District 9-1-1 (“E-9-1-1”), explained that recordings of 9-1-1 calls were
only kept for fifteen months but that calls and dispatch reports were also logged into the
computer-aided dispatch (“CAD”) system. The State introduced a CAD report, dated
February 20, 2002, into evidence and asked Mr. Mays to explain the report. Mr. Mays
testified that according to the report, E-9-1-1 received a call from Gene Mitchell at 1:19 a.m.
The dispatcher noted on the report that she had difficulty understanding the complainant
(Gene Mitchell) but that the complainant reported that someone had been killed and that
“‘they [were] holding a suspect.’” The remainder of Mr. Mays’ testimony was consistent
with his testimony during the motion to suppress hearing, with two notable exceptions. He
added that a description of witness Penny Cox was entered at 2:56 a.m. and that the report
noted that officers had called area taxi cab companies to determine whether Ms. Cox had
taken a cab.
-6-
KPD Officer Joshua Shaffer testified consistently with his testimony at the motion to
suppress hearing. Officer Shaffer was the first officer to arrive and encountered three men
outside of appellant’s home. He entered appellant’s home and observed appellant, who was
sitting in the living room and obviously injured. Officer Shaffer found the victim’s body. He
testified that it was immediately apparent that the victim was deceased. Officer Shaffer
accompanied appellant to the hospital and collected his clothing. Officer Shaffer also had
the hospital staff take a blood sample from appellant. He said that he requested the blood
sample to determine whether the blood at the scene and on appellant belonged to appellant
or the victim.
In addition to the testimony previously given, Officer Shaffer testified that he had
been involved in drug investigations and had learned that people often hid drugs in their
pockets, in the lining of their waistbands, or in their underwear. He further testified that
when he found the victim, the victim’s pants had been pulled down around his knees. Officer
Shaffer said that people who are high on crack cocaine are generally agitated or excited.
When he found appellant, appellant was “disoriented, dazed, confused[,] . . . the other end
of the spectrum” from someone who had just smoked crack cocaine. Officer Shaffer testified
that appellant’s behavior was more consistent with someone “coming off of a high” or at “the
end phase” of a high.
On cross-examination, Officer Shaffer testified that the victim’s body was not covered
when he first saw it. He further testified that all of appellant’s clothing had been placed in
a single bag by a hospital employee.
Melanie Carlisle, a forensic scientist with the TBI, testified that she tested appellant’s
blood using the sample taken at 3:23 a.m. on February 20, 2002. She found less than .25
micrograms per milliliter of cocaine in his blood. She further testified that based on the half-
life of cocaine, appellant would have ingested cocaine three hours before the blood sample
was taken.
KPD crime scene technician Janice Gangwer testified that she processed the scene at
appellant’s house. She first videotaped the scene, beginning outside the house and walking
through the house. The State played the video for the jury as Ms. Gangwer narrated. Also
through Ms. Gangwer’s testimony, the State introduced photographs of the crime scene;
appellant, as he appeared at the hospital; and Penny Cox, as she appeared while at the police
station. Ms. Gangwer and her partner, Gerald Smith, collected evidence from the house,
including a knife handle with a broken blade; 0.27 grams of crack cocaine; a crack pipe; a
crowbar with blood, hair, and brain matter on it; a shirt; a jacket; and a “gold nugget ring”
with blood on it from the bathroom counter.
-7-
Ms. Gangwer testified that she also collected swabs of appellant’s hands, head, and
right foot, as well as his fingernail clippings. She observed while a nurse drew appellant’s
blood, and then she transported his blood and the other items to the property unit. Ms.
Gangwer submitted to the TBI all the samples she had taken, appellant’s blood, samples from
appellant’s clothing, and blood and hair samples from the victim. Ms. Gangwer testified that
she and Mr. Smith tested various items in the house for fingerprints, including the knife
handle and the crowbar. They were unable to obtain useful fingerprints from either item
because the knife handle was covered in blood and the surface of the crowbar was too rough.
Penny Cox testified that she met appellant through John “J.B.” Mitchell. She met the
victim through Mr. Mitchell’s family. Ms. Cox said that the first day she went to appellant’s
house, Mr. Mitchell and the victim were also there. The following day, she was again at
appellant’s house along with Mr. Mitchell and the victim, and they played a card game
together. Ms. Cox testified that during the game, appellant asked the victim for crack
cocaine. The victim responded by calling appellant a “dumb a**.” Ms. Cox said that she
was at appellant’s house the day after the card game and that she planned to rent a room from
appellant. That day, appellant told her that he did not like the victim and that he planned to
rob the victim. Appellant did not tell her his plan, however.
Ms. Cox testified that she overheard appellant talking on the telephone with a person
she assumed was the victim. Appellant told the victim that he knew a doctor who wanted to
buy crack cocaine. Subsequently, the victim and Mr. Mitchell arrived at appellant’s house.
Ms. Cox stayed in the bedroom she planned to rent, but she managed to overhear their
conversation. The men discussed setting up a drug deal with the doctor, and appellant said
that he did not want anyone else in the house other than Ms. Cox, who would stay in her
bedroom. Mr. Mitchell and the victim left appellant’s house and later returned with a pizza.
They went directly to the upstairs bedroom. Mr. Mitchell came back downstairs and smoked
crack with Ms. Cox in her bedroom. After Mr. Mitchell left the house, Ms. Cox fell asleep.
Ms. Cox testified that she was awakened by the sound of loud thumps. Ms. Cox
emerged from her bedroom and saw appellant exiting the upstairs bedroom. She stated that
she thought she saw the victim’s body on the floor in the upstairs bedroom before appellant
closed the door. Ms. Cox described appellant as having blood on his hands and said he was
“wild looking.” Appellant told Ms. Cox that he had killed the victim with a knife. She said
that he looked out all the windows and turned off the lights. Appellant would not allow her
to leave or check on the victim. Ms. Cox testified that he asked her to help him dispose of
the body: “He said that he wanted to chop [the victim] up and burn him in the fireplace or
take him out back to a nursery and bury him.” She refused to help him. Ms. Cox said that
they smoked crack together and that he allowed her to call a friend, “Kim,” to pick her up.
-8-
Ms. Cox testified that Kim picked her up and that they went to Kim’s apartment. Ms.
Cox told Kim what appellant had done, and Kim took her to “George[’s]” house on
“Tacoma.” While at George’s house, Ms. Cox called Mr. Mitchell’s father, Gene Mitchell,
II, and told him that appellant had killed the victim. She was taken by the police to the police
station the next day, where they interviewed her for several hours. Ms. Cox testified that she
had not changed clothes or showered in the interim between leaving appellant’s house and
arriving at the police station. She said that she did not have any blood or brain matter on her.
Ms. Cox denied stabbing, bludgeoning, or even touching the victim. She further testified that
she had been cooperative with the investigation and that at the time of trial, she no longer
used cocaine.
On cross-examination, Ms. Cox testified that during a jury-out hearing, she had
mistakenly said that the victim was the person who did not want anyone else in the house
during the drug deal with the doctor. She said that she did not remember telling the police
that appellant had not been angry with the victim. She also did not remember testifying at
an October 2007 hearing that she had not smoked cocaine the evening of the murder. Ms.
Cox admitted that she had a physical relationship with both Mr. Mitchell and the victim.
TBI special agent forensic scientist Margaret Bash testified that in 2002, she worked
in the serology unit. Agent Bash tested two areas of appellant’s blue jeans, the left pocket
and the ankle area, against samples of appellant’s blood and the victim’s blood. Blood from
the pocket matched appellant’s, and blood from the ankle area matched the victim’s. She
also tested appellant’s socks and determined that the blood on those was the victim’s. On
cross-examination, Agent Bash testified that she did not recall what area of appellant’s socks
she tested.
Gerald Smith testified that in 2002, he was a crime scene technician with the KPD.
Mr. Smith described the scene in the room where the victim was found: The victim was lying
face down on the floor, and there was blood spatter around the victim, up the walls, and on
items nearby. He noted that some items in the room did not have blood spatter but were on
top of items that did have blood spatter, which he interpreted to mean that “[t]here had been
some covering up of some of the spatter.” Mr. Smith explained that he and Ms. Gangwer
attempted to reveal the scene as it had been “at the time that [the] force was applied to [the]
blood source,” which they did by removing layers of items and examining each layer
individually. Mr. Smith testified that he measured the victim’s head wound and described
the wound as the source of the spattered blood. The State moved into evidence a photograph
depicting Mr. Smith’s measurement of the head wound, as well as several photographs of
items found at the scene that illustrated the blood spatter. Mr. Smith opined that based on
the blood spatter patterns, the victim was already prone on the carpet when he received “the
majority of the blows.” Mr. Smith testified that he attended the victim’s autopsy. He brought
-9-
the crowbar and the knife handle found at the scene to the autopsy at the medical examiner’s
request. He said that the autopsy revealed that the victim had two stab wounds to his back
and that the knife blade was still in his back. Mr. Smith collected the victim’s clothing, the
knife blade, a bag of marijuana found in the victim’s shirt, and a crack rock found in the
victim’s sock.
John Bolton “J.B.” Mitchell testified that he knew both appellant and the victim. He
called the victim one of his best friends and stated that he knew appellant through his father,
Eugene “Gene” Mitchell. Mr. Mitchell testified that appellant met the victim through the
Mitchell family. He said that the victim occasionally brought food to appellant when
appellant was hungry. Mr. Mitchell stated that he knew Penny Cox through his father. Mr.
Mitchell testified that in the days leading up to the victim’s death, he took Ms. Cox to
appellant’s house, where they used crack cocaine together. He would come by appellant’s
house whenever Ms. Cox called him to buy more crack cocaine.
On February 19, 2002, Mr. Mitchell used cocaine with Ms. Cox at appellant’s house
and gave Ms. Cox and appellant each $20 worth of crack cocaine. He used Ms. Cox’s car
that day to drive around making drug sales. Around 8:30 or 9:00 p.m., Mr. Mitchell gave the
victim a ride to appellant’s house. He said that when they arrived, appellant asked Mr.
Mitchell why he had accompanied the victim, and Mr. Mitchell explained that the victim’s
car was broken down. Mr. Mitchell observed that doors were open in appellant’s house that
he had never seen open before. When he questioned appellant about it, appellant said that
his friend, to whom the men planned to sell drugs, had run away because he was worried
about being robbed. Mr. Mitchell testified that appellant was acting strangely during this
time and that as a result of appellant’s behavior, Mr. Mitchell warned the victim not to go
through with the sale. The victim ordered a pizza, and the three men waited for the pizza and
for the buyer to return. Appellant pressured Mr. Mitchell to leave the house, which he
eventually did. Before Mr. Mitchell left, he told the victim to call him when he was ready
to leave.
Mr. Mitchell testified that the victim never called him. Mr. Mitchell called appellant
to ask about the victim’s whereabouts, and appellant told him that the victim had left.
Appellant also asked Mr. Mitchell to bring him $40 worth of crack cocaine. Mr. Mitchell
and his brother went to appellant’s house to sell him the cocaine around 1:00 a.m., and they
saw their father along the way, waving at them and looking “hysterical.” When they arrived
at appellant’s house, appellant came outside, and they began discussing the drug deal. Mr.
Mitchell’s father arrived at that point and said that Ms. Cox had told him that appellant had
stabbed the victim. Mr. Mitchell ran inside and found the deceased victim in the upstairs
room. Mr. Mitchell said that the victim was wrapped in a blanket with a crowbar lying on
top of him and that “[h]e had no brains in his head.” Mr. Mitchell unwrapped the victim and
-10-
prayed for his soul. He then “went out there to get” appellant. Appellant tried to run, but Mr.
Mitchell stopped him and beat him. He and his family took appellant back inside appellant’s
house. Mr. Mitchell dialed 9-1-1 and handed the telephone to his father. He continued to
beat appellant and asked him why he killed the victim. Appellant responded, “I didn’t do it
by myself.” Appellant would not say who else was involved, however. When the police
arrived, Mr. Mitchell went with them for questioning.
