State of Tennessee v. Robert Jason Burdick ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 16, 2011 Session
STATE OF TENNESSEE v. ROBERT JASON BURDICK
Direct Appeal from the Criminal Court for Davidson County
No. 2008-B-1350 Seth Norman, Judge
No. M2009-02085-CCA-R3-CD - Filed April 18, 2012
A Davidson County jury convicted the Defendant, Robert Jason Burdick, of one count of
aggravated burglary and two counts of aggravated rape with bodily injury. The trial court
sentenced him as a Range I standard offender to a cumulative sentence of thirty-two years
in the Tennessee Department of Correction. On appeal, the Defendant argues that (1) the
evidence is insufficient to support his convictions for aggravated rape with bodily injury, (2)
the trial court erred by denying his pre-trial motions to suppress evidence, and (3) the trial
court erred by imposing partial consecutive sentences. Upon review, we affirm the
Defendant’s convictions and the length of his sentences but remand the case to the Criminal
Court of Davidson County for additional findings regarding consecutive sentencing.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part; Reversed in Part; and Case Remanded
D ONALD P. H ARRIS, S R. J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OBERT W. W EDEMEYER, J., joined.
John E. Herbison (at trial and on appeal), and Fletcher Long, and Carrie Gasaway (at trial),
Springfield, Tennessee, for the appellant, Robert Jason Burdick.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Roger
Moore, and Dana Shabayek, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Background
In May 2008, the Davidson County Grand Jury indicted the Defendant on thirteen
counts. This appeal concerns counts eleven, twelve, and thirteen, which stem from the
November 19, 2007, rape of B.S.1
At the trial, he victim testified that in November 2007, she lived alone at her home in
Donelson, Tennessee. She was widowed and had grown children, who no longer lived at
home. On November 18, 2007, she spent the evening watching television and fell asleep in
the den near midnight. She was awoken by a man standing behind her telling her to get up.
She recalled that she was not wearing her glasses when she woke up, and there were no lights
on in the room. She could see the man, however, due to light from an adjoining room. She
said that he was wearing a face mask, which she also described as a stocking cap with the
eyes, nose, and mouth cut out, and a “hoodie-type jacket.” She testified that she stood up,
and the man put duct tape over her eyes. He told her to undress, and she complied. He then
put duct tape around her wrists. The victim testified, “At that time he French kissed me and
then he kissed my breast and then he told me to lay down on the floor.” She followed his
directions. The man told her that he would use a condom, and she heard a package opening.
The man put his finger in her rectum and penetrated her vagina with his penis. The victim
testified that her focus was on staying alive, so she allowed the contact. She said that she
asked him to loosen her wrists, but he refused. She did not know whether he ejaculated or
not, but he eventually told her to get up. He told her that he was taking her to the shower,
which was at the opposite end of the house. When they reached the bedroom adjacent to the
bathroom, the man cut the tape from her wrists. He put her in the shower and turned on the
water. The man took the tape off of her eyes and told her to stay in the shower for ten
minutes. He left the room but returned to turn on the light before leaving again. The victim
testified that she did not stand under the water stream in the shower because she wanted to
preserve whatever evidence he might have left. She got out of the shower after she thought
that he had left. The victim testified that she swabbed her mouth with Q-tips and placed the
Q-tips in a plastic bag. She noticed that an ornament, previously located in a bedroom
window, had been moved. She dressed and left the house, intending to go to a hospital. On
her way, she called her brother, and he convinced her to return to her home to wait for the
police. She called the police, and they responded to her house. A police officer took her to
a hospital, and the hospital staff performed a vaginal exam, took swabs of her breast and
mouth, and took pictures. The victim gave the Q-tips from her house to the hospital staff.
She recalled having “duct tape markings around [her] wrist” and a small cut on her wrist
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It is the policy of this court to refer to victims of sexual assault by their initials.
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from when the man cut the tape off her wrists. The victim described the man as taller than
her and of average weight. While she could not tell his race visually, she believed that he
was Caucasian based on his voice.
On cross-examination, the victim testified that she had “[n]o physical injuries, other
than the tape.” She agreed that she meant that there was “a residue or a film” from the tape
left on her wrists.
