State of Tennessee v. Frank Graham ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 9, 2013 Session
STATE OF TENNESSEE v. FRANK GRAHAM
Appeal from the Criminal Court for Shelby County
No. 10-05148 Chris Craft, Judge
No. W2012-00735-CCA-R3-CD - Filed May 31, 2013
A jury convicted the defendant, Frank Graham,1 of the first degree premeditated murder of
his ex-fiancee, Taffi Crawford. The defendant received a life sentence. On appeal, the
defendant contests the sufficiency of the evidence establishing premeditation. He also asserts
that the trial court erred in refusing to suppress the statement he gave police, in which he
acknowledged having accidentally shot the victim. The defendant asserts that he was
arrested without probable cause and that his waiver of rights was not valid because police did
not inform him about the presence of an attorney who had been contacted by his family to
represent him. The defendant also appeals on the ground that the trial court erred in allowing
certain testimony regarding prior bad acts. After a thorough review of the record, we
conclude that the trial court did not err, and we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and J EFFREY S. B IVINS, J.J., joined.
Paul J. Springer and Edward Bronsten, Memphis, Tennessee, for the appellant, Frank
Graham.
Robert E. Cooper, Jr., Attorney General & Reporter; J. Ross Dyer, Senior Counsel; Amy P.
Weirich, District Attorney General; and Jennifer Nichols and Patience Branham, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
1
Although the defendant is identified as “Frank Graham” in court documents, he testified at trial that
his name is Frank Graham III.
Factual and Procedural History
The victim was shot on the morning of February 12, 2010, in the parking lot of the
medical center at which she worked as a nurse. Despite the fact that the victim and defendant
were no longer engaged, evidence was introduced at trial that the defendant was in constant
contact with both the victim and a firefighter with whom he was convinced she was having
a relationship. After the shooting, based on information obtained from the victim’s
acquaintances and from witnesses, police went to the defendant’s apartment, where they
found the car associated with the crime. The defendant was taken into custody and later gave
a statement admitting responsibility for the shooting, which he claimed was accidental.
The defendant’s attorneys moved to suppress the statement. At the hearing on the
motion to suppress, the State introduced the testimony of Detective Robert Wilkie of the
Memphis Police Department. Detective Wilkie testified that the defendant was interviewed
beginning around 4:15 p.m. on February 12, 2010 and that he never indicated that he wanted
an attorney. Detective Wilkie stated that the defendant was informed of his right to counsel
and chose to waive it at the beginning of the interview. According to Detective Wilkie, the
interview was interrupted around 5:00 p.m. by the crime scene investigators, who wanted to
do a gunshot residue test. The interview resumed at 6:00 p.m., when officers provided dinner
for the defendant. The defendant signed a statement, which was preceded by another advice
of rights, at 8:13 p.m. Detective Wilkie testified that the defendant acknowledged shooting
the victim, although he said that the shooting was an accident and that he had just been trying
to scare her.
Attorney Michael Scholl testified that on the day of the crime, his office contacted him
about a phone call asking him to represent the defendant. Mr. Scholl testified that he did not
know if the call to his office came from the defendant or from the defendant’s family. Mr.
Scholl later spoke with a representative of the family and agreed to serve as the defendant’s
lawyer. Around lunchtime, Mr. Scholl ran into Sergeant William Merritt of the Memphis
Police Department. Mr. Scholl told Sergeant Merritt that he was the defendant’s attorney and
that he wanted to participate in questioning of the defendant. Sergeant Merritt asked Mr.
Scholl to wait for ten to fifteen minutes while he checked on the defendant’s whereabouts
and then reported that the defendant was not yet in custody. Mr. Scholl gave Sergeant
Merritt his card with his cell phone number and told Sergeant Merritt that he represented the
defendant. He never received a call informing him that the defendant was in custody, and
he found out from the evening news that the defendant had given a statement. Mr. Scholl
had no further involvement in the case.
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Sergeant Merritt testified that his only involvement with the case was to escort the
defendant from the tenth to the eleventh floor at the police station. The defendant arrived at
the station in the late morning or early afternoon – to the best of Sergeant Merritt’s
recollection, sometime between ten and noon. Sergeant Merritt could not recall speaking
with Mr. Scholl that day and recalled no other involvement in the case. According to
Sergeant Merritt, if Mr. Scholl testified they had a conversation, “that could very well be
because I don’t think that he would come in here and fabricate something.” However, he had
no independent recollection of the conversation.
The defendant testified that he was arrested at his apartment around 9:00 or 9:30 a.m.
He opened his apartment door when police knocked, and he was put in the back of a squad
car for at least an hour. He recalled being escorted upstairs at the police station by Sergeant
Merritt, and he was shackled to a bench. When Sergeant Merritt checked on him in thirty
minutes, he asked to call his family. Officers continued to check on him, and he continued
to ask to call his family. After two hours, he wrote the names and phone numbers of his
mother, father, and sisters on a chalkboard in the room, which was photographed with the
information written on it.
The defendant testified that the crime scene investigators then performed a gunshot
residue test. When Detective Wilkie began the interview, the defendant’s glasses could not
be located, and the detectives read the advice of rights to him. The defendant testified that
the hand-written notation indicating that the defendant had read the form aloud and did not
need glasses was not there when he signed it. He acknowledged telling officers he
understood it. The defendant testified that initially, he did not request a lawyer but did
continually ask to call his family. However, Detective Wilkie “kept insinuating certain things
and then at that point I asked for an attorney.” He requested an attorney because as a
firefighter, he had just undergone training on preserving a crime scene, and he knew that he
“shouldn’t be talking to the police.” When the defendant requested an attorney, Detective
Wilkie left, and another officer told the defendant that the victim had identified him and that
he had been recorded by video equipment at the hospital. At that point, the other officer left
and the defendant’s face and arms were photographed by crime scene investigators.
Detective Wilkie brought the defendant dinner and began to question him again. The
defendant reminded him that he had asked for an attorney, asked why he was still being
questioned, and requested to make his phone call. The defendant testified that the officers
told him he would not be able to make a call unless he signed a statement. No one told him
that an attorney had been to the station on his behalf. The defendant testified he would not
have made a statement if he had known that he had an attorney. He also testified that
detectives coached him on what to say, that he did not review the statement prior to signing
it, and that it did not accurately reflect the questions or his responses.
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On cross-examination, the defendant acknowledged that he had attended college and
could read and write. He acknowledged having signed a form stating he understood his
rights, but testified he did not understand his rights at the time. The defendant was unaware
that his family had contacted an attorney on his behalf until after he had signed his statement.