Mr. Mitchell testified that prior to his death, the victim had $2,000 in cash, marijuana,
and “a lot” of crack cocaine. The State showed Mr. Mitchell a photograph of the cocaine
found in the victim’s sock after his death, and Mr. Mitchell said that the victim had “way
more” than that amount before his death. Mr. Mitchell identified the nugget ring found in
the upstairs bathroom as the victim’s, explaining that he was with the victim when he bought
the ring. Mr. Mitchell further explained that the victim customarily wore two rings on one
hand. Mr. Mitchell testified that the crowbar found with the victim was usually propped up
beside appellant’s front door. Mr. Mitchell denied harming or robbing the victim.
On cross-examination, Mr. Mitchell testified that his father was on the telephone with
9-1-1 while Mr. Mitchell was beating appellant. He supposed that 9-1-1 was recording any
statements made at that time. Mr. Mitchell said that he could not tell whether appellant was
bloody when he came outside because it was dark. Mr. Mitchell testified that Ms. Cox had
been at appellant’s house for one and a half to two days before the victim’s death. He said
that he thought appellant’s house would be a safe place for her to “get high,” where she
would not have to worry about being robbed. Mr. Mitchell agreed that he had a physical
relationship with Ms. Cox. He said that he never played cards with Ms. Cox, appellant, and
the victim. Mr. Mitchell testified that the victim ordered the pizza to be delivered; he did not
leave to pick one up. Mr. Mitchell recalled that he spoke to Ms. Cox before he left
appellant’s house and told her to call him when the drug deal was complete. He agreed that
he was driving Ms. Cox’s car and said that Ms. Cox knew he used the car to make drug sales,
not to fix a broken taillight. Mr. Mitchell testified that he talked to Ms. Cox about the
victim’s death several times because he “was mad at her” and “thought she might have had
something to do with it.” Mr. Mitchell said that he did not leave the house to meet the police
outside; he stayed inside to continue restraining appellant.
TBI special agent forensic scientist Keith Proctor testified that on March 2, 2009, he
received a request from Gerald Smith to test certain items, including a blue sweatshirt, two
jackets, white shoes, a knife handle, a cellular telephone, a ring, a carpet sample, a crowbar,
swabs from appellant’s hands, and clippings from appellant’s fingernails. He was also given
blood standards from appellant and the victim. Agent Proctor found both appellant’s and the
victim’s blood on the finger swabs and fingernail clippings from appellant’s right hand, with
appellant being the major contributor and the victim being the minor contributor. Only
-11-
appellant’s blood was located on the swabs and fingernail clippings from appellant’s left
hand. Human blood was located on appellant’s foot swab, but the DNA was insufficient or
degraded. Agent Proctor tested a blue shirt and found it to be positive for appellant’s blood.
A maroon jacket likewise tested positive for appellant’s blood. Appellant’s blood was found
on his white shoes, but other areas on the shoes provided inconclusive results due to
degraded or insufficient DNA. Agent Proctor found the victim’s blood on the knife handle
and the crowbar.
On cross-examination, Agent Proctor testified that he did not test the cellular
telephone because he did not deem it necessary. He also did not examine the ring or carpet
sample.
KPD Officer Bob Solomon testified that he worked in the property unit. He recalled
that the evidence in appellant’s case was originally stored at the police department but that
it was moved to an offsite storage location due to the age of the case. He testified that he
received a call from the prosecutor requesting to view the evidence prior to the trial date.
Officer Solomon said that the evidence was moved to a shelf near the door. The evidence
stayed there even after the property unit learned that the case had been continued. At some
point, the property unit realized that the evidence was missing. Teams of officers searched
the storage facility for the evidence. Officer Solomon estimated that they searched twenty
times but were unable to find it. He testified that the police department’s policy was to only
destroy evidence upon a court order. He did not recall whether there were any destruction
orders issued for any property stored in the same facility as the evidence in the instant case.
On cross-examination, Officer Solomon testified that only three officers had access
to the storage site. He further testified that any evidence set for destruction would be
checked against a list of cases for which there were court orders for destruction. Officer
Solomon agreed that there was no indication that the evidence in appellant’s case was
mistakenly destroyed.
Former KPD Investigator Jim Murray testified that he worked in the major crimes
division in 2002. He responded to appellant’s address on February 20, 2002, at
approximately 1:40 a.m. Investigator Murray testified that he and fellow investigators
received a briefing from the responding officers, after which he and another investigator
began processing the crime scene. Another investigator returned to the police department
to question the Mitchells. Investigator Murray testified that he observed a knife handle in
the room with the victim’s body and that similar knives were found in the kitchen. He
noticed that the victim was wearing one gold ring and that another finger had an area void
of blood, which led Investigator Murray to believe that the victim had been wearing a second
ring. Investigator Murray found a ring on the vanity in the upstairs bathroom.
-12-
Investigator Murray further testified that he went to the hospital to see appellant. He
observed blood on appellant’s hands, so he obtained a search warrant to collect samples
therefrom. Investigator Murray said that while he was waiting for the search warrant, the
police were trying to locate a witness, Penny Cox. Later that day, he received a notification
that Ms. Cox had been found and was being brought to the police station.
Investigator Murray testified that he met with Ms. Cox and informed her of her
constitutional rights. She agreed to waive her rights and gave a statement. Investigator
Murray described her interview as “forthcoming.” She told him that she had been at
appellant’s house for three days and that appellant had told her he did not like the victim
because of the way the victim spoke to him when they played cards. Ms. Cox elaborated by
saying that the victim called appellant a “bum” because he always needed money. Ms. Cox
told Investigator Murray that appellant said he knew how he could rob the victim. She said
that the victim came to appellant’s house with John Mitchell and that John Mitchell left the
house. Ms. Cox informed Investigator Murray that one to one and a half hours later, she
heard ten thuds. She observed appellant exiting the upstairs room and thought that she saw
the victim’s body on the floor. Appellant told her, “‘It’s done,’” and said that he had killed
the victim by stabbing him. Ms. Cox told Investigator Murray that appellant was acting
strangely and had blood on his hands. She reported that appellant asked her to help him
dispose of the victim’s body but that she refused. She further reported that appellant
suggested he could dispose of the body by either burning it in the fireplace or burying it in
a pile of mulch. Ms. Cox told Investigator Murray that she and appellant smoked crack
cocaine that “she believed [appellant] had taken off of [the victim].” Appellant also gave her
over $100 even though he had not had money earlier in the day. Ms. Cox related to
Investigator Murray that she was eventually able to call a friend to pick her up. She reported
that she told her friend what had happened and that her friend took her to someone else’s
house. Ms. Cox contacted Eugene Mitchell and told him that appellant had killed the victim.
She told Investigator Murray that she had not contacted the police because she was afraid of
appellant. She said that she had not changed clothes since the previous day.
On cross-examination, Investigator Murray testified that the interview with Ms. Cox
was recorded and later transcribed. A copy of the transcription was placed in the police files,
and the recording was placed into evidence. Investigator Murray agreed that Ms. Cox told
him she did not know appellant’s last name. She did not mention John Mitchell at all until
she told Investigator Murray that Mr. Mitchell had taken her car to have its taillight repaired.
She later told him that Mr. Mitchell had arrived at appellant’s house with the victim when
earlier she had said that the victim had been alone. Ms. Cox did not tell Investigator Murray
about smoking crack cocaine with appellant, but she did tell him that she had smoked with
Mr. Mitchell the day before. Investigator Murray agreed that the transcription of the
-13-
interview did not reflect that Ms. Cox told him about smoking crack cocaine with appellant
or his giving her over $100.
Investigator Murray further testified that Investigator Sam Brown had interviewed at
least two members of the Mitchell family, John Mitchell’s father and brother. Investigator
Murray incorporated Investigator Brown’s summary of the interviews into his investigative
action report. He opined that if either of the Mitchells had mentioned that appellant told
them that he did not kill the victim by himself, that information would have been included
in the summary. Likewise, if anyone had said that the murder was the result of a drug deal
gone awry, that statement would have been included in the summary. Investigator Murray
did not have any knowledge of statements made by John Mitchell.
Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,
testified as an expert in forensic and anatomical pathology. She further testified that the
victim’s autopsy in this case was performed by Dr. Sandra Elkins. Dr. Mileusnic-Polchan
said that she reviewed photographs taken during the autopsy and the autopsy report prepared
by Dr. Elkins. Dr. Mileusnic-Polchan opined that the major cause of the victim’s death was
the blunt force trauma injury to his skull and brain; the minor cause of his death was the two
stab wounds to his back; and the manner of his death was homicide. She noted that the
victim received multiple strikes to his head. According to Dr. Mileusnic-Polchan,
photographs introduced through her testimony demonstrated how the crowbar found at the
scene matched the injury pattern. She testified that one of the stab wounds penetrated the
right lung and that the other penetrated the left lung and heart. The knife blade remained in
the stab wound on the victim’s left side. The victim did not have a “classic defense injury,”
indicating that he was not involved in fighting nor was he trying to protect himself, but he
did have one bruise on his right hand. Dr. Mileusnic-Polchan testified that her findings and
conclusions were consistent with the victim’s being stabbed in the back while in a seated
position and then being bludgeoned with a crowbar while lying prone on carpet or a rough
surface.
On cross-examination, Dr. Mileusnic-Polchan testified that she was unable to
determine time of death because the facts necessary to calculate time of death were not
available to her. She further testified that the sharp force and blunt force injuries occurred
near-simultaneously but that she could not say which preceded the other. She agreed that it
was possible that the victim was held by one person while another inflicted the injuries. Dr.
Mileusnic-Polchan opined that any adult, male or female, might have inflicted the stab
wounds but that she believed the head trauma would have been inflicted by a male. She
based her conclusion regarding the head trauma on her personal experiences, having never
seen a female inflict such trauma on a male victim. Following Dr. Mileusnic-Polchan’s
testimony, the State rested its case.
-14-
The defense called KPD Investigator Sam Brown as a witness. He recalled meeting
three black males at appellant’s house when he responded to the crime scene. He further
recalled interviewing all three subjects at the police department and recording their
statements. Investigator Brown testified that Eugene Mitchell, Jr., John Mitchell’s father,
told Investigator Brown that he received a telephone call from “Penny” at “four.”
Investigator Brown opined that Eugene Mitchell, Jr., meant either 4:00 p.m. or 4:00 a.m. the
previous day, considering that his statement was taken at 2:50 a.m. Investigator Brown
agreed that if anyone had told him that appellant had made a statement indicating he had
killed the victim or that the victim was killed as part of a crack cocaine deal, he would have
shared that information with Investigator Murray. Investigator Brown stated that he had
never seen a transcription of the interview he conducted with John Mitchell.
On cross-examination, Investigator Brown testified that if he had seen any blood or
brain matter on any of the Mitchells’ clothes or skin, he would have confiscated their
clothing or processed their skin for evidence. He said that he did not see any such matter on
any of the Mitchells and that the interview room where he met with them was very small.
Investigator Brown testified that Investigator Murray had a respected reputation for truth and
veracity in the community.
Kimberly Armas-Trejo testified that on February 19, 2002, she received four
telephone calls from Penny Cox asking her to pick up Ms. Cox at a house near East Towne
Mall. The telephone calls began around 8:00 p.m. Ms. Armas-Trejo said that she picked up
Ms. Cox at either 10:00 p.m. or 11:00 p.m. Defense counsel showed Ms. Armas-Trejo a
picture of Ms. Cox taken at the police station and asked whether the clothes she was wearing
were the same clothes she was wearing when Ms. Armas-Trejo picked her up. Ms. Armas-
Trejo said that they were not the same clothes. Ms. Armas-Trejo testified that Ms. Cox paid
her $20 for the ride. She further testified that Ms. Cox had more cash than she typically had
and that she had crack cocaine. She said that she did not see any blood on Ms. Cox but that
it was dark. According to Ms. Armas-Trejo, Ms. Cox was acting strangely, so she questioned
her. Ms. Cox told her that the victim was dead and that appellant had “‘beat him in the head
with a hammer and covered him up with a sheet.’” Ms. Armas-Trejo was not willing to take
Ms. Cox to her own home, so she drove Ms. Cox to another person’s house. When Ms.