Metropolitan Nashville Police (“MNP”) Officer Jacob Pilarski testified that he
responded to an aggravated rape call on November 19, 2007. He met the victim and her
brother at a Waffle House restaurant. The victim informed him that she had been raped at
her home, and he went with her back to her house. Officer Pilarski testified that the victim
had red marks on her face and wrists consistent with her report that the rapist used duct tape
on her eyes and wrists. He found one unlocked window in her house. Officer Pilarski
notified the sex crimes unit and transported the victim to the hospital for a sexual assault
examination.
MNP Officer Dylan Kinney testified that he responded to the victim’s home on
November 19, 2007. He stayed at the house while Officer Pilarski took the victim to the
hospital and remained on the scene while the identification section officers processed the
house.
MNP Officer Thomas E. Simpkins testified that, as part of the police department’s
identification unit, he participated in processing the victim’s home. In particular, he
photographed shoe impressions on the house’s air conditioning unit and lifted the
impressions with black powder and tape. He also photographed a patio chair with mud on
the legs and the holes in the yard underneath two windows that corresponded to the chair
legs. He testified that it appeared that the perpetrator stood on the chair and the air
conditioning unit to gain access to the victim’s home through a window.
Nurse Merrill Stopplebein testified that she performed the victim’s medical/legal
examination on November 19, 2007. Nurse Stopplebein recalled that the victim was calm
during her examination and that she had red marks on her wrists. The victim’s pelvic
examination was normal. As part of the medical/legal examination, Nurse Stopplebein
collected pubic hair combings from the victim, as well as vaginal swabs, perianal swabs,
labial swabs, and swabs of the victim’s mouth and breasts. She also took a sample of the
victim’s blood for comparative DNA purposes. She packed the items into a box, which was
sealed and locked into a cabinet until Detective Wiser took custody of it.
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On cross-examination, Nurse Stopplebein testified that she believed that she
prematurely marked the box on her report indicating that she did not observe any injuries on
the victim’s extremities. On the chart accompanying the report, she indicated that the victim
had injuries on her wrists. Nurse Stopplebein testified that the injuries were red marks from
the tape that the perpetrator used to bind the victim’s wrists. At the time of the examination,
she did not observe a cut or bruise on the victim’s wrists.
MNP Detective Jeff Wiser testified that on November 19, 2007, Officer Pilarski
apprised him of the victim’s complaint and the information the officers had gathered, and he
met the victim at the hospital. He interviewed her prior to her medical/legal examination.
The following day, he took the evidence box collected by Nurse Stopplebein to the
Tennessee Bureau of Investigation Crime Lab. He received the results approximately one
month later.
Detective Wiser testified that he inspected the victim’s house, along with other
officers. He recalled finding two condom wrappers in a ditch near the house and rolled duct
tape in another yard nearby. At the time, he did not know how long the items had been
outside or whether they were connected to the victim’s case. Another detective discovered
a Precious Moments figurine outside of a window of the victim’s home.
Detective Wiser testified that in April 2008, the Defendant’s name surfaced as a
suspect. Detective Wiser collected buccal swabs from the Defendant, which he gave to
Detective Kent McAlister, and participated in a search of the Defendant’s home and vehicle.
The police recovered a roll of duct tape, thirteen condoms inside a handgun case, a black ski
mask, a blue ski mask, and a blue toboggan from the Defendant’s home. They also recovered
a roll of duct tape from the Defendant’s vehicle. The detective recalled that the Defendant
had several handguns and “quite a few black clothes.” He testified that the police found
night vision goggles and anti-dog-barking devices in the Defendant’s bedroom. On cross-
examination, Detective Wiser admitted that the condom wrappers found outside of the
victim’s home were not the same type as the condoms found in the Defendant’s home.
MNP Detective Kent McAlister testified that he transported the Defendant’s buccal
swabs from the police department’s property room to the TBI crime lab. TBI Special Agent
Constance Howard, a forensic scientist, testified that she extracted DNA from the
Defendant’s buccal swabs to obtain his genetic profile, which she gave to Agent Chad
Johnson.