Asked if he thought he already had an attorney, the defendant testified, “After I asked for
one, yes. With my network of family and friends, without a doubt I knew –”
The trial court denied the defendant’s motion to suppress his statement. In its order,
the trial court found that both Mr. Scholl and Sergeant Merritt were credible witnesses, and
that Mr. Scholl had the conversation he described with Sergeant Merritt but that Sergeant
Merritt, who was not assigned to the case, promptly forgot it and did not alert the officers
conducting the interview. The trial court further found that the defendant was not being
truthful when he testified that he asked for an attorney. The trial court concluded the
defendant voluntarily waived his rights. The trial court further found that Mr. Scholl was
never hired to represent the defendant and ruled that even if Mr. Scholl had been retained,
that fact had no effect on the voluntariness of the waiver. It found that officers were not
acting with malice in any failure to inform Mr. Scholl that the defendant was in custody or
failing to inform the defendant that Mr. Scholl was present. Because the trial court found
that the defendant’s statement was given freely and voluntarily and that the presence of a
lawyer hired to represent him had no effect on the voluntariness of statement, the trial court
refused to suppress the statement.
The jury trial took place from January 9 to January 16, 2012. The State presented the
testimony of eyewitness Ramone Hall, who testified that on Friday, February 12, 2010, he
was working at the medical center. At around 8:40 a.m., Mr. Hall was walking to his car to
retrieve something when he saw the victim, Taffi Crawford, drive by him in the parking lot.
Mr. Hall was reaching into his glove compartment when he heard a shot. He looked around
and heard two more shots. Because he identified the sound as gunfire, he dropped into the
car seat. After the shots subsided, he got out of his car and saw a white, 1990s model
Mercury Sable “speeding off.” Mr. Hall found the victim, who had been shot in the head,
lying on the ground between two vehicles and recognized her by her name tag. He
summoned a security guard. Mr. Hall initially assumed the victim was dead, but saw her
breathing and asked the security guard to summon help from the ER. Mr. Hall gave a
statement to police. Mr. Hall acknowledged that he did not see the shooting.
Fred Booker, an employee of Delta Medical Center, was walking through the parking
lot on his way from an adjacent building to the hospital at around 9:00 a.m. Mr. Booker
heard a shot and hid behind a van. Ten seconds later, he heard a woman who sounded
hysterical. He then heard a man arguing and two more shots. Mr. Booker saw a car, which
he described as a white Mercury or Ford with a blue, two-toned bumper, speed off. He then
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and went over to Mr. Hall and the victim. On cross-examination, Mr. Booker testified that
the arguing could have been two male voices. Mr. Booker’s testimony was unclear regarding
whether he saw a man running, but he acknowledged having described the suspect as having
bright or light skin to the police.
A bystander, Pete Mack, testified that he was walking through the parking lot on his
way to visit his doctor in a building adjacent to the hospital at around 9:00 a.m. on February
12, 2010, when he heard arguing and then a shot. Mr. Mack turned to see a man standing
outside a car with an open door, pointing a gun toward the ground. A few seconds had
passed since the first shot, and the man shot two more times. Mr. Mack saw the man get into
a white car with a bumper that was blue on the passenger’s side. No one else was in the car.
The man drove past Mr. Mack, who was attempting to run away. Mr. Mack testified he
would not be able to identify the man. Mr. Mack then went to where the victim, who
appeared lifeless, was lying. On cross-examination, Mr. Mack acknowledged having told
police he estimated the shooter was five feet eight or ten inches tall. He testified that he
never saw anyone running.
Bridgette Collins, the victim’s sister, testified that she worked at the medical center
and was alerted to her sister’s shooting by coworkers. When she arrived at the hospital,
doctors informed her that the victim had suffered brain death; the victim subsequently passed
away.
Shakila Hampton, who was a friend of the victim’s from nursing school, testified that
she and the victim graduated in August 2009, and that the victim was engaged to the
defendant at the time. Ms. Hampton testified that the defendant and the victim attended a
graduation party at a club. She testified that when the victim arrived, she told Ms. Hampton
that the defendant was upset with her. Subsequently, when the victim, Ms. Hampton, and
several friends were dancing, the defendant grabbed the victim by the arm and forced her
from the club. The next time she saw the victim, the victim had a splint on her finger. About
a week after the incident at the club, the victim had a party at her house, and she and the
defendant were no longer dating at that time. Ms. Hampton also testified that the victim had,
during the previous winter, shown her a bruise on her upper arm, and that the victim had
appeared as though she had been crying on that occasion. On cross-examination, she
acknowledged that she did not see club security intervene between the victim and defendant
at the graduation party.
Another classmate of the victim, Damanai Johnson, also testified that he attended the
party at the club. Mr. Johnson witnessed the victim and the defendant having “a pushing
pulling match” in the parking lot. The next time he saw the victim, she had a splint on her
finger. On cross-examination, Mr. Johnson testified that he did not think the victim was in
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danger of “immediate bodily harm” in the parking lot.
Reverend Dwight Saulsberry, the pastor of the church both the victim and defendant
attended, testified that the victim approached him to get help resolving some problems with
the defendant through counseling and that she also sought to have Rev. Saulsberry speak to
the defendant “because she wanted to get away from him.” Rev. Saulsberry testified that the
victim called him one Sunday in November or December hysterical and crying because the
defendant had threatened to “blow her [motherf-----g] head off.” The victim told Rev.
Saulsberry that she had not wanted to sit with the defendant at church and at one point they
went outside during the service. The defendant then made the threat. Rev. Saulsberry
testified that the victim had also called him the day after a dance party celebrating her
graduation where the defendant had grabbed her hand and broken her fingers. The victim
was thinking of leaving the defendant, and after the defendant threatened her life, she told
Rev. Saulsberry she wanted to get out of the relationship.
On cross-examination, Rev. Saulsberry testified that he encouraged the victim to
contact police after her finger was broken, but she was afraid of “what he would do” and
wanted Rev. Saulsberry to try to influence the defendant instead. He testified that the victim
called him in the evening after the defendant threatened her during the Sunday service, which
normally ended between eleven and noon. The victim was “terrified” of the defendant. He
testified that although he served as Chaplain of Police, he could not make arrests himself and
did not report the broken finger because he did not witness the incident. He stated that he
did not recall the victim, defendant, or other parishioner mentioning the incident prior to the
phone call.
David Tessaro, an officer with the Southaven Police Department, testified that on
January 3, 2010, at around 5:58 a.m., he was called to the victim’s home, where the victim
and defendant had been arguing through a window, and the defendant had broken a
six-by-eight inch pane in the window and then left. The defendant was later arrested based
on the incident. On cross-examination, Officer Tessaro testified that his report indicated the
defendant was the victim’s boyfriend, and he would have noted if it had been an ex-
boyfriend. He testified that it was possible that only the inside pane of the double-paned
panel was broken, leaving shards on the sill.