Armas-Trejo heard on the news that the police were looking for Ms. Cox, she called them
and informed them of Ms. Cox’s location.
On cross-examination, Ms. Armas-Trejo testified that she did not recall telling the
police that Ms. Cox told her that appellant had stabbed the victim, that she had seen him
come downstairs with blood on his hands, or that she was scared of appellant. On redirect
examination, Ms. Armas-Trejo testified that the State had paid for her to travel to Nashville
and for a hotel room but that the State stopped contacting her and did not offer to pay for
-15-
additional nights at the hotel after she gave them the information about which she had just
testified.
Following the close of proof and deliberations, the jury found appellant guilty of three
counts of the lesser included offense of facilitation of first degree murder and one count of
facilitation of especially aggravated robbery. The trial court merged the facilitation of first
murder convictions and sentenced appellant to seventeen years. The trial court also
sentenced appellant to a concurrent sentence of eight years for facilitation of especially
aggravated robbery. This appeal follows.
II. Analysis
A. Motion to Suppress Physical Evidence
Appellant’s first argument centers on what he terms the “extended warrantless ‘crime
scene’ search of his house.” He contends that the search of his home and the seizure of
evidence therein went far beyond the scope of any exigent circumstances justifying the first
responding officer’s entry into his home and that the evidence should have been suppressed.
The State responds that exigent circumstances justified the first officer’s entry, that the entry
of subsequent officers was merely an extension of the first officer’s entry, and that the
seizure of evidence was justified under the plain view doctrine. In the alternative, the State
contends that if this court concludes that the evidence was illegally seized, the inevitable
discovery doctrine would nonetheless allow its admission at trial.
A trial court’s findings of fact at a hearing on a motion to suppress are binding upon
this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). As the trier of fact, the trial court is in a better
position to assess the witnesses’ credibility, determine the weight of the evidence and the
value to be afforded it, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). However, the trial court’s conclusions of law are not binding on this
court. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). Further, the trial court’s
applications of law to the facts are questions of law that we review de novo. State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000). On appeal, the prevailing party is entitled to the strongest
legitimate view of the evidence and all reasonable inferences drawn therefrom. State v.
Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The defendant bears the burden of establishing that
the evidence contained in the record preponderates against the trial court’s findings of fact.
Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).
At a hearing on a motion to suppress evidence recovered as a result of a warrantless
search, the State must prove that the search was reasonable. State v. Coulter, 67 S.W.3d 3,
-16-
41-42 (Tenn. Crim. App. 2001). To carry its burden, the State must prove that law
enforcement conducted the warrantless search or seizure pursuant to one of the
narrowly-defined exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215,
218 (Tenn. 2000) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). Our supreme
court has held:
[U]nder both the federal constitution and our state constitution, a search
without a warrant is presumptively unreasonable, and any evidence obtained
pursuant to such a search is subject to suppression unless the [S]tate
demonstrates that the search was conducted under one of the narrowly defined
exceptions to the warrant requirement. Moreover, Tennessee has approved of
and adopted exceptions to the requirement of obtaining a valid search warrant,
including search incident to arrest, plain view, stop and frisk, hot pursuit,
search under exigent circumstances, and others.
State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005) (internal citations omitted).
Exigent circumstances exist: “‘(1) when officers are in ‘hot pursuit’ of a fleeing
suspect; (2) when the suspect presents an immediate threat to the arresting officers or the
public; or (3) when immediate police action is necessary to prevent the destruction of vital
evidence or thwart the escape of known criminals.’” State v. Adams, 238 S.W.3d 313, 321
(Tenn. Crim. App. 2005) (quoting State v. Steven Lloyd Givens, No. M2001-00021-CCA-R3-
CD, 2001 WL 1517033, at *3 (Tenn. Crim. App. Nov. 29, 2001)). In State v. Meeks, 262
S.W.3d 710, 723 (Tenn. 2008), our supreme court added an additional situation, “to render
emergency aid to an injured person or to protect a person from imminent injury,” to the list
of circumstances that would establish exigent circumstances. The mere existence of one of
these circumstances does not, in and of itself, validate a warrantless search; the State must
also show that “‘the exigencies of the situation made the search imperative.’” Yeargan, 958
S.W.2d at 635 (quoting State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996)). The question
of whether the exigent circumstances were sufficient to justify a warrantless search is a
mixed question of law and fact that we review de novo. Meeks, 262 S.W.3d at 722.
The following guidance from our supreme court is instructive on this issue:
[I]n assessing the constitutionality of a warrantless search, the inquiry is
whether the circumstances give rise to an objectively reasonable belief that
there was a compelling need to act and insufficient time to obtain a warrant.
The exigency of the circumstances is evaluated based upon the totality of the
circumstances known to the governmental actor at the time of the entry. Mere
speculation is inadequate; rather, the State must rely upon specific and
-17-
articulable facts and the reasonable inferences drawn from them. The
circumstances are viewed from an objective perspective; the governmental
actor’s subjective intent is irrelevant. The manner and the scope of the search
must be reasonably attuned to the exigent circumstances that justified the
warrantless search, or the search will exceed the bounds authorized by
exigency alone.
Id. at 723-24.
At the suppression hearing in this case, Officer Shaffer testified that he was
responding to an emergency call that was originally reported as a shooting. When he arrived
at appellant’s house , he was confronted by three frantic men, the Mitchells, who would only
say, “‘He’s inside.’” Officer Shaffer then entered the house and found appellant in the living
room, bleeding. By that time, other officers were already arriving. The Mitchells directed
Officer Shaffer to the upstairs room, where he discovered the victim’s body. Officer Shaffer
returned to the lower floor, and soon thereafter, the crime scene technicians began processing
the scene. According to the testimony at the suppression hearing, the emergency call was
received at 1:21 a.m., Officer Shaffer arrived at 1:23 a.m., and the first crime scene
technician arrived at 1:39 a.m. The victim’s body was removed from the scene at either 5:00
or 5:30 a.m.
From this evidence, we conclude that Officer Shaffer’s entry and search of appellant’s
house was justified by exigent circumstances. He was responding to an emergency call, and
as the Mitchells were clearly not injured and were directing him inside, he had to enter the
house “to render emergency aid to an injured person or to protect a person from imminent
injury.” Meeks, 262 S.W.3d at 723. Officer Shaffer immediately encountered an injured
person, appellant, but the Mitchells insisted that “he” was upstairs. Based on this
information and the condition of appellant, who did not have injuries consistent with what
was reported in the emergency call, Officer Shaffer was justified in entering the upstairs
bedroom, where he discovered the victim.
The question remains whether the subsequent officers were likewise justified in
entering the house and whether the evidence seized was justifiable. Appellant argues that
no exception to the warrant requirement applied to the officers, particularly the crime scene
technicians, arriving after Officer Shaffer. He further argues that the processing of the crime
scene, including taking video and photographs, and the seizure of evidence were outside the
scope of the exigent circumstances search. He contends that even if this court were to apply
the plain view doctrine to the seizure of the evidence, some of the evidence was not in plain
view and should have been suppressed. In particular, appellant protests the seizure of the
knife handle, the blue sweatshirt, and the gold nugget ring.
-18-
Appellant’s argument relies in part on the United States Supreme Court’s rulings that
a homicide does not justify a warrantless search of a residence. The United States Supreme
Court in Mincey v. Arizona declined to recognize a “murder scene exception” to the warrant
requirement. 437 U.S. 385, 395 (1978); see also Flippo v. West Virginia, 528 U.S. 11, 14
(1999); Thompson v. Louisiana, 469 U.S. 17, 21 (1984) (per curiam). However, the Court
also acknowledged the continuing viability of the exigent circumstances exception to the
warrant requirement and the application of the plain view doctrine to the seizure of evidence
discovered in the course of law enforcement officers’ “legitimate emergency activities.” See
Mincey, 437 U.S. at 392-93 (citing Michigan v. Tyler, 436 U.S. 499, 509-10 (1978)).
Nonetheless, the Court stated that “a warrantless search must be ‘strictly circumscribed by
the exigencies which justify its initiation.’” Id. at 393 (quoting Terry v. Ohio, 392 U.S. 1, 26
(1968)).
This court has previously encountered very similar circumstances and arguments as
those presented herein. For example, in Coulter, the defendant told the police that he had
killed his wife. State v. Coulter, 67 S.W.3d 3, 16 (Tenn. Crim. App. 2001). One officer
handcuffed the defendant, drove him to the defendant’s house, entered the house, and
discovered the victim’s body lying on a bed. Id. Another officer was dispatched to the
defendant’s house and collected evidence, including the murder weapon found on the kitchen
table and the bed linen. Id. at 16-17. After paramedics removed the victim’s body, the police
discovered a spent bullet in the bed’s box springs. Id. at 17. In addition, a later-arriving
officer photographed the crime scene. Id. On appeal, the defendant contested the officers’
warrantless search of his house and the seizure of evidence not in plain view, particularly the
spent bullet. Id. at 40. This court ruled that the initial entry was justified under the exigent
circumstances exception to the warrant requirement, that the collection of the murder weapon
and bed linen were justified under the plain view doctrine, and that these doctrines allowed
the responding officers to photograph the scene. Id. at 43 (citing Bills v. Aseltine, 958 F.2d
697, 707 (6th Cir.1992)). Furthermore, this court concluded, after surveying decisions from
other states, that the entry of the later-arriving officers presented no Fourth Amendment issue
under the circumstances of the case. Id. at 43-45. In particular, this court cited the following
rationale:
“[W]hen a law enforcement officer enters private premises in response to a call
for help, and during the course of responding to the emergency observes but
does not take into custody evidence in plain view, a subsequent entry shortly
thereafter, by detectives whose duty it is to process evidence, constitutes a
mere continuation of the original entry. Under such circumstances, it is
permissible for the detectives to [seize,] photograph and take measurements
[of], without a search warrant, . . . evidence which was in the plain view of the
initial responding officers.”
-19-
Id. at 44 (quoting State v. Magnano, 528 A.2d 760, 764 (1987)) (second and third alterations
in Coulter). The court also cited the following from the North Carolina Supreme Court:
“[W]hen a law enforcement officer enters private premises in response to a call
for help and thereby comes upon what reasonably appears to be the scene of
a crime, and secures the crime scene from persons other than law enforcement
officers by appropriate means, all property within the crime scene in plain
view which the officer has probable cause to associate with criminal activity
is thereby lawfully seized within the meaning of the fourth amendment.
Officers arriving at the crime scene thereafter and while it is still secured can
examine and remove property in plain view without a search warrant.”
Id. at 44-45 (quoting State v. Jolley, 321 S.E.2d 883, 886 (1984)). Finally, this court
determined that the officers were justified in retrieving the bullet from the box springs
because the bullet hole was in plain view once the victim’s body was removed and the
defendant could have no legitimate expectation of privacy in the bullet. Id. at 45 (citations
omitted).
Under the circumstances of this case, we conclude that the entry of officers arriving
subsequent to Officer Shaffer was a continuation of his original entry. See Coulter, 67
S.W.3d at 45. We note that all of the officers, detectives, and crime scene technicians were
essentially responding at the same time. Officer Shaffer only arrived as quickly as he did
because he was already in the area.
Furthermore, under Mincey, Hicks, and Coulter, evidence meeting the criteria under
the plain view doctrine was subject to seizure. For the plain view doctrine to apply, the
following requirements must be met: “(1) the officer did not violate constitutional mandates
in arriving at the location from which the evidence could plainly be seen; (2) the officer had
a lawful right of access to the evidence; and (3) the incriminating character of the evidence
was ‘immediately apparent . . . .’” Coulter, 67 S.W.3d at 43 (citations omitted). We have
already determined that the KPD did not violate constitutional mandates by entering
appellant’s house. The majority of the evidence seized was clearly in plain view, in
particular the crowbar and the crack cocaine, and the incriminating nature of the evidence
was immediately apparent. Indeed, the only seized items that appellant claims could not be
plainly seen were the gold ring from the bathroom and items found under a chair in the
upstairs bedroom — the knife handle and a sweatshirt. Based on the testimony and
photographs, we agree that these three items either could not have been plainly seen or were
outside the scope of the initial, exigent circumstances search. The bathroom where the ring
was found was not within the scope of Officer Shaffer’s initial search, and there was no
evidence presented that an officer entered that room looking for another victim or suspect.