TBI Special Agent Chad Johnson, a forensic scientist, testified that he analyzed the
victim’s sexual assault kit. He stated that he found only the victim’s DNA on her gum
swabs, vaginal swabs, and labial swabs. He found a mixture of the victim’s DNA and male
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DNA on the anal swabs and tongue swabs and the same male’s DNA on the breast swabs.
Agent Johnson testified that the male DNA matched the Defendant’s genetic profile.
After the close of proof and deliberations, the jury found the Defendant guilty as
charged of aggravated burglary and two counts of aggravated rape. The trial court sentenced
him to three years for the aggravated burglary conviction and to sixteen years for each
aggravated rape conviction. The trial court ordered the Defendant to serve the aggravated
rape sentences consecutively, and the court imposed the aggravated burglary sentence
concurrently with the first aggravated rape sentence, resulting in a cumulative sentence of
thirty-two years.
Analysis
On appeal, the Defendant argues that the evidence was insufficient to support his
convictions for aggravated rape; that the trial court erred by denying his motion to suppress
evidence; and that the trial court erred by imposing partial consecutive sentences.
I. Sufficiency of the Evidence
The Defendant contends that the evidence presented at trial failed to prove that the
Defendant caused bodily injury to the victim during the rape, thus failing to meet the required
elements of a conviction for aggravated rape. He relies on State v. Tutton, 875 S.W.2d 295,
297 (Tenn. Crim. App. 1993), for the proposition that bodily injury must occur during the
rape rather than after the rape is accomplished in order for the offense to rise to the level of
aggravated rape. The State responds that the victim’s injuries were caused by the
Defendant’s use of duct tape to bind her during the rape.
For purposes of appellate review, a jury’s finding of guilty removes a defendant’s
presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992). Therefore, a convicted defendant bears the burden of
demonstrating to this court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This court reviews the evidence to determine whether “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); see State v. Evans, 108 S.W.3d 231, 236
(Tenn. 2003); see also Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from the
evidence. Carruthers, 35 S.W.3d at 558. The jury’s verdict approved by the trial judge
accredits the State’s witnesses and resolves all conflicts in favor of the State. State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). We do not attempt to re-weigh or re-evaluate the evidence
because questions concerning the credibility of the witnesses, conflicts in trial testimony, the
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weight and value to be given the evidence, and all factual issues raised by the evidence are
resolved by the trier of fact and not this court. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Likewise, we do not replace the
jury’s inferences drawn from the circumstantial evidence with our own inferences. Id.
As relevant to this case, aggravated rape is the “unlawful sexual penetration of a
victim by the defendant or the defendant by a victim” accompanied by the defendant’s
causing bodily injury to the victim. Tenn. Code. Ann. § 39-13-502(a). “‘Bodily injury’
includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness
or impairment of the function of a bodily member, organ, or mental faculty.” Id. § 39-11-
106(2).
The Defendant concedes that the evidence was sufficient to sustain a conviction for
rape but contends that any bodily injury occurred after the rape. He argues that, under
Tutton, the bodily injury must accompany the rape in order to elevate the offense to
aggravated rape, and any injury that occurs after the rape is insufficient to meet the
requirements for aggravated rape. In Tutton, the defendant raped the victim in a car, went
for a walk with her in a park, and then hit and stabbed her when they returned to the car. 875
S.W.2d at 296. On appeal, the defendant assigned error to the trial court’s refusal to charge
the jury with the lesser included offense of rape. Id. at 297. The appellate court ruled that
the trial court should have charged the lesser included offense of rape because the proof did
not show a temporal relationship between the rape and the stabbing. Id. The court further
ruled that the remedy was to modify the defendant’s conviction to rape. Id. 297-98.
Viewed in the light most favorable to the State, the evidence shows that the
Defendant’s unlawful sexual penetration of the victim was accompanied by bodily injury.