James Oliver, an officer with the Memphis Police Department, testified that on the day
of the murder, he responded to the scene of the shooting and, based on witness interviews
at the scene, he developed the defendant as a suspect and obtained a description of the
vehicle involved. The victim was lying between two cars with her feet toward the rear of the
cars and was taken from the parking lot into the hospital. Officer Oliver interviewed five to
six witnesses, some of whom only had information about the victim’s past relationships.
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Officer Oliver acknowledged that the information about the victim’s boyfriend as a possible
suspect was given to him by one of the witnesses who did not see the crime. He did not
know if any cars had come and gone prior to his arrival on the scene.
An investigator with the Memphis Police Department, Ricky Davidson, testified that
he took photographs and made diagrams of the scene. He identified pictures of the victim’s
car, three spent casings, and a bullet. Investigator Davidson also collected a bullet fragment
that he testified was oxidized and could not have been fired recently enough to be involved
with the crime.
Officer Charles Taylor of the Memphis Police Department participated in
apprehending the defendant. Officer Taylor received a description of the defendant, along
with his name and address and a description of the white Mercury Sable. When Officer
Taylor arrived at the defendant’s apartment complex, he observed a white Mercury Sable
parked next to a black Mercedes which was running but unoccupied. A search revealed that
the Mercury Sable was registered to James Lucas, and the Mercedes was registered to the
defendant. The defendant answered his door when police knocked at 9:45 or 10:00 a.m. and
informed officers he was about to leave town. He was placed in the back of a police car.
Officer Taylor testified that he did not have any interaction with Mr. Lucas, but he did see
other officers speak with him at the scene.
James Lucas, the defendant’s neighbor, testified that he owned a 1999 Sable with a
white body and blue front. Mr. Lucas testified that the defendant asked to borrow his car at
approximately 7:15 a.m. on February 12, 2010. The defendant, who owned both the
Mercedes and a green truck, allowed Mr. Lucas to borrow his truck so that Mr. Lucas could
get his hair cut at around 8:30 a.m. When Mr. Lucas returned, he was detained by police for
approximately one hour in the back of a car and then questioned. He identified the defendant
from a line-up as the man who had borrowed his car that morning. He testified he did not
know what the defendant had planned to do with his car.
Joe Stark, an officer with the homicide unit of the Memphis Police Department,
testified that the shooting was initially handled by the felony assault unit because the victim
was still alive, but that he was called to assist because of the likelihood of her death.
Sergeant Stark interviewed witnesses at the scene and then went to the defendant’s apartment
and spoke with Mr. Lucas while he and the defendant were being detained. He testified Mr.
Lucas was puzzled and cooperative and that he obtained the keys to the defendant’s truck
from Mr. Lucas.
Sergeant Stark participated in the search of the defendant’s home pursuant to a
warrant. A gun case and some keys were on the couch. Inside the case was a .40 caliber
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loaded Glock handgun. One round was in the chamber of the gun, and twelve were in the
clip; a box held additional rounds. The defendant’s bedroom contained bags packed with
clothing and the victim’s cell phone records from December 18, 2009 to January 13, 2010.
The phone records contained handwritten notes, with certain numbers circled, certain
numbers apparently denoted as belonging to male or female users, and others linked to
names. The key for the Mercury Sable was in the bedroom. Mr. Lucas gave Sergeant Stark
permission to search his car, but no weapons were found. Sergeant Stark testified that the
casings found at the shooting site were nine millimeter casings, and the Glock handgun he
found at the defendant’s apartment was not the weapon used in the shooting.
Special Agent Steve Scott, with the firearms identification unit of the Tennessee
Bureau of Investigation, testified as an expert in firearms. Agent Scott examined the forty
caliber Glock handgun, the thirteen cartridges and magazine, and three bullet casings and two
bullets from the crime scene. Agent Scott testified that he fired three of the cartridges in
testing the weapon. He testified that the weapon did not fire any of the casings recovered
from the shooting, but that all the casings had been fired by the same gun. He testified that
one of the bullets was a nine millimeter bullet which appeared to have blood on it, and it was
not fired from the weapon he examined. The other was a .38 or .357 caliber bullet which
also did not come from that weapon and which had spent some time exposed to the elements.
On cross-examination, Agent Scott testified that he could not testify regarding whether the
nine millimeter bullet had been fired through one of the three casings. He also stated he
could not determine how long the other bullet had been outside.
Keon Pickford, with whom the defendant suspected the victim was having an affair,
testified that he was a firefighter with the Memphis Fire Department, and he knew the
defendant because they had trained together to be firefighters. Mr. Pickford testified that he
met the victim at a restaurant in July 2009 and became Facebook friends with her. Shortly
thereafter, the defendant obtained Mr. Pickford’s phone number from a mutual acquaintance
and called him to inquire how he knew the victim and to tell Mr. Pickford the victim was his
fiancee. Mr. Pickford spoke with the victim about the defendant’s phone call, and he and the
victim continued to have contact by phone, speaking approximately once a week. Mr.
Pickford met the victim once for lunch with friends and once for a brief drink in August
2009; he did not see her again.
The defendant, however, called Mr. Pickford “all the time,” asking about Mr.
Pickford’s relationship with the victim. In October or November, the defendant showed up
at Mr. Pickford’s work, and Mr. Pickford advised him not to endanger his job and to let go
of his past relationship with the victim. The defendant continued to call Mr. Pickford and
became “intense,” calling multiple times per day. After Mr. Pickford stopped answering calls
from the defendant’s number, some of the defendant’s calls appeared to come from the
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victim’s number. Toward the end of January or beginning of February, the defendant
threatened Mr. Pickford in a conversation that involved “us talking about . . . pulling pistols.”
Mr. Pickford reported the conversation to a supervisor and wrote a memo to the fire chief
approximately one week before the victim’s death. Mr. Pickford did not submit the memo
until February 11, 2010, because he was hesitant to cost the defendant his job, but on that day
he faxed it to the fire chief. The next morning, he got off work at the fire station at 7 a.m.
and went to his other job as a barber because he had an 8:00 a.m. appointment. He did not
leave the shop between 8:00 and 9:00, and he was not in the parking lot of the hospital at that
time. Mr. Pickford testified that he was still cutting his client’s hair when he was alerted to
the shooting by phone.
On cross-examination, Mr. Pickford testified he never dated the victim and that he
was dating someone else at the time. When Mr. Pickford left his work at 7 a.m. on the day
of the shooting, he had not been at his regular station but had been working at a fire station
located one block from the scene of the shooting. He had faxed his complaint regarding the
defendant at 8:00 p.m. the previous night and denied faxing it on the 12 th of February. Mr.