-20-
See Hicks, 480 U.S. at 324-25 (“[T]aking action, unrelated to the objectives of the authorized
intrusion, which exposed to view concealed portions of the apartment or its contents, did
produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that
validated the entry.”) As for the sweatshirt, the testimony and photographs are unclear with
regard to whether any officers could plainly see it. Ms. Gangwer testified that the sweatshirt
was on top of an overturned chair but was possibly underneath other items. Regarding the
knife handle, Ms. Gangwer testified that the officers did not know it was there until they
began processing the scene. Therefore, we conclude that these items were not in plain view
and thus were seized in violation of appellant’s constitutional rights.
However, the State contends that the evidence not in plain view would have been
inevitably discovered. “Under the inevitable discovery doctrine, illegally obtained evidence
is admissible if the evidence would have otherwise been discovered by lawful means. Proof
of inevitable discovery ‘involves no speculative elements but focuses on demonstrated
historical facts capable of ready verification or impeachment.’” State v. Cothran, 115
S.W.3d 513, 525 (Tenn. Crim. App. 2003) (quoting Nix v. Williams, 467 U.S. 431, 444
(1984)) (internal citations omitted).
This court’s application of the inevitable discovery doctrine in Brock is instructive for
this case. See State v. Brock, 327 S.W.3d 645, 686 (Tenn. Crim. App. 2009). In Brock, the
defendant’s truck was illegally seized and searched prior to defendant’s confession. Id.
However, this court held that after defendant’s confession, the police would have had
probable cause to seize and search the truck; therefore, the inevitable discovery doctrine
operated to admit the illegally seized evidence from the truck. Id. This court also reasoned
that “[t]his same analysis might also be said to apply to the search of [the defendant’s]
residence. It is indeed inevitable that a known homicide scene with a body present would
eventually have been searched by lawful means.” Id. at 686 n.2.
In this case, the police likewise had “a known homicide scene with a body present.”
It is clear that the police had sufficient probable cause to support a search warrant, had they
sought to obtain one. See State v. Joshua Eugene Anderson, No. E2005-02660-CCA-R3-CD,
2007 WL 1958641, at *5 (Tenn. Crim. App. July 6, 2007); State v. Rickie J. Stallings, No.
E2005-00239-CCA-R3-CD, 2006 WL 2061736, at *19 (Tenn. Crim. App. July 26, 2006).
Therefore, we conclude that the inevitable discovery doctrine applies to the admission of the
knife handle, sweatshirt, and ring. See Brock, 327 S.W.3d at 686; Joshua Eugene Anderson,
2007 WL 1958641, at *5; Rickie J. Stallings, 2006 WL 2061736, at *19. Consequently, any
error in the trial court’s suppression ruling is harmless beyond a reasonable doubt. See Rickie
J. Stallings, 2006 WL 2061736, at *19.
-21-
B. Admission of Crime Scene Photographs and Video
Appellant contends that the trial court erred by admitting photographs of the crime
scene and video of the crime scene. In particular, he argues that both the photographs and
video should have been excluded as fruits of an illegal search and that both were prejudicial
and inflammatory. Regarding the video only, he argues that it was duplicative. The State
responds that appellant has waived this issue.
Tennessee Rules of Evidence 401, 402, and 403 govern the admissibility of the
photographs in this case. See State v. Banks, 564 S.W.2d 947, 949-51 (Tenn. 1978). First,
a witness with knowledge of the facts must verify and authenticate a photograph before it can
be admitted into evidence. Id. at 949; see also Tenn. R. Evid. 901. Next, a trial court must
first determine whether the photograph is relevant. Id.; see Tenn. R. Evid. 401. Irrelevant
evidence is inadmissible. Tenn. R. Evid. 402. If the evidence has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence,” it is relevant. Tenn. R. Evid. 401.
Once it determines that a photograph is relevant, the trial court must then determine whether
the probative value of the photograph is substantially outweighed by the danger of unfair
prejudice. See Tenn. R. Evid. 403; Banks, 564 S.W.2d at 950-51. “Unfair prejudice” is
“‘[a]n undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” Banks, 564 S.W.2d at 951 (quoting Fed. R. Evid. 403
advisory committee’s note). Furthermore,
A trial court should consider: the accuracy and clarity of the picture and its
value as evidence; whether the picture depicts the body as it was found; the
adequacy of testimonial evidence in relating the facts to the jury; and the need
for the evidence to establish a prima facie case of guilt or to rebut the
defendant’s contentions.
State v. Leach, 148 S.W.3d 42, app. at 63 (Tenn. 2004) (citing Banks, 564 S.W.2d at 951).
The decision whether to admit the photographs rests within the trial court’s sound
discretion, and we will not reverse the trial court’s determination absent a clear showing of
an abuse of that discretion. Banks, 564 S.W.2d at 949; see also State v. Dubose, 953 S.W.2d
649, 653 (Tenn. 1997); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Tennessee
courts follow a policy of liberality in the admission of photographs in both civil and criminal
cases. See Banks, 564 S.W.2d at 949.
Regarding appellant’s first argument that the photographs and video were products
of an illegal search, we have already determined that the police were allowed to enter the
-22-
home due to exigent circumstances and seize evidence in plain view. See supra Part II A.
As a corollary to this ruling and based upon the rationale in Coulter, we conclude that the
police were allowed to photograph and videotape the crime scene as it appeared when they
arrived. See Coulter, 67 S.W.3d at 43. However, many of the photographs depict police
investigative procedures, such as evidence markers, or objects after the police had moved
them. Again, we have determined that any evidence not in plain view would have been
inevitably seized pursuant to a warrant in a case such as this; by the same reasoning, we
conclude that the photographs depicting the police investigation would have been inevitably
taken. See Brock, 327 S.W.3d at 686 & n.2.
Appellant also argues that the crime scene photographs were inflammatory due to the
presence of police, depiction of evidence markers, graphic nature of the victim’s head
trauma, and alteration of the original crime scene. However, the State argues that appellant
has waived this argument due to failure to object at the proper time. The State’s argument
is well-taken with regard to all photographs with one exception.
The record shows that appellant specifically objected to exhibits 116, 125-127, and
132-134. Exhibit 116 depicted crime scene technician Gerald Smith holding a measuring
tool next to the victim’s head trauma. At trial, appellant objected that the photograph was
“posed” and that other photographs could show the victim’s injury without the measuring
tool. The trial court ruled that the photograph’s probative value was not substantially
outweighed by the danger of unfair prejudice.2 Based on the record before us, we conclude
that the trial court did not abuse its discretion in admitting the photograph. Banks, 564
S.W.2d at 949. Issues at trial included whether a man or woman could have exerted the force
required to injure the victim and the credibility of the police investigation; thus, there was
a “need for the evidence to establish a prima facie case of guilt or to rebut the defendant’s
contentions.” Id. at 951. The photograph shows the extent of the victim’s injury, and by
comparing it with autopsy photographs, the State was able to show that the condition of the
body did not change. Appellant has not established that the probative value of exhibit 116
was substantially outweighed by the danger of unfair prejudice.
With regard to 125-127 and 132-134, the trial court reserved its ruling until a witness
could lay a proper foundation with regard to what each photograph depicted. When the State
moved to admit the photographs during Gerald Smith’s testimony, appellant did not object.
Appellant’s failure to object prevented the trial court from making a ruling on the
admissibility of the evidence. Therefore, appellant has waived his argument regarding
2
The trial court actually misspoke during its ruling when defense counsel interrupted by saying that
the probative value was not substantially outweighed by its probative value. The trial court’s intention in
its ruling, however, was clear.
-23-
exhibits 125-127, 132-134, and any other exhibit to which he did not specifically object. See
Tenn. R. App. P. 36(a). (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”)
Appellant also argues that the crime scene videotape was admitted in error. He
complains that it was taken without a warrant and that it was inflammatory and duplicative.
Again, our ruling regarding the warrantless search includes the videotaping of the crime
scene; therefore, appellant’s contention is without merit. As for the inflammatory and
duplicative nature of the videotape, the appellant only objected “[b]ased on previous rulings.”
The State argues that this was a “blanket objection” and that this court should regard it as
waiver of the issue. This court recently made the following ruling with regard to a similar
objection:
[W]e conclude that such a blanket objection is essentially no different than no
objection being made. Perhaps the basis of the objection was clear to the trial
court for reasons that are not apparent from the print of the transcript. But a
reviewing court has no way to guess as to what was the basis of the objection.
State v. Neil Vader, No. M2011-02394-CCA-R3-CD, 2013 WL 1279196, at *5 (Tenn. Crim.
App. Mar. 28, 2013), no perm. app. filed. After carefully reviewing the record, we cannot
discern exactly on which previous rulings appellant was relying when he objected to the
introduction of the crime scene video. In addition, there does not appear to be an objection
on the basis of the video being duplicative, which is the primary focus of appellant’s
argument on appeal. Therefore, we conclude that appellant has waived our review of this
issue.
C. Warrantless Withdrawal of Appellant’s Blood
Appellant contends that his blood was drawn without his consent and without a search
warrant. He argues that any evidence of the illegally obtained blood samples should have
been suppressed. The State concedes that appellant’s blood was drawn illegally but contends
that the error was harmless beyond a reasonable doubt. We agree with the State.
At the motion to suppress hearing in this case, Officer Shaffer testified that he
requested that the hospital staff draw appellant’s blood. His reasoning was that the police
needed the blood to compare with the blood found at the scene. The State argued that the
metabolization of the cocaine in appellant’s system was an exigent circumstance that justified
the warrantless drawing of appellant’s blood. The trial court, however, ruled that the blood
-24-
evidence was admissible because Officer Shaffer had probable cause to believe that appellant
had committed a crime.
Because this issue centers on a legal conclusion rather than factual findings, we
review the trial court’s decision de novo. Randolph, 74 S.W.3d at 333. It has long been clear
that the withdrawal of a person’s blood is a search subject to the constraints of the Fourth
Amendment. See Missouri v. McNeely, 569 U.S. ---, 133 S. Ct. 1552, 1558 (2013);
Schmerber v. California, 384 U.S. 757, 767-72 (1966); State v. Blackwood, 713 S.W.2d 677,
679 (Tenn. Crim. App. 1986). In this case, there was no warrant obtained prior to the
withdrawal of appellant’s blood in the early morning hours of February 20, 2002. Moreover,
there has been no evidence presented that exigent circumstances or any other exception to
the Fourth Amendment’s warrant requirement applied to justify this warrantless search.3
While it might be true that Officer Shaffer had probable cause to believe appellant had
committed murder, having probable cause is not an exception to the warrant requirement but
rather a prerequisite. Thus, it was error for the trial court to admit evidence of the blood
samples taken without a warrant.
Earlier in this opinion, we applied the inevitable discovery doctrine in this case to
admit illegally obtained evidence; however, that doctrine cannot be applied in this situation.
The only evidence at trial that stemmed from the inadmissible blood samples was the
testimony that appellant had cocaine in his system. TBI forensic scientist Melanie Carlisle
testified about how quickly cocaine metabolizes. Based on her testimony, we cannot apply
the inevitable discovery doctrine to cure the inadmissibility of the blood evidence because
it is unknown whether Ms. Carlisle would have found the cocaine in appellant’s blood had
she tested blood acquired pursuant to a warrant, which would have taken time to obtain,
rather than test the illegally acquired blood. Therefore, appellant’s blood evidence and the
testimony regarding the blood tests should have been excluded.
However, the State contends that the error was harmless beyond a reasonable doubt,
and we agree. “If a constitutional error is not structural, then it is subject to harmless error
analysis, and the proper test is whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” State v. Allen, 69 S.W.3d 181, 190
3
At trial, the prosecution argued – without support from Officer Shaffer’s testimony – that the
metabolization of cocaine in appellant’s bloodstream was an exigent circumstance justifying the search.