The Defendant entered the victim’s home without her permission, ordered her to remove her
clothes, bound her wrists and covered her eyes with duct tape, and raped her. The victim
testified that she asked the Defendant to loosen her wrist bindings, but he refused. The
victim also testified that she had marks around her wrists from the duct tape and a small cut
from the perpetrator’s removal of the duct tape. Officer Pilarsky observed red marks on the
victim’s face and wrists that were consistent with her report of the perpetrator using duct tape
on her eyes and wrists. Nurse Stopplebein also observed red marks on the victim’s wrists
from the tape used to bind the victim’s wrists. The evidence demonstrates that the Defendant
used duct tape to bind the victim’s wrists and cover her eyes in order to accomplish the
sexual assault. The use of the tape during the sexual assault established a temporal
relationship between the use of the tape and the crimes. The present case is distinguishable
from Tutton, in which the bodily injury was inflicted well after the sexual assault was
accomplished. See 875 S.W.2d at 297. We conclude that the evidence was sufficient to
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sustain the Defendant’s convictions for aggravated rape.
II. Motions to Suppress
The Defendant challenges the trial court’s denial of his pretrial motions to suppress
evidence seized by the police from his person, home, and vehicle. The State contends that
the Defendant waived appellate consideration of the trial court’s ruling because the record
does not contain the search warrant nor does it reflect that a warrant was issued pursuant to
the affidavit attached to the Defendant’s first motion to suppress evidence. The State has not
addressed the merits of the issue. We hold that the Defendant has not shown that the trial
court erred in denying the motions.
We consider, first, the State’s contention that the Defendant has waived appellate
consideration of the issue. The State is correct that the Defendant was required to prepare
a record that conveyed a fair, accurate, and complete account of what transpired with respect
to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d
557, 560 (Tenn. 1993). Likewise, the State is correct that there is no search warrant in the
record. The record reflects, though, that a nine page document titled “Affidavit in Support
of Application for Search Warrant” was attached to Defendant’s first Motion to Suppress.
The motion referred to the affidavit and stated that it was attached. The attached affidavit
contained detailed factual allegations and was signed by Detective Elliott. It was sworn to
before a general sessions judge and contained the judge’s signature.
The record reflects that the affidavit was offered as an exhibit by the Defendant at one
of the suppression hearings and that it was marked as exhibit 1, although that exhibit is not
part of the record that has been provided to this court. Defense counsel represented to the
court at that suppression hearing that “searches were carried out of [the Defendant’s]
residence, of his business, of his automobiles and of his person to obtain a DNA sample.”
Defense counsel also represented to the court that the affidavit that was attached to the
motion to suppress was the affidavit the police relied on to support the searches. The State
did not contest defense counsel’s representations at the hearing, and it argued that the
affidavit stated a sufficient basis from a which a judge found probable cause.
At the trial, Detective Wiser testified that pursuant to a search warrant, he obtained
buccal swabs from the Defendant and participated in searches of the Defendant’s home and
Jeep. He identified items seized during those searches, which were received as exhibits. We
conclude that the Defendant has not waived our consideration of the trial court’s ruling. See
State v. Bobbadilla, 181 S.W.3d 641, 642 (Tenn. 2005) (considering the merits of a
defendant’s appeal of the trial court’s denial of a motion to suppress where the search
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warrant was appended to the motion to suppress, but not received as an exhibit at the hearing,
and was part of the appellate record).
With respect to the merits of the Defendant’s issue, this court conducts a de novo
review of a trial court’s conclusions of law and application of law to facts when reviewing
the trial court’s decision on a motion to suppress. See State v. Walton, 41 S.W.3d 75, 81
(Tenn. 2001). However, we presume that the trial court’s findings of fact are correct unless
the evidence contained in the record preponderates against them. See State v. Daniel, 12
S.W.3d 420, 423 (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. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Moreover, the prevailing party is entitled
to the strongest legitimate view of the evidence and all reasonable and legitimate inferences
that may be drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).
A. Defendant’s Motion to Suppress Evidence Obtained as a Result of the Search Warrant
The Defendant’s first motion to suppress contended that the affidavit in support of the
search warrant did not contain evidence providing a basis for probable cause. In Tennessee,
it is well-established that an affidavit is necessary to the issuance of a search warrant. Tenn.
Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox, 292 S.W.2d 21, 23 (1956); Harvey
v. State, 60 S.W.2d 420 (1933). The affidavit must set forth on its face the facts which
establish probable cause before a warrant may be issued. Tenn. Code Ann. § 40-6-104;
Tenn. R. Crim. P. 41(c). The issuing magistrate must make a neutral and detached judgment
that probable cause is shown. See State v. Nolan, 617 S.W.2d 174, 175 (Tenn. Crim. App.