Pickford arrived at the barbershop at around 7:45. He testified he did not call the defendant
to tell the defendant to meet him and the victim at IHOP and that he did not see or speak with
the victim at all that morning. He testified he was not kissing the victim in the parking lot.
He acknowledged having talked to the victim daily in early January. He acknowledged telling
an investigator from the DA’s office that he had written the memo to “cover” himself and
explained he was worried the situation would escalate.
Jewell Suggs, a Memphis Police officer, testified that Mr. Pickford was his barber at
the time of the shooting. In February 2010, Mr. Pickford was cutting Mr. Suggs’s hair when
he received a telephone call regarding somebody being shot. Mr. Pickford was upset and fell
to his knees. Mr. Suggs testified that he had arrived at the barbershop around 8:00 a.m. and
Mr. Pickford arrived two or three minutes later. Mr. Suggs testified that after the shooting,
he did not advise Mr. Pickford to go to the police and that he did not report the incident. He
testified that he assumed that the other firefighter had shot the victim, but he acknowledged
he did not tell the investigating officers his suspicion.
At the time of the shooting, Robert Wilkie was an officer in the felony assault bureau
of the Memphis Police Department. Detective Wilkie and another detective interviewed the
defendant, who signed a waiver of his Miranda rights at 4:24 p.m. Initially, the defendant
denied having seen the victim that morning. After telling the police the details of his
relationship with the victim, the defendant told detectives he had received a call the night
before from someone – whom he didn’t want to identify – who told him that the victim
would be meeting Mr. Pickford at IHOP. He borrowed Mr. Lucas’s car and went to the
location but did not see them and drove home, where he was shortly arrested.
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Thirty minutes into the interview, crime scene officers came to conduct a gunshot
residue test on the defendant. Detective Wilkie got him dinner during this time. During
dinner, the defendant told officers he had never before borrowed Mr. Lucas’s car, and that
he did so because he did not want to be recognized. The defendant told detectives that he last
fired a gun two months prior to the interview, and Detective Wilkie confronted him with the
fact that he had gunshot residue on his hands and face. At that point, the defendant asked if
something had happened to the victim. Detective Wilkie told the defendant that she had been
shot and that the only thing that would help him would be telling the truth. The defendant
began to cry. Detective Wilkie asked him why he had shot the victim, and he said, “I was
just trying to scare her.” The defendant then gave a statement in which he admitted shooting
the victim.
Although the exhibits are not included in the appellate record, the defendant’s
statement was read into the record. In his statement, he told police that he drove to IHOP
between 7:45 and 7:50 a.m. because he expected to see the victim and Mr. Pickford. When
they had not arrived by around 8:30 a.m., he drove to the parking lot at the hospital and saw
the victim with Mr. Pickford. He followed the victim while she parked, jumped out, ran up
to her and told her he had caught her. She fell, he leaned over her, and the gun accidentally
discharged. The defendant said that he did not have the gun out when he got out of the car,
but that he took it out when he stood up. The defendant asserted it was an accident and that
he loved the victim and only wanted to scare her. The defendant then said “it’s not like I
stood over her and executed her,” and he mimed aiming a gun at the ground and shooting
three times. The defendant told officers that he threw the jacket and gloves he had worn out
the window of the car, and that he took off his jeans and shoes at home.
Detective Wilkie asked about the gun used in the crime, and the defendant told him
that he had used nine millimeter bullets in the forty caliber gun. Detective Wilkie did not
believe the defendant’s story because he thought that the gun would not shoot nine millimeter
bullets and because the gun was fully loaded when police recovered it. The police then
obtained a written version of the defendant’s statement, which contained another advice of
rights, beginning at 7:26 p.m.
On cross-examination, Detective Wilkie testified that the defendant was taken into
custody around 10:00 a.m. and was not interviewed until around 4:15 p.m. He testified that,
according to the defendant, the victim had told the defendant’s sister that she was still in love
with the defendant. He acknowledged he was not a ballistics expert and had not attempted
to fire nine millimeter bullets from a forty caliber weapon. He did not know if a bullet was
recovered from the victim or submitted for testing. He testified that the defendant’s positive
gunshot residue test was not inconsistent with wearing gloves because the residue was on his
face and arms and not on his hands. He testified that he had forgotten to include the results
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of the test in his notes.
Jeffrey Garey testified that he was a crime scene investigator with the Memphis Police
Department and that he found gunshot residue on the defendant’s elbows, forearms, and
upper arms as well as the bridge of his nose. There was no residue on the defendant’s hands
or clothes. On cross-examination, Officer Garey testified that the defendant was cooperative
and that gunshot residue was easy to wash off or transfer.
The State’s final witness, forensic pathologist Dr. Miguel Laboy, testified that he
found a gunshot wound on the temporal area of the left side of the victim’s head and two
other wounds on the left side of her face, with two exit wounds on the other side of her head.
The victim also had two entry and two exit wounds on her left arm. One bullet and one
fragment were recovered. He testified that he found no soot or stippling and that a handgun
would not leave either if fired a few feet from the victim. He testified it was possible that
the bullets passed through the victim’s arm and then into her head. The victim died from
multiple gunshot wounds inflicted in the course of a homicide.
The defense called several witnesses, beginning with Elizabeth Hayes, the record
keeper for the Memphis Fire Department, who testified that the official copy of Mr.
Pickford’s memo about the defendant had been faxed twice, once on February 12, 2010 at
12:19 p.m. and once on February 11, 2010 at 8:01 p.m. She testified that the number the
document was faxed from was missing and the receiving number was illegible due to a
hole-punch. There was no signature from Mr. Pickford and no signature indicating it had
been received, and none of the fax numbers were associated with the records office. She
testified it appeared to have been faxed to another chief’s office.
Andre Powell, a Memphis firefighter, testified that the defendant had been his college
classmate and fraternity brother. Mr. Powell had social interactions with the defendant and
victim “more than once,” though not many times. Mr. Powell testified that the defendant was
upset about his relationship with the victim and that he and the defendant consequently had
planned a trip to visit friends in Nashville. They had planned to leave town February 12th
or 13th, but Mr. Powell’s mother was ill and he cancelled.
The defendant’s friend Mareco Edwards testified that he was present when the victim
and defendant announced their engagement. When they broke up after the graduation party,
Mr. Edwards advised the victim not to call the defendant or contact him, and he gave the
defendant the same advice about the victim. He saw the defendant a week later, and the
defendant appeared sad and defeated. The day before the shooting, the defendant called Mr.
Edwards, sounding shocked and upset.