However, this was not the rationale employed by the trial court in its ruling. In addition, the United States
Supreme Court in McNeely declined to create a per se rule that the metabolization of alcohol in the
bloodstream is an exigent circumstance justifying a warrantless search and confirmed that the existence of
an exigent circumstance must be decided on a case-by-case basis. 569 U.S. ---, 133 S. Ct. at 1560. Again,
Officer Shaffer’s testimony presented no evidence of an exigent circumstance or any knowledge that drugs
were involved in this case.
-25-
(Tenn. 2002) (internal quotation marks omitted) (citing Neder v. United States, 527 U.S. 1,
15 (1999)). The State argues that the blood test results were not key to the State’s case. At
best, the blood test results corroborated Penny Cox’s testimony that she and appellant
smoked crack cocaine after he killed the victim. However, Ms. Cox’s testimony was
thoroughly impeached by the defense, and it appears that the jury did not find her credible
considering they found appellant guilty of facilitation of first degree murder and facilitation
of especially aggravated robbery rather than the charged offenses of premeditated murder,
felony murder, and aggravated robbery. Furthermore, we note that both Ms. Cox and John
Mitchell testified about appellant’s habitual use of cocaine. The State did not need the blood
test results to advance its theory that appellant robbed the victim when Mr. Mitchell testified
that the victim had more cocaine on his person prior to his death than after, had a large
amount of cash that was missing, and was missing a gold ring. Therefore, we conclude
beyond a reasonable doubt that the error in the admission of the blood evidence did not
contribute to the verdict obtained and was thus harmless beyond a reasonable doubt.
Appellant is without relief as to this issue.
D. Prior Bad Act Evidence
Appellant argues in the alternative that the admission of the blood test results showing
that appellant’s blood was positive for cocaine was error under Tennessee Rule of Evidence
404(b).4 The State failed to address the issue in their brief. However, at trial, the State
advanced the argument that the blood test results corroborated various witnesses’ testimonies
and supported their theory of appellant’s motive. The trial court allowed TBI forensic
scientist Melanie Carlisle to testify about the results, provided that the State presented
evidence linking appellant’s cocaine use to his motive in committing the offenses.
Rule 404(b) provides:
Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in
conformity with the character trait. It may, however, be admissible for other
purposes. The conditions which must be satisfied before allowing such
evidence are:
(1) The court upon request must hold a hearing outside the jury’s presence;
4
The heading in appellant’s brief also posits that the trial court erred by admitting evidence of
appellant’s drug use through Penny Cox’s testimony; however, he did not support this contention with
citations to the record or argument in the body of his brief. Therefore, we deem that he has waived plenary
review of this issue on appeal. See Tenn. Ct. Crim. App. R. 10(b).
-26-
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the
record the material issue, the ruling, and the reasons for admitting the
evidence; and
(3) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b). Possible “other purposes” for which evidence of other crimes,
wrongs or acts may be admitted include identity (including motive and common scheme or
plan), intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b), Advisory Comm’n
Commt.
Thus, to satisfy the requirement of relevancy, the first inquiry by the trial court must
be whether “‘a material issue exists other than conduct conforming with a character trait.’”
State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996) (quoting Tenn. R. Evid. 404(b)). Upon
the court’s satisfaction of the existence of a material issue, the trial court must then weigh
the proffered evidence to determine whether the probative value outweighs the danger of
unfair prejudice to the defendant. McCary, 922 S.W.2d at 514 (citing Tenn. R. Evid.
404(b)). The trial court must finally find that appellant committed the other crimes, wrongs,
or acts by clear and convincing evidence. Id. (citations omitted).
When it substantially complies with the procedural requirements of Rule 404(b), the
trial court’s determination of admissibility is entitled to deference on appeal. State v. Gilley,
297 S.W.3d 739, 758 (Tenn. 2008); see State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
In reviewing a trial court’s ruling on 404(b) evidence, an appellate court may not disturb the
lower court’s ruling absent an abuse of discretion. Gilley, 297 S.W.3d at 758; State v.
Thacker, 164 S.W.3d 208, 240 (Tenn. 2005).
The trial court in this case did not substantially comply with the procedural
requirements because it did not state on the record what material issue existed nor did it make
a finding that the probative value was not outweighed by the danger of unfair prejudice.
Nonetheless, we conclude that it was not error under Rule 404(b) because the State presented
a material issue — motive — that it later supported with additional testimony. The trial court
tacitly accepted the State’s argument and allowed the evidence to be admitted. Likewise, we
accept the State’s argument that the evidence was relevant to prove motive, although, as
previously stated, it was not essential to proving motive. There was plentiful other evidence
admitted regarding appellant’s drug use; thus, the danger of unfair prejudice was minimal in
comparison to the probative value. Therefore, the admission of the evidence was not error
under Rule 404(b).
-27-
E. Destruction of Evidence
On appeal, appellant presents three issues stemming from the destruction of the
following evidence: the physical evidence, the 9-1-1 recording, and John Mitchell’s
statement to police.
1. Physical Evidence
Prior to trial, all of the physical evidence in appellant’s case, including the murder
weapons, clothing worn by appellant and the victim, and the gold ring, disappeared. The
record indicates that the evidence was stored in an off-site facility to which only a few
officers had access. The evidence was placed near the door of the facility for viewing by the
attorneys, but the attorneys did not come at the scheduled time due to a continuance. Soon
thereafter, the evidence disappeared. The State speculated that it had been accidently
destroyed along with other evidence that had been marked for destruction pursuant to court
order. The trial court ruled that the destruction was caused by simple negligence, that the
evidence had some exculpatory value, and that the secondary evidence was reliable and
would allow appellant to present a defense. Appellant now claims that this ruling was error.
In Ferguson, our supreme court considered the appropriate “consequences that flow
from the State’s loss or destruction of evidence which the accused contends would be
exculpatory.” State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999). Our supreme court
exercised its authority “to expand the minimum level of protection mandated by the federal
constitution,” Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992), by rejecting the United
States Supreme Court’s “bad faith” standard in favor of a test that is less onerous on a
criminal defendant. Ferguson, 2 S.W.3d at 916; see generally Arizona v. Youngblood, 488
U.S. 51 (1988). The court, instead, “‘promulgate[d] . . . an analysis in which the critical
inquiry is: Whether a trial, conducted without the [lost or] destroyed evidence, would be
fundamentally fair?’” Coulter, 67 S.W.3d at 54 (quoting Ferguson, 2 S.W.3d at 914). The
Ferguson analysis requires a court to first determine “whether the State had a duty to
preserve the evidence.” State v. Merriman, 410 S.W.3d 779, 785 (Tenn. 2013). The State
has a general duty to preserve evidence subject to discovery and inspection in accordance
with Tennessee Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963).
Id. However, “the State’s duty to preserve evidence is limited to constitutionally material
evidence described as ‘evidence that might be expected to play a significant role in the
suspect’s defense.’” Id. (quoting Ferguson, 2 S.W.3d at 917). Our supreme court held that
to meet this materiality standard, “the evidence must potentially possess exculpatory value
and be of such a nature that the defendant would be unable to obtain comparable evidence
by other reasonably available means.” Id. (citing Ferguson, 2 S.W.3d at 915, 918).
-28-
If the proof demonstrates that the State had a duty to preserve the evidence and that
the State failed in that duty, the analysis then shifts to a consideration of the following factors
in deciding the consequences of the State’s breach:
(1) [t]he degree of negligence involved;
(2) [t]he significance of the destroyed evidence, considered in light of the
probative value and reliability of secondary or substitute evidence that
remains available; and
(3) [t]he sufficiency of the other evidence used at trial to support the
conviction.
Id. (quoting Ferguson, 2 S.W.3d at 917) (alteration in original).
If, after due consideration of the three factors, the trial court concludes that a trial
without the missing or destroyed evidence would not be fundamentally fair, the court may
order dismissal of the charges. Ferguson, 2 S.W.2d at 917. “Dismissal is, however, but one
of the trial judge’s options.” Id. The trial court may craft a special jury instruction or grant
other appropriate remedies. Id. This court reviews the trial court’s decision de novo, with
deference to the trial court’s findings of fact unless the evidence preponderates against the
findings. See Merriman, 410 S.W.3d at 791. Any remedy crafted by the trial court is
reviewed under an abuse of discretion standard. Id. at 791-92.
All of the physical evidence in this case was destroyed, from the murder weapons to
appellant’s fingernail clippings. Appellant contends that the evidence would have played a
significant role in his defense because the exculpatory nature of the evidence was apparent
and because there was no comparable evidence. Clearly, there was no comparable evidence
to be had that could replace any of the evidence destroyed. However, the exculpatory nature
of the evidence was only speculative. All of the items had already been tested by the State,
but it appears that the defense had never even inspected the evidence — despite having many
years in which to do so. Perhaps appellant might have recovered fingerprints where the
State’s experts were unable to do so, or maybe he would have been able to cross-examine the
State’s witnesses more exactly about their testing methods and the chain of custody.
Nonetheless, due to the bizarre circumstance that all of the physical evidence was destroyed,
appellant’s argument that the evidence would have played a significant role in his defense
is well-taken because while the evidence “was probably of marginal exculpatory value, it was
at least material to the preparation of the defendant’s defense.” See Ferguson, 2 S.W.3d at
918 (internal quotation marks omitted). Therefore, the State had a duty to preserve the
evidence and breached that duty.
-29-
The trial court found that the destruction of the evidence was accidental, and as no
evidence was presented that preponderates against that finding, we defer to the trial court’s
finding. Thus, because the evidence was destroyed accidentally, we agree with the trial court
that the destruction was due to simple negligence.
The next factor to consider is the significance of the evidence in light of the probative
value and the available secondary or substitute evidence. In this case, our review of the
record indicates that the probative value of the evidence weighs more in favor of the State,
considering the impact on the jury of having the actual murder weapons and bloody clothing
presented rather than photographs. Photographs of the majority of the destroyed evidence
were available and were used at trial. Appellant appears to have been able to mount his
defense effectively despite having to use photographs rather than physical evidence,
considering he was convicted of lesser included offenses.
We must also consider the sufficiency of the other evidence presented at trial. The
most incriminating evidence was the testimony of Penny Cox. John Mitchell’s testimony was
also significant considering his statement that appellant allegedly confessed to him that he
did not “do it” — the killing of the victim — alone, and his observation that the victim had
more cocaine and cash on him prior to his death than at his autopsy. The State also presented
laboratory reports showing appellant had the victim’s blood on his clothing and hands. Thus,
there was sufficient other evidence to convict appellant of the offenses.
Taking all of these factors into consideration, it is clear that appellant “was not
hindered in the full and complete exposition of his theory to the jury.” See Ferguson, 2
S.W.3d at 918. We conclude that appellant’s trial was fundamentally fair, and his argument
to the contrary is without merit.
2. 9-1-1 Log
On appeal, appellant presents two arguments regarding whether the trial court erred
by admitting the log of the 9-1-1 call when the original recording of the call had been
destroyed pursuant to the procedure of the Knox County Emergency Communications
District. First, he contends that under Ferguson, the destruction of the recording rendered
it plain error for the trial court to admit the 9-1-1 log. Secondly, appellant argues that the log
contained hearsay statements that did not meet the business records or public records hearsay
exceptions. See Tenn. R. Evid. 803(6), 803(8). The State responds that appellant waived the
Ferguson argument by not addressing it below and that the entire 9-1-1 log qualified as a
business record, rendering it admissible in toto under the business records hearsay exception.
We agree that appellant waived the Ferguson argument; however, the admission of hearsay
statements within the 9-1-1 log was harmless error.
-30-
Appellant argues for the first time on appeal that the Ferguson analysis should apply
to the destruction of the 9-1-1 recording, with the remedy being the exclusion of the 9-1-1
log. However, appellant did not raise this issue below prior to trial, during trial, or in his
motion for new trial.5 He contends that this court should review the matter for plain error.