1981). The following requirements must be met to show adequate probable cause:
Probable cause requires reasonable grounds for suspicion, supported by
circumstances indicative of an illegal act. State v. Stevens, 989 S.W.2d 290,
293 (Tenn. 1999). To ensure that the magistrate exercises independent
judgment, the affidavit must include more than conclusory allegations from the
affiant. [State v. Carter, 160 S.W.3d 526, 533 (Tenn. 2005)]. The affidavit
must present facts upon which a neutral and detached magistrate, examining
the affidavit in a commonsense and practical manner, can determine whether
probable cause exists for the issuance of a search warrant. Id. In examining
the affidavit, our standard of review is limited to a determination of whether
the issuing magistrate had “a substantial basis for concluding that a search
would uncover evidence of wrongdoing.” State v. Ballard, 836 S.W.2d 560,
562 (Tenn. 1992).
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State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006).
As noted above, the conclusory allegations of an affiant are not sufficient to sustain
a warrant. Carter, 160 S.W.3d at 533. “‘Recital of some of the underlying circumstances
in the affidavit is essential if the magistrate is to perform his detached function and not serve
merely as a rubber stamp for the police.’” State v. Moon, 841 S.W.2d 336, 337-38 (Tenn.
Crim. App. 1992) (quoting United States v. Ventresca, 380 U.S. 102, 108-09 (1965)). “Thus,
in Tennessee, probable cause to support the issuance of the warrant must appear in the
affidavit and judicial review of the existence of probable cause will not include looking to
other evidence provided to or known by the issuing magistrate or possessed by the affiant.”
Moon, 841 S.W.2d at 338. “Tennessee law is clear that in determining whether or not
probable cause supported issuance of a search warrant only the information contained within
the four corners of the affidavit may be considered.” State v. Keith, 978 S.W.2d 861, 870
(Tenn. 1998) (citing Jacumin, 778 S.W.2d at 432). “If probable cause is absent, the
magistrate is not empowered to issue a warrant.” State v. Kamara L. Whittington, No.
W2007-00148-CCA-R3-CD, 2008 WL 1891450, at *2 (Tenn. Crim. App., at Jackson, Apr.
20, 2008). “The reviewing court’s standard should be whether, in light of all the evidence
available, the magistrate had a substantial basis for finding probable cause.” State v. Meeks,
876 S.W.2d 121, 124 (Tenn. Crim. App. 1993).
The affidavit states the following: Eleven “rapes and/or personal attacks” occurred
between March 1994 and December 2006, in homes in the Forest Hills area, by an individual
known as the “Wooded Rapist,” due to similarities in the crimes. The attacker was a white
male of average build in his 20s or 30s, wore dark clothes and gloves, and covered his face.
The perpetrator had a gun, knife, or “other cutting instrument.” The victims were bound and
blindfolded, and some were taken to another part of the property. DNA evidence was
recovered from eight of the attacks. DNA analysis showed that all of these attacks were
perpetrated by the same person. The perpetrator made statements to the victims that
indicated he had been watching the victims or their homes. In 2005, the victim of a burglary
and attempted rape assisted the Tennessee Bureau of Investigation (TBI) develop a sketch
of the perpetrator. The sketch was similar to the Defendant’s driver’s license photograph.