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The defendant called Sergeant Stephen Roach, who testified that he was the case
coordinator in charge of investigating the shooting with the Memphis Police Department and
that after developing the defendant as a suspect, he contacted the Fire Department to obtain
the defendant’s work schedule. He discovered that the defendant was not scheduled to work
on February 11-14. Sergeant Roach subpoenaed the victim’s and defendant’s phone records,
and he testified that the records showed that numerous calls were placed between the victim’s
and defendant’s phone numbers between February 1 and February 3, 2010, including calls
from the victim. Sergeant Roach testified that he did not recall receiving the bullets
recovered from the victim through the medical examiner’s office or submitting them to the
Tennessee Bureau of Investigation. The recovered bullets were in an evidence bag indicating
they were received by another officer on April 14, 2010. Sergeant Roach testified that it was
possible that one of the three shots had been fired from another weapon, and that the bullets
recovered from the victim were important. He stated that it would not be normal procedure
for evidence to be tagged two months after it was received from the medical examiner.
Jonathan Weeks, the fire chief in charge of Mr. Pickford’s station, testified that each
firefighter maintained a file – separate from official personnel files – for certificates and
other documents and that the memo regarding the defendant was not in Mr. Pickford’s file.
He testified that the fax machines did not always have accurate dates or times because they
were not always set up correctly, and that sometimes the machines would not show the
number from which a document was faxed. On cross-examination, Chief Weeks testified
that he became aware of a problem between Mr. Pickford and another firefighter, advised
Mr. Pickford to write the memo, and forwarded the memo to the administrative chief. He
testified that he received the memo at night, and he faxed it on the next day.
Tara Watson was a friend of both the defendant and Mr. Pickford, and she testified
that she spoke to both about their conflict. After the shooting, she visited the defendant in
jail,and he was in tears.
The defendant, Frank Graham III, testified that he began dating the victim in 2007,
and they became engaged on Christmas 2008. While she was in nursing school, he helped
support her financially and sometimes cared for her eight-year-old son after school. The
defendant began to suspect that the victim was having a relationship with Mr. Pickford after
he saw a Face book message Mr. Pickford had sent her and when Mr. Pickford called the
victim’s land line and hung up.
The defendant testified that at the graduation party at the club, he wanted to leave
early because someone had accidentally spilled a tableau of drinks on him. The victim did
not want to leave but followed him out. He did not drag her out by the arm. They argued in
the car, and the defendant asked for and reached for the engagement ring while the victim
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“pulled back.” After they arrived at his home, they went to sleep, and the victim did not
mention that her hand was swollen. They broke off the engagement the next morning.
Two and a half weeks later, the victim texted the defendant, and ultimately they
resumed their relationship. After a minor argument on New Year’s Day, the victim and
defendant did not speak until she called him on January 3, 2010. The defendant went to the
victim’s home and was speaking with her through a window when suddenly “a glass was
breaking,” and she yelled at him to leave. The defendant spoke with police and turned
himself in when a warrant was issued for his arrest.
The defendant testified that the following Sunday, the victim came to sit by him at
church. He denied threatening her life. He did not see the victim until the Tuesday prior to
the shooting, when the victim used her key to enter his apartment, and they resumed their
physical relationship. The defendant testified that he was able to access the victim’s phone
records because the victim had previously given him the password. He testified he printed
them to disprove the victim’s claim that she had only spoken to Mr. Pickford once.
On February 12, 2010, the defendant received a call from a man who sounded like Mr.
Pickford and said, “come have breakfast at IHOP . . . with me and your b----.” The defendant
asked Mr. Lucas to drive him there so that the victim would not recognize the vehicle. Mr.
Lucas had an appointment, and he and the defendant switched cars. The victim was not at
the IHOP, but the defendant drove towards her work and saw her and Mr. Pickford at a
nearby business. He then saw them in the parking lot at the medical center, kissing. The
defendant approached, they exchanged words, and the forty caliber Glick went off twice.
Mr. Pickford ran away.
The defendant testified that he drove home, and the keys were not in his Mercedes
when police arrived. He testified that his bags were already packed for his trip to Nashville,
and he was sitting in the middle of the floor crying when police arrived. The defendant
testified that he thought he was in love with the victim but sometime after her graduation and
before the window breaking, he found a video on her computer which showed she was
unfaithful.
On cross-examination, the defendant acknowledged that he was trained as an EMT
and trained in handling firearms. He testified he did not recall whether Mr. Pickford had a
gun at the scene of the shooting. The defendant stated he was so frightened by the weapon
going off that he ran away. He testified he did not threaten the victim and that his pastor lied
about speaking with him regarding the threat. He acknowledged he had used a friend’s
phone to call the victim so that she wouldn’t recognize the number. The defendant denied
breaking the window. The defendant acknowledged that he lied to police when he told them
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he had never before borrowed Mr. Lucas’s car. He asserted that the police were lying when
they said that his car was running. He asserted that Mr. Johnson and Ms. Hampton were
lying when they testified the defendant was pulling the victim out of the club and in the
parking lot.
The defendant was convicted of first degree premeditated murder and sentenced to
life imprisonment. On appeal, he alleges that the evidence introduced at trial was insufficient
to show premeditation. He also contests the trial court’s refusal to suppress his statement to
police, alleging that the officers’ failure to inform him of Mr. Scholl’s efforts to contact him
invalidates the waiver he signed, that a pause in the interview required police to readminister
warnings, and that he was detained without probable cause. The defendant further asserts
that the trial court incorrectly admitted the testimony of Rev. Saulsberry and Officer Tessaro
regarding the defendant’s prior bad acts.
Analysis
A. Sufficiency of the Evidence
An appellate court must set aside a guilty verdict if it concludes that the evidence at
trial was insufficient to support the trier of fact’s finding of guilt beyond a reasonable doubt.
Tenn. R. App. P. 13(e). In making this determination, the court must determine “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). On review, “the State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences that
may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Direct and circumstantial evidence are
treated the same in weighing the sufficiency of the evidence to convict. State v. Dorantes,
331 S.W.3d 370, 381 (Tenn. 2011). Questions regarding the credibility of witnesses, the
weight and value of evidence, and factual issues raised by the evidence are resolved by the
trier of fact, and a guilty verdict accredits the testimony of the State’s witnesses and resolves
all conflicts of evidence in favor of the State’s theory of the case. State v. Wilson, 211
S.W.3d 714, 718 (Tenn. 2007). A guilty verdict replaces the presumption of innocence with
a presumption of guilt, and the defendant bears the burden of proving that the evidence was
insufficient to support the verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
As pertinent here, first degree murder is a premeditated and intentional killing of
another. T.C.A. § 39-13-202(a)(1). The statute goes on to define a premeditated act as:
an act done after the exercise of reflection and judgment.