Our supreme court formally adopted this court’s Adkisson test for reviewing claims
of plain error:
The Court of Criminal Appeals has developed five factors to consider when
deciding whether an error constitutes “plain error” in the absence of an
objection at trial: “(a) the record must clearly establish what occurred in the
trial court; (b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is ‘necessary to do substantial justice.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). To rise to the level of “plain error,” an error “‘must [have
been] of such a great magnitude that it probably changed the outcome of the trial.’” Adkisson,
899 S.W.2d at 642 (quoting United State v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)). All
five factors must be established by the record before a court will find plain error. Smith, 24
S.W.3d at 282. Complete consideration of all the factors is not necessary when clearly at
least one of the factors cannot be established by the record.
Here, appellant has not established that consideration of the error is necessary to do
substantial justice. He claims that certain evidence — his statement to Mr. Mitchell that he
did not commit the murder by himself — would have been heard on the 9-1-1 recording but
was not included in the 9-1-1 log; consequently, he claims that under Ferguson, the 9-1-1 log
should have been excluded as a remedy for the State’s failure to preserve the 9-1-1 recording.
However, evidence of appellant’s statement was presented to the jury through Mr. Mitchell’s
testimony, and there is no indication other than Mr. Mitchell’s speculation that appellant’s
statement was in fact recorded on the 9-1-1 call. Therefore, we decline to apply plain error
review and conclude that appellant has waived plenary review on appeal. See Tenn. R. App.
P. 36(a)-(b).
5
In his reply brief, appellant claims that he should be allowed to present his Ferguson argument for
the first time on appeal. However, in Merriman, the supreme court repeatedly referred to the trial court
performing the Ferguson analysis. See Merriman, 410 S.W.3d at 786-90. Contrary to appellant’s assertion,
the supreme court’s ruling that this court should review a trial court’s Ferguson analysis de novo does not
relieve appellant of the responsibility of raising the issue at the trial level. See id. at 790-92.
-31-
However, appellant’s argument regarding hearsay has some merit. Appellant contends
that the trial court erred by admitting the entirety of the 9-1-1 log without determining
whether each statement therein met a hearsay exception. At trial, he particularly disputed the
log’s documentation of the search for Penny Cox by stating what the various police officers
were doing to locate her.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). Generally, hearsay is not admissible at trial unless it falls within an
exception to the exclusionary rule. Tenn. R. Evid. 802. We are aware of the disagreement
among panels of this court regarding the appropriate standard of review of the admissibility
of hearsay evidence;6 however, for purposes of this case, the result is the same whether
reviewed for abuse of discretion or de novo.
In the trial court, the State moved for admission of the 9-1-1 log in its entirety under
both the business records exception, Tenn. R. Evid. 803(6), and the public records exception,
Tenn. R. Evid. 803(8). Tennessee Rule of Evidence 803(6) provides:
A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses made at or near the time by or from
information transmitted by a person with knowledge and a business duty to
record or transmit if kept in the course of a regularly conducted business
activity and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness or by certification that
complies with Rule 902(11) or a statute permitting certification, unless the
source of information or the method or circumstances of preparation indicate
lack of trustworthiness. The term “business” as used in this paragraph
6
See State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008) (in considering an issue involving hearsay,
holding that “questions concerning the admissibility of evidence rest within the sound discretion of the trial
court, and this Court will not interfere in the absence of abuse appearing on the face of the record”); Pylant
v. State, 263 S.W.3d 864, 871 n.26 (Tenn. 2008) (maintaining that the standard of review for hearsay issues
is abuse of discretion); Willie Perry, Jr. v. State, No. W2011-01818-CCA-R3-PC, 2012 WL 2849510, at *3
(Tenn. Crim. App. July 11, 2012), perm. app. denied (Tenn. 2012), (stating that standard of review for
admissibility of evidence is abuse of discretion). But see State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim.
App. 2008) (stating that whether a statement is offered to prove the truth of the matter asserted is “necessarily
a question of law” and is not subject to review under abuse of discretion standard); State v. Schiefelbein, 230
S.W.3d 88, 128 (Tenn. Crim. App. 2007) (holding that appellate review of hearsay issues is de novo with
no presumption of correctness); Willie Perry, Jr., 2012 WL 2849510, at *7 (Bivins, J., concurring) (applying
de novo standard of review to hearsay issues).
-32-
includes business, institution, profession, occupation, and calling of every
kind, whether or not conducted for profit.
The public records exception, Rule 803(6), states:
Unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness, records, reports, statements, or
data compilations in any form of public offices or agencies setting forth the
activities of the office or agency or matters observed pursuant to a duty
imposed by law as to which matters there was a duty to report, excluding,
however, matters observed by police officers and other law enforcement
personnel.
The admissibility of certain types of documents under Rule 803(6) “does not mean
that every entry contained in the documents can be admitted into evidence.” State v. Rucker,
847 S.W.2d 512, 516 (Tenn. Crim. App. 1992). In this case, the log contained “matters
observed by police officers” — specifically, the report from a police officer that the officer
had spoken with someone about Penny Cox’s whereabouts and statements regarding the
police department’s contacting various taxicab companies. The public records exception,
Rule 803(8), prohibits such observations. Therefore, it was error for the trial court to admit
the entirety of the 9-1-1 log without excluding the specific prohibited statements.
Nonetheless, the error is clearly harmless in light of the other evidence presented during the
trial about Ms. Cox’s whereabouts following the victim’s death. See Tenn. R. Evid. 36(b).
3. John Mitchell’s Testimony
Appellant argues that the trial court should not have allowed John Mitchell to testify
because the recording and transcript of his interview with the police had been destroyed. The
sole basis of his argument on appeal is that the trial court should have applied the Ferguson
analysis. However, he did not object on this basis in the trial court, instead choosing to
object on the basis of Jencks v. United States, 353 U.S. 657 (1957), and Tennessee Rule of
Criminal Procedure 26.2. “An appellant cannot change theories from the trial court to the
appellate court.” State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). In addition,
he did not present this argument in his motion for new trial. Appellant’s argument is thus
waived. See Tenn. R. App. P. 3(e) (failure to state issue regarding admission of evidence in
motion for new trial results in waiver); State v. Brewer, 932 S.W.2d 1, 9 (Tenn. Crim. App.
1996) (citing State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993)). Moreover,
we decline to review this issue for plain error.
-33-
F. Admission of Autopsy Report and Dr. Mileusnic-Polchan’s Testimony
Appellant contends that it violated his right to confront witnesses for the trial court
to admit the autopsy report compiled by Dr. Sandra Elkins through the testimony of Dr.
Mileusnic-Polchan. In so arguing, appellant relies on the United States Supreme Court
opinions of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009), and Bullcoming v.
New Mexico, --- U.S. ---, 131 S. Ct. 2705, 2709 (2011). In addition, appellant submits that
Dr. Mileusnic-Polchan should not have been accepted as an expert because she was not
licensed to practice medicine in Tennessee at the time of the victim’s autopsy nor should she
have been allowed to testify regarding her own conclusions drawn from Dr. Elkins’ report.
The State responds that there was no error, and we agree.
1. Autopsy Report
This court recently handled a very similar issue and determined that it was not error
for the trial court to admit an autopsy report written by a different medical examiner than the
one testifying. See State v. Jessie Dotson, No. W2011-00815-CCA-R3-DD, 2013 WL
4728679, at *66 (Tenn. Crim. App. June 25, 2013).7 This court summarized the case law
regarding the Confrontation Clause and forensic reports as follows:
In Crawford v. Washington, 541 U.S. 36, 68 (2004), the United States
Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth
Amendment demands . . . unavailability and a prior opportunity for
cross-examination.” “Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers’ design to afford the States flexibility in their
development of hearsay law.” Id. The Court adopted what came to be known
as “the primary purpose test” for distinguishing testimonial statements from
nontestimonial statements, concluding:
Statements are nontestimonial when made in the course of
police investigation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
7
As a death penalty case, Jessie Dotson was automatically appealed to the Tennessee Supreme
Court and is pending as of the filing of this opinion.
-34-
Davis v. Washington, 547 U.S. 813, 822 (2006). Objective evaluation of “the
circumstances in which the encounter occurs and the statements and actions
of the parties” is necessary to determine whether a statement is testimonial or
nontestimonial. Michigan v. Bryant, --- U.S. ---, 131 S. Ct. 1143, 1156 (2011).
In Melendez–Diaz v. Massachusetts, 557 U.S. 305, 307 (2009), the
Court concluded that “affidavits reporting the results of forensic analysis
which showed that material seized by the police and connected to the
defendant was cocaine” were testimonial and subject to exclusion as violating
the confrontation clause. The Court concluded that “the affidavits ‘made
under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial’ “and that
“under Massachusetts law the sole purpose of the affidavits was to provide
‘prima facie evidence of the composition, quality, and the net weight’ of the
analyzed substance.” Id. at 311 (citations omitted). The Court held that absent
a showing that the analysts were unavailable to testify at trial and that the
defendant had a prior opportunity to cross-examine them, the defendant was
entitled to confront the analysts at trial. Id. The Court concluded that live
confrontation of the witness by the defendant was the only constitutionally
permissible way “to challenge or verify the results of a forensic test” and
observed that confrontation would “weed out” fraudulent and incompetent
forensic analysis. Id. at 318-19. The Court rejected the argument that reports
of forensic testing were admissible as business records and that business
records were exempted from the ruling in Crawford. Id. at 321-24.
In Bullcoming v. New Mexico, --- U.S. ---, 131 S. Ct. 2705, 2709 (2011),
the prosecutor introduced the results of forensic testing through the testimony
of a forensic analyst who was familiar with the laboratory’s testing procedures
but did not participate or observe the test on the defendant's blood sample.
The Court held that the defendant’s confrontation rights were violated, noting
that “if an out-of-court statement is testimonial in nature, it may not be
introduced against the accused at trial unless the witness who made the
statement is unavailable and the accused has had a prior opportunity to
confront the witness.” Id. at 2713. The Court rejected the argument that
substitute testimony satisfied the constitutional requirement based upon the
reliable nature of the tests themselves, explaining that “the analysts who write
reports that the prosecution introduces must be made available for
confrontation even if they possess ‘the scientific acumen of Mme. Curie and
the veracity of Mother Teresa.’” Id. at 2715 (quoting Melendez-Diaz, 557 U.S.
at 319 n. 6). The Court concluded that the Confrontation Clause “does not
-35-
tolerate dispensing with confrontation simply because the court believes that
questioning one witness about another’s testimonial statements provides a fair
enough opportunity for cross-examination.” Id. at 2716.
Jessie Dotson, 2013 WL 4728679, at *64.
The Jessie Dotson opinion explained that while Melendez-Diaz and Bullcoming led
this court to the opposite conclusion in State v. James Drew Freeman, Jr., No. M2011-
00184-CCA-R3-CD, 2012 WL 1656975, at *10-13 (Tenn. Crim. App. May 9, 2012), perm.
app. denied (Tenn. Oct. 17, 2012), the United States Supreme Court’s latest opinion on the
matter, Williams v. Illinois, --- U.S. ---, 132 S. Ct. 2221 (2012), effectively abrogated James
Drew Freeman, Jr. See Jessie Dotson, 2013 WL 4728679, at *65-66. The court summarized
Williams v. Illinois:
Williams involved a bench trial in a rape case during which a forensic
specialist from the Illinois state laboratory testified that she matched a DNA
profile produced by an outside laboratory from a vaginal swab taken from the
victim to a profile that the state laboratory obtained using a sample of the
defendant’s blood. In a plurality opinion, the Court concluded that the
testimony did not violate the Confrontation Clause. Id. at 2240. The Court
noted that while the report from the independent laboratory was not introduced
into evidence, the admission of the report would not have violated the
Confrontation Clause even if the report had been introduced for its truth. Id.
at 2242.
The Court stated that the “Confrontation Clause refers to testimony by
‘witnesses against’ an accused.” Id. The Court explained:
The abuses that the Court has identified as prompting the
adoption of the Confrontation Clause shared the following two
characteristics: (a) they involved out-of-court statements having
the primary purpose of accusing a targeted individual of
engaging in criminal conduct and (b) they involved formalized
statements such as affidavits, depositions, prior testimony, or
confessions.