Around 1:00 or 1:30 a.m. on November 4, 2004, a neighbor saw one of the victims outside
with another person during one of the rapes. The perpetrator of the rape took the victim
outside during the assault. The following day, a witness reported having seen a man at about
7:00 p.m. the previous day. The witness described a white male, dressed in black, wearing
a black stocking cap, and standing behind a tree near a business that was behind the victim’s
home. About two blocks away, on April 28, 2008, a witness who was visiting a family
member on the same block as the street where the November 4, 2004 rape took place was
sleeping in a camper when she was awakened by a growling dog. She looked outside and
saw a man in dark clothing and a ski mask standing between two cars on the property and
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looking inside the cars with a flashlight. She yelled at the person, who said something
unintelligible and walked toward Williamsburg Road. The witness notified the police. A
police officer found a Jeep, which was registered to the Defendant, parked on a street within
walking distance. The Jeep’s hood was warm. He saw a red hat, a black bag, and beverage
containers in the Jeep. The officer remained in the area and, around 1:31 a.m., he saw the
Jeep leaving the area. He stopped the Jeep, which was driven by the Defendant. The
Defendant was wearing camouflage pants, a gray t-shirt with cut-off sleeves, tennis shoes,
and the red hat the officer had seen earlier in the Jeep. The Defendant was approximately
5'11", weighed about 200 pounds, and had a muscular build, brown hair, and blue eyes. The
Defendant told the officer that he had been visiting a friend named Ricky Douglas at a house
located near the place the officer saw the Jeep earlier. The Defendant said he parked on the
street because there were several other cars in the driveway. The Defendant refused to
consent to a search of the Jeep. Officers went to the home the Defendant identified as his
friend’s and spoke with one of its residents. She denied knowing the Defendant or that there
had been a gathering at the house earlier, although she identified six other people who were
staying overnight at the house. Police officers conducted hundreds of hours of nighttime
surveillance of the area in 2006 and 2007 and never saw anyone on foot in the neighborhood.
The Defendant’s physical appearance matched that given by the victims and a sketch
prepared by the TBI. The affiant believed there was probable cause to believe the Defendant
was the person on foot in November 2004 and the perpetrator of the attacks. The affidavit
identified the Defendant’s home by address, appearance, and photograph and requested
permission to search the home and its occupants, as well as outbuildings and cars on the
premises.
As we have noted, there were no witnesses at the hearing. Defense counsel offered
the affidavit as an exhibit, although the exhibit has not been transmitted to this court as such.
The trial court filed a written order denying the motion. In considering the sufficiency of the
affidavit, the court considered the facts alleged in the affidavit as well as those stated in a
transcript of the April 28, 2008 9-1-1 call. To the extent that the trial court considered the
9-1-1 transcript, it erred. The court was limited to the facts set forth on the face of the
affidavit. See Tenn. Code Ann. § 40-6-104; Tenn. R. Crim. P. 41(c); Keith, 978 S.W.2d at
870; Jacumin, 778 S.W.2d at 432.
The question becomes whether the trial court properly denied the motion despite its
erroneous reliance on matters outside the four corners of the affidavit. The written order
denying the first motion to suppress contains detailed findings of fact. The court noted the
proximity of the attacks and the similar descriptions of the perpetrator. It found that the
“[m]ost important” fact was that on April 28, 2008, the Defendant’s still-warm car was
parked a short distance from the address where a few minutes earlier, a witness saw a
suspicious person. The court also noted that the Defendant’s report of his whereabouts that
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night was contradicted by the resident whose home the Defendant said he had been visiting.
The court found that the Defendant’s clothing appeared to be dry, as if he had just changed,
although “it was evidently raining on April 28, 2001 [sic].” The court noted the similarities
of the clothing worn by the suspicious person seen that night, the “Wooded Rapist,” and the
perpetrator of the November 2004 rape on the same block. The court found that despite the
gap of almost four years between the November 2004 rape and the April 2008 suspicious
person sighting, the attacks had occurred sporadically over a fourteen-year period. The court
discredited as unreliable the evidence of the Defendant’s height of 5'11" as estimated by the
police officer who conducted the traffic stop and the 9-1-1 caller’s estimate that the person
looking in the cars with a flashlight was about 5'7". Considering these facts, the trial court
found that the magistrate had probable cause to issue the search warrant. Upon review, we
conclude that the affidavit provided sufficient facts to support a finding of probable cause,
the trial court’s erroneous reliance upon the 9-1-1 transcript notwithstanding. In so holding,
we note that aside from the information from the 9-1-1 transcript about the suspicious man’s
height, which the court discredited as unreliable, the facts the trial court recited in its order
that appear in the 9-1-1 transcript also appear in the affidavit.