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“Premeditation” means that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose
to kill pre-exist in the mind of the accused for any definite
period of time. The mental state of the accused at the time the
accused allegedly decided to kill must be carefully considered
in order to determine whether the accused was sufficiently free
from excitement and passion as to be capable of premeditation.
T.C.A. § 39-13-202(d). The defendant’s brief acknowledges that he “discharged his weapon
several times, killing Taffi Crawford.” However, he argues that he was enraged at the
thought that Mr. Pickford was meeting the victim and was not sufficiently free from
“excitement and passion.”
The presence of premeditation is a question of fact for the jury to determine. State v.
Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). The jury may not find premeditation based
on pure speculation, but it may infer it from the manner and circumstances of the killing.
State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005). Factors that tend to establish
premeditation are: the use of a deadly weapon upon an unarmed victim; the particular cruelty
of the killing; declarations by the defendant of an intent to kill; evidence of procurement of
a weapon; preparations before the killing for concealment of the crime; and calmness
immediately after the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The jury
may consider destruction or secretion of evidence after the crime in determining
premeditation. State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003). Likewise, planning
activities by the defendant prior to the murder, the defendant’s relationship with the victim,
and the nature of the killing are relevant. State v. Schmeiderer, 319 S.W.3d 607, 635 (Tenn.
2010) (appendix). Other factors include lack of provocation by the victim and failure to
provide aid or assistance to the victim. State v. Brooks, 249 S.W.3d 323, 329 (Tenn. 2008).
Evidence of repeated blows may, coupled with other evidence, support an inference of
premeditation. Id. Premeditation may also be inferred from the establishment of a motive
for the killing. Jackson, 173 S.W.3d at 409.
The manner and circumstances of this killing are such that a rational trier of fact could
infer premeditation beyond a reasonable doubt. Prior to the murder, the defendant declared
his intention to kill the victim, with whom he had been in an unhappy relationship. On the
day of the crime, the defendant borrowed a vehicle to disguise his approach. He took his
loaded gun and drove to where he thought the victim would be. He lay in wait for the victim,
and when she did not appear, he sought her elsewhere. He then shot the unarmed victim
multiple times with a deadly weapon. Witnesses testified that the shooter shot once, paused
for a few seconds, and then shot two more times. One witness saw the shooter standing up
and aiming the gun at the ground before the final two shots. After the shooting, the
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defendant drove away without rendering aid to the victim, discarding his jacket and gloves
through the car window. The murder weapon was never found. The defendant was
discovered shortly thereafter in his apartment. While he testified that he was crying on the
floor, the State’s witnesses testified that he told them he was getting ready to leave town.
Determining the credibility of the defendant’s testimony regarding his emotional state falls
within the province of the jury. We conclude that the evidence was sufficient to support the
conviction for first degree premeditated murder.
B. Motion to Suppress
The defendant next asserts that his motion to suppress should have been granted
because of Mr. Scholl’s efforts to contact the defendant, because the defendant was held
without probable cause while he was being questioned, and because detectives did not repeat
the Miranda warnings after they took a break to get dinner. The State counters that Mr.
Scholl’s efforts to contact the defendant had no effect on the voluntariness of the waiver and
that the defendant has waived the argument regarding probable cause by not raising it in the
trial court.
A trial court’s factual findings in a suppression hearing will be upheld unless the the
evidence preponderates against them. State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000).
“Questions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party “is entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well as
all reasonable and legitimate inferences that may be drawn from that evidence.” Id.
However, findings of fact which do not require credibility determinations are reviewed de
novo. State v. Climer, __ S.W.3d __, No. W2010-01667-SC-R11-CD, 2013 WL 1694804,
at *13 (Tenn. 2013). Likewise, the trial court’s application of the law to the facts is reviewed
de novo with no presumption of correctness. State v. Talley, 307 S.W.3d 723, 729 (Tenn.
2010).
1. Validity of Waiver Made Without Knowledge of Attorney’s Presence
The Fifth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee the accused the right not to testify against himself.
“Encompassed within these constitutional provisions is the right to counsel, which is
applicable whenever a suspect requests that counsel be present during police-initiated
custodial interrogation.” State v. Sailor, 117 S.W.3d 239, 244 (Tenn. 2003). When an
accused makes a statement to police during custodial interrogation, it must not only pass the
due process test of voluntariness, but must also demonstrate “the use of procedural
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safeguards effective to secure the privilege against self-incrimination,” which include
warnings that the accused has the right to remain silent, that any statement he makes may be
used as evidence against him, and that he has the right to have an attorney present during
questioning, whether retained or appointed. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
If a suspect invokes his right to remain silent or if he requests an attorney,
interrogation must cease. Climer, __ S.W.3d at __, 2013 WL 1694804, at *15. This is
because a subsequent waiver which is not at the accused’s instigation is “not the purely
voluntary choice of the suspect.” Id. at *16 (quoting Arizona v. Roberson, 486 U.S. 675, 681
(1988)). Insofar as the defendant is asserting that he was denied his right to counsel because
he requested an attorney and was told that he could not speak to one until after he had signed
a statement, the trial court made a factual finding that the defendant’s testimony was not
credible and that he did not request an attorney. The evidence does not preponderate
otherwise.
Because the defendant did not invoke his rights, we proceed to the next inquiry:
whether or not he made a valid waiver of those rights. In the absence of invocation, the State
must establish, by a preponderance of the evidence, that the defendant in fact knowingly and
voluntarily waived his rights. Climer, __ S.W.3d at __, 2013 WL 1694804, at *21. A waiver
is voluntary when “it is the product of a free and deliberate choice rather than the product of
intimidation, coercion or deception.” State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994)
abrogated on other grounds by Sailor, 117 S.W.3d at 246. The waiver must also be made
with a full awareness of the nature of the right relinquished and the consequences of
abandoning that right. Climer, __ S.W.3d at __, 2013 WL 1694804, at *22.
The defendant contends that his waiver was not valid because he was not aware that
an attorney retained by his family was attempting to contact him. In Moran v. Burbine, 475
U.S. 412, 417 (1986), an attorney contacted by the defendant’s sister regarding an unrelated
burglary had called the police station where he was held and informed police she was acting
as his counsel. She was told that he would not be questioned that night and was not told he
was suspected to have been involved in a murder. Id. The Court in Burbine held that, under
the federal constitution, the suspect’s subsequent waiver of rights was not invalidated simply
because the suspect was not informed that a particular attorney was attempting to contact
him, as “[e]vents occurring outside of the presence of the suspect and entirely unknown to
him surely can have no bearing on the capacity to comprehend and knowingly relinquish a
constitutional right.” Id. at 422. Although there, as here, the lower court had found that
police did not intentionally or maliciously withhold the information from the defendant or
the attorney, the Court concluded that “even deliberate deception of an attorney could not
possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware
of the incident,” and the deliberate withholding of information from the defendant “is only
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relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge
essential to his ability to understand the nature of his rights and the consequences of
abandoning them.” Id. at 423-24.