Id. The Court noted that while it held that the forensic reports at issue in
Melendez-Diaz and Bullcoming qualified as testimonial statements, “the Court
did not hold that all forensic reports fall into the same category.” Id. at 2243.
Rather, the introduction of the reports, which reported an elevated
-36-
blood-alcohol level and the presence of an illegal drug, violated the
Confrontation Clause “because they were the equivalent of affidavits made for
the purpose of proving the guilt of a particular criminal defendant at trial.” Id.
There was no ongoing emergency, as both suspects had already been captured,
and the tests were “relatively simple” and generally could be performed by a
single analyst. Id. The Court also noted that the technicians who prepared the
reports must have realized that the contents of the reports would be
incriminating. Id. The Court also noted earlier in its opinion that the forensic
reports in Melendez-Diaz and Bullcoming included a testimonial certification,
made in order to prove a fact in a criminal trial. Id.
The Court explained that an objective test is to be applied in
determining the primary purpose of an out-of-court statement. Id. “We look
for the primary purpose that a reasonable person would have ascribed to the
statement, taking into account all of the surrounding circumstances.” Id. The
Court concluded that the primary purpose of the report from the independent
laboratory in Williams was not to accuse the defendant or to create evidence
for use at trial. Id. Rather, the primary purpose of the report was to “catch a
dangerous rapist who was still at large.” Id.
. . . . As Justice Breyer recognized in his concurring opinion in
Williams, “[a]utopsies, like the DNA report in this case, are often conducted
when it is not yet clear whether there is a particular suspect or whether the
facts found in the autopsy will ultimately prove relevant in a criminal trial.”
132 S. Ct. at 2251 (Breyer, J. concurring).
Jessie Dotson, 2013 WL 4728679, at *65-66.
Applying Williams, this court determined that admitting the autopsy report in Jessie
Dotson when the medical examiner who compiled the report did not testify was not a
violation of Dotson’s right to confront witnesses. Id. at *66. In that case, the primary
purpose of the autopsy report “was not to target the defendant as the perpetrator but instead
to identify the injuries sustained by the victims and their causes of death.” Id.
The primary distinguishing fact between Jessie Dotson and the case sub judice is that
appellant was already in custody when the autopsy was performed, whereas Dotson was not.
See id. Nonetheless, our review of the autopsy report in this case leads us to conclude that
its primary purpose was to identify the injuries sustained by the victim and determine his
cause of death. It was not “accusing a targeted individual of engaging in criminal conduct.”
Williams, 132 S. Ct. at 2242. Moreover, the autopsy report would have remained the same
-37-
whether or not the police had appellant or any other suspect in custody. Therefore, under the
primary purpose test, the autopsy report was not testimonial,8 and its admission at trial absent
the presence of its author, Dr. Elkins, was not a violation of the Confrontation Clause.
2. Dr. Mileusnic-Polchan’s Testimony
Appellant argues that Dr. Mileusnic-Polchan should not have been accepted as an
expert because she was not licensed to practice medicine in Tennessee as of the date of the
victim’s autopsy. In support of his argument, he points to Tennessee Code Annotated section
29-26-115(b), which requires that a licensed health care professional testifying in a medical
malpractice lawsuit must be licensed to practice in Tennessee or a contiguous state in the
year proceeding the alleged tort. However, he has not provided any authority suggesting that
this statute should apply to an expert testifying in a criminal matter, and we decline his
invitation to so apply it.
Appellant further argues that Dr. Mileusnic-Polchan’s testimony violated his right of
confrontation because she did not perform the autopsy yet was testifying as to her
conclusions drawn from the autopsy report. This court in Jessie Dotson addressed this issue
and determined that it was proper for a medical examiner to testify with regard to an autopsy
performed by another medical examiner. Jessie Dotson, 2013 WL 4728679, at *66. As in
Jessie Dotson, Dr. Mileusnic-Polchan was testifying within her area of expertise and relied
on a document, the autopsy report, that was ‘“of a type reasonably relied upon by experts.”’
Id. (quoting Tenn. R. Evid. 703). It is clear that Dr. Mileusnic-Polchan testified as to her
own conclusions, and appellant had an opportunity to thoroughly cross-examine her. This
court has previously noted that several federal courts have held that “‘the Confrontation
Clause does not limit experts offering their own opinion regardless of the independent
admissibility of the material relied upon.’” James Drew Freeman, Jr., 2012 WL 1656975,
at *14 (quoting Nardi v. Pepe, 662 F.3d 107, 112 (1st Cir. 2011)) (citing United States v.
Pablo, 625 F.3d 1285, 1292 (10th Cir. 2010)). Having held that the autopsy report was not
testimonial, we further conclude that Dr. Mileusnic-Polchan’s testimony did not violate
appellant’s right to confrontation.
8
In his concurring opinion in Williams, Justice Breyer questioned what the result would be if the
Court were ever to hold that autopsy reports were testimonial, writing, “What is to happen if the medical
examiner dies before trial?” and “Is the Confrontation Clause ‘effectively’ to function ‘as a statute of
limitations for murder’?” See Williams, 132 S. Ct. at 2251 (J. Breyer, concurring) (citing Melendez-Diaz, 129
S. Ct. 2527 (Kennedy, J., dissenting) (quoting Comment, Toward a Definition of “Testimonial”: How
Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1115
(2008))).
-38-
G. Motions for Mistrial
Appellant challenges the trial court’s denial of three motions for mistrial, two
predicated on alleged prosecutorial misconduct and the third on an improper comment from
a witness that allegedly violated appellant’s right to remain silent. The State responds that
there was no manifest necessity to declare a mistrial on any of the three occasions. We agree
with the State.
A trial court may declare a mistrial if it appears that some matter has occurred which
would prevent the jury from reaching an impartial verdict. Arnold v. State, 563 S.W.2d 792,
794 (Tenn. Crim. App. 1977). A trial court should only declare a mistrial in criminal cases
where a manifest necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443
(Tenn. Crim. App. 1991). A mistrial is appropriate when a trial cannot continue or a
miscarriage of justice would result if it did continue. State v. McPherson, 882 S.W.2d 365,
370 (Tenn. Crim. App. 1994). This court will review the trial court’s decision to grant or
deny a mistrial for abuse of discretion. See State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998)
(citing State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)). The party requesting the mistrial
bears the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385, 388
(Tenn. Crim. App. 1996).
1. Prosecutorial Misconduct
Appellant cites two occasions when he moved for a mistrial based on the allegedly
improper conduct of the prosecutor. On the first occasion, appellant accuses the prosecutor
of eliciting evidence of appellant’s prior bad acts without first requesting a hearing under
Tennessee Rule of Evidence 404(b). The following exchange occurred during Penny Cox’s
testimony:
PROSECUTOR: [L]et’s talk about . . . the first time that you go
over to [appellant]’s house, the first time that you
meet him.
Can you explain that to us?
MS. COX: Well, we went over there, and we smoked crack.
PROSECUTOR: Okay. When you say “we,” who is “we?”
MS. COX: John and Gary. He didn’t smoke, but he was
there.
-39-
DEFENSE COUNSEL: May we approach, Your Honor?
MS. COX: And Thomas Hutchison.
The trial court held a bench conference, during which defense counsel objected to the
State’s not following the procedure outlined in Tennessee Rule of Evidence 404. The
prosecutor responded that Ms. Cox had not yet said appellant had smoked crack but that she
likely would. The prosecutor argued that appellant’s smoking crack showed how he knew
the people involved in this case. The trial court held a jury-out hearing to allow the State to
proffer Ms. Cox’s testimony. Subsequently, the trial court ruled that Ms. Cox could testify
about smoking crack cocaine with appellant after the victim’s death and issued a jury
instruction for the jury to disregard Ms. Cox’s statement, “We smoked.”
Appellant also claims that the prosecutor acted improperly during Ms. Cox’s
testimony when defense counsel objected to leading, and the prosecutor stated, “I can not
lead, and she could say what she knows.” Appellant alleges that the implication of the
prosecutor’s statement is that the defense was hiding evidence from the jury. The trial court
issued a curative instruction that comments by counsel were not evidence.
When reviewing allegations of prosecutorial misconduct, this court must review the
record to determine “whether such conduct could have affected the verdict to the prejudice
of the defendant.” State v. Smith, 803 S.W.2d 709, 710 (Tenn. Crim. App. 1990).
“[P]rosecutorial misconduct does not amount to reversible error absent a showing that it has
affected the outcome of the case to the prejudice of the defendant.” State v. Reid, 164
S.W.3d 286, 321 (Tenn. 2005). Our supreme court has outlined the following factors to
consider when making such a determination:
(1) the conduct complained of viewed in context and in light of the facts and
circumstances of the case; (2) the curative measures undertaken by the [c]ourt
and the prosecution; (3) the intent of the prosecutor in making the improper
statement; (4) the cumulative effect of the improper conduct and any other
errors in the record; and (5) the relative strength or weakness of the case.
State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,
344 (Tenn. Crim. App. 1976)).
In both of these instances, the trial court issued curative instructions to the jury,
instructions which we presume the jury followed. See State v. Vanzant, 659 S.W.2d 816, 819
(Tenn. Crim. App. 1983). In the first instance, when Ms. Cox mentioned that appellant
smoked crack with her the first day she met him, we fail to see how, in the context of the
-40-
case, the prosecutor’s conduct in eliciting the comment amounted to reversible error. We
agree that the prosecutor should not have asked Ms. Cox to elaborate with regard to who had
been smoking crack cocaine at that juncture without a Rule 404(b) hearing, but it was all but
inevitable that the jury would hear that appellant smoked crack cocaine at some point. There
has been no indication that the prosecutor had malicious intent. We conclude that the
prosecutor’s conduct did not amount to reversible error nor did it create a manifest necessity
to declare a mistrial.
As for the second instance, the trial court saw fit to issue a curative instruction when
asked to do so by appellant but not to declare a mistrial. Appellant suggests that the
prosecutor’s statement implied that appellant was hiding information from the jury, but on
the cold, written record we have on appeal, we are unable to either agree or disagree with
appellant’s deduction as to the prosecutor’s meaning. Therefore, we must defer to the
decision of the trial court, which was in a much better position to interpret the prosecutor’s
meaning. Based on the record before us, we must conclude that there was no manifest
necessity to declare a mistrial.
2. Alleged Violation of Fifth Amendment Right to Remain Silent
Appellant moved for a mistrial during Investigator Murray’s testimony predicated on
the witness’s saying that he asked appellant whether he wanted to give a statement and read
appellant’s rights to him. Investigator Murray did not say that appellant refused to give a
statement because either the prosecutor or the court (it is unclear from the transcript)
interrupted him.
It is fundamental that the State cannot use a defendant’s post-arrest silence against
him, with certain exceptions that do not apply to this case. See Doyle v. Ohio, 426 U.S. 610,
617-19 (1976); Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (“[I]t is impermissible
to penalize an individual for exercising his Fifth Amendment privilege when he is under
police custodial interrogation. The prosecution may not, therefore, use at trial the fact that
he stood mute or claimed his privilege in the face of accusation.”). In this case, while
Investigator Murray nearly crossed the line, the fact remains that he never said that appellant
invoked his right to remain silent. Moreover, the trial court issued a curative instruction to
the jury that it should disregard both the prosecutor’s question that led to Investigator
Murray’s answer and his answer. Again, we apply the presumption that the jury followed the
trial court’s instruction. See Vanzant, 659 S.W.2d at 819. Under these circumstances, we
conclude that the trial court did not abuse its discretion by denying appellant’s motion for
mistrial because there was no manifest necessity.
-41-
H. Denial of Request for Continuance
Appellant argues that the trial court should have granted him a continuance on the
morning of the first day of his trial based on the prosecution’s late disclosure of photographs
of appellant’s clothing. The State responds that appellant has failed to demonstrate actual
prejudice from the denial of the request for continuance. We agree with the State.