B. Defendant’s Motion to Suppress the Evidence Obtained as a Result of the Traffic Stop
and the Search Warrant
After the trial court denied the first motion to suppress, the Defendant filed a second
motion focusing on the legality of the April 28, 2008 traffic stop. Attacking the evidence
obtained pursuant to the search warrant a second time, the Defendant contended that the
evidence was tainted as “fruit of the poisonous tree” because the investigation of the
Defendant and subsequent search warrant were based upon information obtained during the
illegal traffic stop. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “‘article 1, section 7 [of the Tennessee Constitution]
is identical in intent and purpose with the Fourth Amendment.’” State v. Downey, 945
S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). The
analysis of any warrantless search must begin with the proposition that such searches are per
se unreasonable under the Fourth Amendment to the United States Constitution and article
1, section 7 of the Tennessee Constitution. This principle against warrantless searches is
subject only to a few specifically established and well-delineated exceptions. See Katz v.
United States, 389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim.
App. 1980). Evidence discovered as a result of a warrantless search or seizure is subject to
suppression unless the State establishes that the search or seizure was conducted pursuant to
one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000).
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An exception to the warrant requirement exists when a police officer conducts an
investigatory stop based on a reasonable suspicion that a criminal offense has been or is
about to be committed. Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d at 218.
Reasonable suspicion is “a particularized and objective basis for suspecting the subject of a
stop of criminal activity[.]” Binette, 33 S.W.3d at 218 (citing Ornelas v. United States, 517
U.S. 690, 696 (1996)). Reasonable suspicion is determined based upon the totality of the
circumstances of the encounter. Binette, 33 S.W.3d at 218 (citing Alabama v. White, 496
U.S. 325, 330 (1990)). The police may stop a vehicle if they have either probable cause or
an “articulable and reasonable suspicion” that the vehicle or its occupants are subject to
seizure for violation of the law. See Delaware v. Prouse, 440 U.S. 648, 663 (1979); State
v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). An officer’s subjective intention for stopping
a vehicle is irrelevant, as long as independent grounds exist for the detention. See Whren v.
United States, 517 U.S. 806, 813 (1996); State v. Vineyard, 958 S.W.2d 730, 731 (Tenn.
1997).
At the hearing on the second motion, Brentwood Police Officer Elliot Hamm testified
that he was on patrol duty on the evening of April 27, 2008, through the morning of April 28,
2008. He recalled that it was raining intermittently that night. Officer Hamm testified that
on rainy nights his patrol duties focused on the investigation of the so-called Wooded Rapist.
On April 28 at approximately 12:30 a.m., the police received a suspicious person call in the
Meadowlake subdivision. The caller reported that a masked man was looking into vehicles.
Officer Hamm and five other officers responded to the area to look for a man on foot.
Officer Hamm testified that he observed a Jeep Grand Cherokee, with Tennessee license
plate number 771-QZJ, parked on the side of the road at an intersection. He stated that the
suspicious person was last seen walking toward that area and that the Jeep was the only
vehicle parked on the side of the road in the area. The Jeep was unoccupied, and the engine
was warm. Officer Hamm ran the tag and learned that the Jeep was registered to the
Defendant. He also obtained the Defendant’s driver’s license photograph. He continued
searching the area on foot and assisted other officers in stopping cars leaving the area. He
returned to the Jeep approximately one hour later and noticed that it was moving eastbound
on Meadowlake Drive. He initiated a traffic stop with his emergency equipment in order to
determine the driver’s identity. The driver stopped, and the officer approached the Jeep. The
driver, the Defendant, was alone and wore a red cap and a sleeveless gray shirt. Officer
Hamm said that he explained to the Defendant that the police were searching for a prowler
in connection with the suspicious person call. The Defendant told him that he had been at
a party at 5201 Meadowlake Drive visiting Ricky Douglas. Officer Hamm said the
Defendant became nervous during the stop. He checked the Defendant’s driver’s license and
obtained the Defendant’s phone number in order to complete a field interview card. Officer
Hamm asked the Defendant for permission to search his vehicle, and the Defendant refused.
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Officer Hamm spent three to five minutes with the Defendant and allowed the Defendant to
leave.
On cross-examination, Officer Hamm testified that the person who called about the
suspicious person said the person was dressed in all black and wore a ski mask. He said he
saw the parked Jeep within five minutes of being dispatched to the area. He said he saw the
Jeep in motion three-tenths of a mile from the location it had been parked. He stated that his
patrol car camera captured the stop of the Defendant but that the video was of poor quality.