Burbine left open the possibility that a state’s constitution might offer broader
protection, and, indeed, several states have concluded that an accused cannot knowingly,
intelligently, and voluntarily waive the right to counsel when an attorney’s attempts to
contact the accused are kept from the accused’s knowledge. See Stephenson, 878 S.W.2d at
545-46 (citing cases); see also, e.g., Commonwealth v. McNulty, 937 N.E.2d 16, 25-26
(Mass. 2010). Tennessee, however, in State v. Stephenson, declined to join the ranks of these
states, and the Stephenson Court concluded that the defendant’s waiver was valid despite the
fact that police did not inform him that an attorney contacted by his father was waiting to see
him. Stephenson, 878 S.W.2d at 547. The Court reasoned:
We do not believe that the suspect’s knowledge of the location
of a particular counsel can affect the intelligent waiver of his
constitutional rights as described in Miranda warnings. Since the
knowledge of the location of counsel adds no constitutional
rights, does not alter the facts of the case as the suspect knows
them, and does not give rise to any coercive influence by the
police, such knowledge is not relevant to the suspect’s voluntary
decision to waive his rights. Although a suspect who was ready
to waive his rights might change his mind when told an attorney
was waiting to see him, the critical factor would be the
convenience of seeing the attorney, not the intelligent perceived
need for legal counsel. Since the convenience of the defendant
is not constitutionally protected, the location of a particular
attorney is not constitutionally required information.
Id. at 546-47 (quoting State v. Hanson, 401 N.W.2d 771, 778 (1987)). The case at bar, where
the defendant was not alerted that his family had contacted an attorney to represent him and
that the attorney was available to consult with him, is indistinguishable from Stephenson and
Burbine. Moreover, although the defendant testified that he did not know that his family had
contacted Mr. Scholl, he stated that he was aware he could have an attorney. We conclude
that Mr. Scholl’s efforts to alert law enforcement to the fact that he was representing the
defendant did not invalidate an otherwise valid knowing and intelligent waiver of the
defendant’s rights.
2. Probable Cause for Arrest
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As another avenue to suppress his statement, the defendant asserts that he was being
held unconstitutionally and without probable cause, and he cites State v. Bishop for the
proposition that the Memphis Police Department’s use of a “48 Hour Detention” form was
unconstitutional. See State v. Bishop, No. W2010-01207-CCA-R3-CD, 2012 WL 938969,
at *8 (Tenn. Crim. App. March 14, 2012) (“The ‘48-hour hold’ does not exist in our
constitutional pantheon of acceptable practices.”). The State counters that the defendant has
waived this issue by failing to properly raise it in the trial court and in his motion for a new
trial.
The motion to suppress is not a part of the record, although a copy of the document
is appended to the defendant’s brief. The motion attached to the defendant’s brief does not
contain particularized grounds for relief. Instead, it recites various general grounds,
including that the defendant was detained without probable cause, that he was denied the
right to counsel, and that the thirty-six-year-old defendant was a juvenile at the time of the
statement. A form entitled “Order Granting 48 Hour Detention for Probable Cause” is also
attached to the defendant’s brief but not included in the record. The defendant made a
passing reference to lack of probable cause at the hearing on the motion to suppress.
However, it is evident from the hearing on the motion to suppress and from the trial court’s
order that this issue was never argued before or decided by the trial court.
A motion to suppress evidence must be made prior to trial and failure to do so results
in waiver. Tenn. R. Crim. P. 12(b)(2)(C), 12(f)(1). Such a motion must also state with
particularity the grounds upon which relief is sought. Tenn. R. Crim. P. 47(c)(1); State v.
Jefferson, 938 S.W.2d 1, 9 (Tenn. Crim. App. 1996) (noting that motion containing “bare
allegations of law” rather than factual allegations may not be entitled to hearing); State v.
Bell, 832 S.W.2d 583, 588-89 (Tenn. Crim. App. 1991). Tennessee Rule of Appellate
Procedure 36 allows an appellate court to grant relief to which a party is entitled, but does
not require that 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.”
Tenn. R. App. P. 36(a). This reflects “the accepted principle that a party is not entitled to
relief if the party invited error, waived an error, or failed to take whatever steps were
reasonably available to cure an error.” Tenn. R. App. P. 36(a) Advisory Comm’n cmt. Here,
the defendant’s one casual reference to probable cause during the hearing was not sufficient
to raise the issue. “[T]he existence of probable cause depends upon the accumulated
information known to law enforcement.” State v. Echols, 382 S.W.3d 266, 278 (Tenn. 2012).
Because the question was not at issue, the record does not delve into what information
officers had when they took the defendant into custody. The failure to raise this issue with
particularity in the motion to suppress or at the hearing results in waiver.
Not only must the ground be raised in a motion to suppress, but a ground upon which
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a new trial is sought is waived unless specifically stated in a motion for a new trial. Tenn. R.
App. P. 3(e). The issues raised in a motion for new trial must be specified with reasonable
certainty so that the appellate courts can ascertain whether the issue was first presented to
the trial court for correction. State v. King, 622 S.W.2d 77, 79 (Tenn. Crim. App. 1981); see
also Waters v. Coker, 229 S.W.3d 682, 689 (Tenn. 2007). The defendant’s motion for a new
trial challenges the denial of the motion to suppress without specifying the grounds; at the
hearing, the defendant’s attorney argued only that the motion should have been granted
because the facts of this case were distinguishable from Burbine. Because this ground was
not argued before the trial court or presented in the motion for a new trial, we conclude that
the State is correct in asserting that it has been waived.
3. One-Hour Lapse in Interrogation
The defendant finally asserts that his confession should have been suppressed because
detectives did not reread his Miranda rights to him after they left the interview room for an
hour while the crime scene investigators checked him for gunshot residue. Initially, we note
that this issue was never decided by the trial court. Although the defense, at the hearing on
the motion to suppress, made a passing reference to the fact of the delay and the authorities’
failure to readminister the Miranda warnings, no legal arguments were presented that failure
to do so invalidated the waiver. The defendant’s written motion to suppress does not present
this issue with particularity, and it was not addressed in the trial court’s order. See Tenn. R.
Crim. P. 47; Bell, 832 S.W.2d at 588-89. Neither did the defendant raise it in either the
motion for a new trial or the hearing on that motion. See Tenn. R. App. P. 3(e).
Accordingly, it has been waived.