The record in this case reflects that just before trial, appellant requested from the State
any photographs taken by the TBI. The State contacted the TBI, and Agent Keith Proctor
sent the State two photographs, which it then sent to appellant. The photographs were of
appellant’s clothing that had been tested by the TBI, specifically a jacket and shirt. Appellant
stated that he received the photographs the Friday prior to the first day of trial. He requested
a continuance to be allowed to examine the photographs and explore who made the
photographs and when the photographs were made, among other inquiries. The trial court
denied his request.
The decision to grant or deny a continuance is a matter left to the discretion of the trial
judge, whose decision will not be disturbed absent a showing of abuse of discretion to the
defendant’s prejudice. State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004) (citing State v.
Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). “An abuse of discretion requires a showing that
the denial of a continuance denied the defendant a fair trial or that the result of the trial
would have been different.” Id. In this case, appellant has not demonstrated that the denial
of the continuance prejudiced him to the extent that he was denied a fair trial or that he would
have received a different result otherwise. Appellant had the opportunity to thoroughly
cross-examine the TBI agent responsible for testing the items of clothing depicted in the
photographs. Moreover, appellant has not asserted that he would have discovered any
additional information about the photographs had he been granted a continuance. Therefore,
we conclude that the trial court did not abuse its discretion in denying appellant’s request for
a continuance.
I. Denial of Motion to Strike Penny Cox’s Testimony
Appellant contends that the trial court erred by denying his motion to strike Penny
Cox’s testimony. Appellant claims that Ms. Cox’s testimony was inconsistent to the point
that it was incompetent. The State responds that appellant was allowed to impeach Ms. Cox
with her inconsistencies and that any inconsistencies did not require striking her testimony.
During Ms. Cox’s testimony, the trial court held a Rule 404(b) hearing. See Tenn. R.
Evid. 404(b). In that jury-out hearing, Ms. Cox stated that appellant discussed robbing the
victim on the second day that she was at his house, but she later stated that it was the third
-42-
day she was there. She insisted that she was nervous and confirmed that the discussion
happened on the third day. Appellant moved to strike her testimony based on the
inconsistency of her testimony. The trial court denied the motion, and appellant was allowed
to impeach her with her inconsistent statements.
“The purpose of a motion to strike evidence is to exclude incompetent evidence from
the record and consideration by the trier of fact.” State v. Melvin, 913 S.W.2d 195, 200
(Tenn. Crim. App. 1995). The movant may request the exclusion of an item of evidence, part
of a witness’s testimony, or a witness’s entire testimony. Id. We review the trial court’s
decision for abuse of discretion. Id.
Appellant relies on the “rule of cancellation” to assert that Ms. Cox’s testimony
should have been stricken. Tennessee law holds that “contradictory statements by a witness
in connection with the same fact cancel each other.” State v. Matthews, 888 S.W.2d 446, 449
(Tenn. Crim. App. 1993) (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482
(Tenn. Ct. App. 1978)). However, the “rule of cancellation applies only when inconsistency
in a witness’s testimony is unexplained and when neither version of his testimony is
corroborated by other evidence.” Id. (citing Taylor, 573 S.W.2d at 483) (emphasis added).
“The testimony of a witness as to a particular fact may have value even though he has both
affirmed and denied it if the contradiction is explained and is shown to have been the result
of misunderstanding or inadvertence.” Johnston v. Cincinnati, N. O. & T. P. Ry. Co., 146
Tenn. 135, 240 S.W. 429, 435 (1922).
Ms. Cox explained that she misspoke because she was nervous and affirmed that
appellant told her of his plan to rob the victim on the third day of her stay at his house. This
appears to be the type of inadvertent mistake comprehended by our supreme court in
Johnston. In any event, the rule of cancellation would apply only to the specific facts about
which Ms. Cox testified inconsistently, not the entirety of her testimony. The trial court did
not abuse its discretion by denying appellant’s motion to strike.
J. Autopsy Photographs
Appellant argues for the first time on appeal that the trial court erred by admitting the
autopsy photographs. He specifically complains that the jury’s “prolonged exposure” to the
photographs during Dr. Mileusnic-Polchan’s testimony was unnecessary as the fact and cause
of the victim’s death and his injuries had been established by other witnesses. The State
responds that appellant has waived review of this issue for failing to object to the admission
of the photographs at trial. We agree with the State. Appellant did not lodge an objection
to the photographs and has thus waived appellate review of this claim. See Tenn. R. App.
P. 36(a); Tenn. R. Evid. 103(a)(1).
-43-
K. Jury Instruction that Witnesses Are Presumed to Tell the Truth
Appellant argues that the trial court’s instructing the jury that witnesses are presumed
to tell the truth infringed on his right to remain silent and was an improper comment on the
evidence by the trial court. He is especially concerned that the presumption endorses the
credibility of Ms. Cox’s and Mr. Mitchell’s testimonies. The State replies that courts of this
state and the United States Supreme Court have allowed such jury instructions and that
application of the controlling authority renders appellant’s argument meritless. We agree
with the State.
In Cupp v. Naughton, the United States Supreme Court ruled that a jury instruction
that all witnesses were presumed truthful did not violate the Due Process Clause of the
Fourteenth Amendment when the jury was also “instructed to consider the manner of the
witness, the nature of the testimony, and any other matter relating to the witness’ possible
motivation to speak falsely” and “was charged fully and explicitly about the presumption of
innocence and the State's duty to prove guilt beyond a reasonable doubt.” 414 U.S. 141, 149
(1973). The Court reasoned that such instructions allowed the jury to “remain[] free to
exercise its collective judgment to reject what it did not find trustworthy or plausible.” Id.
Moreover, such instructions did not place undue pressure on an accused to take the witness
stand or to call witnesses. Id. Likewise, this court in Lundy v. State applied Cupp to a
similar instruction in Tennessee and concluded that the jury charge taken as a whole,
including the presumption of truthfulness, was constitutionally sound. 752 S.W.2d 98, 103
(Tenn. Crim. App. 1987).
In this case, the trial court thoroughly instructed the jury on the presumption of
innocence applied to appellant and the State’s burden to prove his guilt beyond a reasonable
doubt. The trial court also instructed the jury that while the law presumed that witnesses
testified truthfully, it was the jury’s prerogative to reconcile conflicts in witnesses’
testimonies and to decide whom they believed. The trial court also provided factors for the
jury to consider when weighing a witness’s credibility, including the witness’s motives,
mannerisms while on the stand, and whether the witness was in a position to know about the
matter to which he or she was testifying. These jury instructions “acknowledg[ed] that a
witness could be discredited by his own manner or words,” and therefore, “the instruction
freed [appellant] from any undue pressure to take the witness stand himself or to call
witnesses under the belief that only positive testimony could engender disbelief of the State’s
witnesses.” See Cupp, 414 U.S. at 149. We conclude that appellant’s claim is without merit.
-44-
L. Sufficiency of the Evidence
Appellant contends that the evidence was insufficient to support his convictions for
facilitation of first degree murder and facilitation of especially aggravated robbery because
there was no evidence that he substantially assisted another person who committed murder
and especially aggravated robbery, which is a required element of facilitation. In addition,
he argues that the trial court should have granted his motion for a judgment of acquittal with
regard to the especially aggravated robbery charge because there was no proof of a robbery.
The State responds that there was sufficient evidence for the jury to determine that an
unknown and unindicted person committed the murder and especially aggravated robbery,
substantially assisted by appellant.
The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence is “whether, after viewing 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 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977). A motion for judgment of acquittal raises a
question of law, i.e., the legal sufficiency of the evidence, for determination by the trial court.
State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995) (citing State v. Hall, 656
S.W.2d 60, 61 (Tenn. Crim. App.1983)). Thus, on appeal, this court applies the same
standard of review both to the trial court’s denial of a motion for a judgment of acquittal and
to the sufficiency of the convicting evidence underlying the jury’s verdict. State v. Carroll,
36 S.W.3d 854, 869 (Tenn. Crim. App. 1999) (citing State v. Ball, 973 S.W.2d 288, 292
(Tenn. Crim. App. 1998)).
On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
-45-
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
In order to support appellant’s convictions for facilitation, the State had to prove
beyond a reasonable doubt that “the accused (a) knew another person was going to commit
a specified felony and (b) knowingly furnished substantial assistance in the commission of
the felony although the accused did not possess the requisite intent to be guilty of the felony.”
State v. Parker, 932 S.W.2d 945, 950-51 (Tenn. Crim. App. 1996); see also Tenn. Code Ann.
39-11-403(a). Appellant was convicted of facilitating first degree murder under alternate
theories of premeditation and felony murder and of facilitating especially aggravated robbery.
Under the theory of premeditated murder, the State would have had to show that “the intent
to kill [was] formed prior to the act itself.” See Tenn. Code Ann. § 39-13-202(d). For the
felony murder counts, the State had to establish that the victim was killed in the course of a
robbery or theft. Finally, the State had to demonstrate that the person to whom appellant
provided substantial assistance was culpable of especially aggravated robbery, which is
defined as “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear” that is “[a]ccomplished with a deadly weapon[ ] and
[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. §§ 39-13-401, -403. In
addition, to survive the motion for judgment of acquittal with regard to the especially
aggravated robbery charge, the proof had to be sufficient that appellant was responsible for
especially aggravated robbery as we have just defined it.
Appellant contends that there was no evidence that another person was involved in
the victim’s death and that there was no evidence of a robbery. However, viewed in the light
most favorable to the State, the evidence revealed at trial was sufficient to support appellant’s
convictions. Regarding whether the victim was robbed, the testimony indicated that the
victim typically wore two rings on one hand, but he was only wearing one ring when the
police found him. A gold ring, identified by John Mitchell as belonging to the victim, was
found in an adjacent bathroom. Moreover, according to Mr. Mitchell’s testimony, the victim
had at least $2000 in cash on his person prior to his death. Appellant had money after the
victim’s death that he did not have before. Ms. Cox also had a sum of money after the
victim’s death, the origin of which was unclear from the testimony. She claimed she had
received a tax return, but according to one witness, Ms. Cox did not work. In any event,
most of the victim’s $2000 was unaccounted for as the police did not testify that appellant
-46-
had that much currency when he was arrested. Thus, the facts established that an especially
aggravated robbery occurred. This evidence was sufficient to support the trial court’s denial
of appellant’s motion for judgment of acquittal. The State’s evidence also established both
premeditated murder and felony murder, considering that appellant expressed to Ms. Cox his
plan to rob the victim, his luring the victim into his home to conduct a drug sale, with no
evidence of a buyer, and the aforementioned facts supporting the especially aggravated
robbery of the victim.
The central issue is whether the facts support that appellant knew someone was going
to kill and rob the victim and that appellant substantially assisted said person. Appellant’s
foreknowledge is supported by the same facts supporting premeditation: appellant had a plan
to rob the victim and lured the victim into his house on the pretext that they would conduct
a drug sale with a third party. Several facts also support appellant’s assistance of the
principal actor, rather than his direct participation. Ms. Cox was in the house during the
offenses, and although she told the police that she had not changed clothes since the murder,
Ms. Armas-Trejos testified that Ms. Cox was wearing different clothes when she picked her
up than when Ms. Cox was at the police station. Mr. Mitchell testified that appellant said,
“I didn’t do it by myself.” The clear implication is that another person was involved in the
offenses. In addition, while appellant had some of the victim’s blood on his clothing, near
his ankles, and on his fingers, the amount of blood was not necessarily what one would
expect considering the massive trauma received by the victim. There is also the issue of who
had the victim’s missing $2000. While there is no direct proof that another person was
involved, a jury could have found the existence of a culpable party based on this
circumstantial evidence. Therefore, we conclude that any rational jury could have found
appellant guilty of facilitating first degree murder and facilitating especially aggravated
robbery.
M. Cumulative Error
Appellant argues that he is entitled to a new trial due to cumulative errors throughout
his trial. However, he has only shown two errors, both of which we deemed harmless.
Therefore, we conclude that he is not entitled to a new trial on this basis.
CONCLUSION
Based on our review of the record, the parties’ arguments, and the applicable law, we
affirm the judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
-47-