He said that when he stopped the Jeep, he thought he was investigating a car burglar, not that
he had apprehended the Wooded Rapist. He said he investigated the Defendant’s claim to
have been at a party and learned that the Defendant had lied about being at the home. He
stated that there were four or five cars parked in the home’s driveway when he went to
investigate the Defendant’s claim but that there was still room in the driveway to park
another car.
The trial court denied the Defendant’s motions to suppress in a written order. In
considering the totality of the circumstances, the court noted that there were very few cars
in the area and virtually no foot traffic, that the Defendant’s Jeep was the only car parked on
the street in the neighborhood where the witness saw the suspect looking into cars, that the
hood of the Jeep was warm when it was parked on the street, that the traffic stop was in the
area where the Wooded Rapist attacked took place, that the Wooded Rapist watched his
potential victims in that area, and that the Wooded Rapist wore clothing similar to that the
witness described the suspect as wearing.
Upon de novo review, we hold that the Defendant has not shown error in the trial
court’s ruling. The evidence of record demonstrates that after a 9-1-1 call reporting a masked
person peering into cars was received, six officers searched the area on foot. When Officer
Hamm stopped the Defendant, he knew about the Wooded Rapist attacks in the area and that
a suspicious person wearing clothes similar to the Wooded Rapist’s had been seen in the area
that night. He knew that the Defendant’s unoccupied Jeep was parked on the side of the road
around the time the suspicious person was reported, that it was the only car parked on the
street in the area, and that it had been driven shortly before the 9-1-1 call was received.
These specific and articulable facts support the trial court’s finding that Officer Hamm had
reasonable suspicion to conduct a brief investigative stop of the Defendant. The Defendant
is not entitled to relief on this basis.
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III. Sentencing
Finally, the Defendant argues that the trial court erred by imposing consecutive
sentences on the basis of a finding that the Defendant was a dangerous offender without the
analysis necessary to support such a finding.
An appellate court’s review of a challenged sentence is de novo on the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-
401(d). The Sentencing Commission Comments to this section of the statute indicate that
the defendant bears the burden of establishing that the sentence is improper. When the trial
court follows the statutory sentencing procedure and gives due consideration to the factors
and principles relevant to sentencing, this court may not disturb the sentence. See State v.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008).
Generally, it is within the discretion of the trial court to impose consecutive sentences
if it finds by a preponderance of the evidence that at least one of following statutory criteria
apply:
(1) [t]he defendant is a professional criminal who has knowingly devoted the
defendant’s life to criminal acts as a major source of livelihood;
(2) [t]he defendant is an offender whose record of criminal activity is
extensive;
(3) [t]he defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) [t]he defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;
(5) [t]he defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;
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(6) [t]he defendant is sentenced for an offense committed while on probation;
or
(7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In the present case, the trial court simply found the Defendant was a dangerous
offender. “That finding required the trial court to analyze whether the Defendant’s criminal
behavior indicated ‘little or no regard for human life’ and whether he had ‘no hesitation
about committing a crime in which the risk to human life is high.’” State v. Allen, 259
S.W.3d 671, 689 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-115(b)(4)). In addition,
specific findings that an extended sentence is necessary to protect society and is reasonably
related to the severity of the offenses are prerequisites to consecutive sentencing under the
“dangerous offender” category in Tennessee Code Annotated section 40-35-115(b)(4). Id.,
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The general principles of sentencing
require that the length of sentence “be justly deserved in relation to the seriousness of the
offense” and “be no greater than that deserved for the offense committed.” Tenn. Code Ann.
§§ 40-35-102(1), -103(2); see State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
In this case, the trial court’s justification for imposing consecutive sentences was a
conclusory finding that the Defendant was a dangerous offender. The trial court indicated
that it accepted the State’s argument but did not explicitly make the analysis and findings
necessary under Allen and Wilkerson to categorize the Defendant as a dangerous offender.
Therefore, we remand this matter to the trial court solely to make the appropriate analysis and
findings to determine whether the imposition of consecutive sentencing is appropriate.
Conclusion
Based on the foregoing, we affirm the Defendant’s convictions but remand the case
to the trial court for sentencing proceedings in accordance with this opinion.
___________________________________
DONALD P. HARRIS, SENIOR JUDGE
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