In any case, the defendant would not be entitled to relief on this issue. “A valid
waiver of Miranda rights remains valid unless the circumstances change so seriously that the
suspect’s answers to interrogation are no longer voluntary or unless the suspect is no longer
making a knowing and intelligent waiver of his rights.” State v. Rogers 188 S.W.3d 593,
606 (Tenn. 2006). In deciding whether it is necessary to readminister warnings, the court
must look to the totality of the circumstances. Id. Factors include: 1) the amount of time
that has passed since the waiver; 2) any change in the identity of the interrogator, the location
of the interview, or the subject matter of the questioning; 3) any official reminder of the prior
advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5)
any indicia that the suspect subjectively understands and waives his rights. Id. Here, the
amount of time was approximately one and one half hours, which is significantly less than
time lapses previously upheld by our courts. See id. at 608 (“Neither the five-hour time lapse
nor any intervening event rendered Rogers incapable of remembering the prior advisement
of his rights.”). The defendant remained in the same room with the same detectives and
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questioned about the same incident. Although the detectives left to get dinner and he
received no reminder regarding his rights on their return, he was continuously in the company
of law enforcement. See id. at 607. The defendant had some college education and testified
that, as a firefighter, he received some training with police and felt he shouldn’t be talking
to detectives. Even if this argument were not waived, the warnings did not need to be
readministered under the factors outlined above, and this issue is without merit.
C. Testimony Regarding Prior Bad Acts
The defendant next challenges the trial court’s decision to admit the testimony of
Pastor Saulsberry regarding the defendant’s threat to the victim and the testimony of Officer
Tessaro regarding the broken window. The State asserts that this argument is likewise
waived.
A party claiming that the trial court has erroneously admitted evidence may not
predicate error on the ruling unless “a timely objection or motion to strike appears of record,”
stating the specific ground. Tenn. R. Evid. 103(a)(1). As noted above, “[n]othing in
[Tennessee Rule of Appellate Procedure 36] 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.” Tenn. R. App. P. 36(a). “The
failure to make a contemporaneous objection constitutes a waiver of the issue on appeal.”
State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). A party who invites or
waives error, or who fails to take reasonable steps to cure an error, is not entitled to relief on
appeal. State v. Banks, 271 S.W.3d 90, 170 (Tenn. 2008) (appendix) (citing Tenn. R.App.
P. 36(a)). Furthermore, Tennessee Rule of Appellate Procedure 3(e) requires that an error
in admitting evidence cannot be raised unless it was specifically stated in a motion for a new
trial.
The transcript of the trial does not contain any record of an objection to the testimony
of Officer Tessaro. While the motion for a new trial asserts that the trial court erred in
allowing “certain inadmissible evidence,” the defendant, at the hearing on the motion for a
new trial, explained that this referred to Pastor Saulsberry’s testimony. The defendant has
waived any error predicated on the admission of Officer Tessaro’s testimony.
The admissibility of Pastor Saulsberry’s testimony, on the other hand, was both raised
in the defendant’s motion for a new trial and apparently litigated at trial. The defendant
objected to the testimony based on the clerical privilege, on the rule against hearsay, and on
the fact that it was inadmissible character evidence under Tennessee Rule of Evidence
404(b). On appeal, the defendant has not pursued the argument that it was a privileged
communication which should have been excluded. See Ct. Crim. App. R. 10(b) (“Issues
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which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.”).
Under Tennessee Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts
may be admitted under certain conditions:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(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;
(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b). The trial court’s decision to admit evidence after substantially
following the procedures outlined in Rule 404(b) is reviewed for an abuse of discretion.
State v. Gilley, 173 S.W.3d 1, 5 (Tenn. 2005).
References in the record establish that the trial court held what the defense described
as a “lengthy” jury-out hearing to settle the hearsay2 and 404(b) issues. The hearing
apparently took place either the first or second day of trial. However, the transcript omits this
hearing. The appellant bears the burden of preparing a full and complete record for appellate
review. Banks, 271 S.W.3d at 169 (appendix); see Tenn. R. App. P. 24(b). “What is in the
record sets the boundaries for what the appellate courts may review, and thus only evidence
contained therein can be considered.” State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005).
When no evidence is preserved in the record for review, the appellate court may not consider
the issue. State v. Goodwin, 909 S.W.2d 35, 43 (Tenn. Crim. App. 1995). Where an
argument is noted but not transcribed and the record is missing a transcript of the proceedings
relevant to an issue presented for review or portions of the record upon which the party relies,
appellate review of the argument is waived. See State v. Mickens, 123 S.W.3d 355, 387
(Tenn. Crim. App. 2003). Given a transcript which is inadequate to provide a basis for
proper review, the appellate court must presume that the trial court’s determination of the
issue was correct. State v. Thompson, 131 S.W.3d 923, 927 (Tenn. Crim. App. 2003) (citing
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991)). The defendant supplemented
2
The record suggests that the trial court also excluded certain testimony from Rev. Saulsberry based
on hearsay.
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the record with certain transcripts, but the record ultimately does not contain the portions
relevant to the decision to admit Pastor Saulsberry’s testimony. The record simply does not
allow this Court to determine whether the dictates of Tennessee Rule of Evidence 404(b)
were followed or whether the trial court abused its discretion. Accordingly, this issue is also
without merit.
“A statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition” is an exception to the rule
against hearsay. Tenn. R. Evid. 803(2). While the record is missing the hearing in which the
trial court concluded that the statement about the threat was an excited utterance, Rev.
Saulsberry’s testimony does establish that the victim was hysterical and crying when she
called him about five hours after the event. The“length of time between a startling event and
the statement does not automatically preclude the statement’s being admissible as an excited
utterance,” but is simply relevant to the finding that the declarant was under stress. Banks,
271 S.W.3d at 117 (quoting Williams v. State, No. W2006-00605-CCA-R3-PC, 2007 WL
2120174, at *7 (Tenn. Crim. App. July 24, 2007)). Accordingly, when circumstances support
the finding that the declarant was under stress, even a longer lapse of time is not fatal to the
exception. State v. Stout, 46 S.W.3d 689, 699-700 (Tenn.2001), superseded by statute on
other grounds as stated in State v. Odom, 137 S.W.3d 572 (Tenn. 2004) (concluding that
declarant was under stress after twelve hours); Banks, 271 S.W.3d at 116-17 (concluding
that four- to six-hour interval did not preclude statement as excited utterance). Without the
hearing transcript, we cannot determine what factors the trial court considered, but we
nevertheless reject the defendant’s argument that a five-hour lapse per se excludes the
utterance from the exception. See State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997)
(listing factors relevant to the determination of stress). Accordingly we reject the defendant’s
arguments based on errors in admitting testimony.
Conclusion
Based on the foregoing, we conclude that the trial court did not err, and we affirm the
judgments of the trial court.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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