State of Tennessee v. David Wayne Eady ( 2022 )

10/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 12, 2022 Session Heard at Austin Peay State University1
STATE OF TENNESSEE v. DAVID WAYNE EADY
Appeal from the Criminal Court for Davidson County
No. 2018-B-952 Cheryl A. Blackburn, Judge
___________________________________
No. M2021-00388-CCA-R3-CD
___________________________________
Defendant, David Wayne Eady, was convicted by a jury of eleven counts of aggravated
robbery and one count of attempted aggravated robbery. The trial court sentenced
Defendant as a repeat violent offender and imposed eleven concurrent sentences of life
without the possibility of parole. The trial court ran the life imprisonment sentences
concurrently with a fifteen-year sentence for the attempted aggravated robbery conviction.
On appeal, Defendant contends 1) the trial court abused its discretion in denying his motion
to sever the offenses; 2) the trial court abused its discretion in denying his motion to
suppress his statements; 3) the trial court abused its discretion in denying his motion to
disqualify the District Attorney General’s Office, 4) the evidence was insufficient to
support his conviction for aggravated robbery as charged in count eight of the indictment;
and 5) his convictions for aggravated robbery as charged in counts one and two of the
indictment violate Double Jeopardy as a matter of plain error. Because the facts and
circumstances support only one conviction for aggravated robbery as charged in counts
one and two, we merge the two counts, and remand for entry of amended judgments in
counts one and two reflecting the merger. In all other respects, we affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part, Reversed in Part, and Modified in Part.
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J. joined. CAMILLE R. MCMULLEN, J., filed a separate opinion concurring
in part and dissenting in part.
1
Oral Argument in this case was heard before students on the campus of Austin Peay State
University in Clarksville, Tennessee.
Jeffrey A. DeVasher, Assistant Public Defender (on appeal), Jared Mollenkoff, Julie
Bigsby, Assistant Public Defenders (at trial), Nashville, Tennessee, for the appellant, David
Wayne Eady.
Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior
Assistant Attorney General; Glenn Funk, District Attorney General; and Megan King, Joey
Clifton, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case involves eleven aggravated robberies committed in various convenience
stores located throughout Davidson County during the month of November 2017.
Defendant was originally indicted with seven counts of aggravated robbery on March 18,
2018. The State sought a superseding indictment on May 7, 2018, charging Defendant
with twelve counts of aggravated robbery. Less than one month after the indictment, the
State filed a notice of Defendant’s status as a repeat violent offender for purposes of
sentencing. The notice relied on five prior convictions for aggravated robbery.
Motion to Sever the Offenses and Suppression Motion
Defendant filed a motion to suppress his statement to two detectives made after he
was arrested for driving on a revoked license. The suppression motion alleged that
Defendant’s statement was involuntary because he was under the influence of heroin and
that his statement was the product of police coercion and a violation of his due process
rights under the federal and state constitutions.
Defendant also filed a motion to sever the offenses under Rule 14(b)(1) of the
Tennessee Rules of Criminal Procedure. He argued that joinder of the offenses was
improper because the crimes were not part of the same criminal episode and proof of one
count was not admissible in a trial of the other counts. The State argued that joinder of the
offenses was proper under permissive joinder Rule 8, Tennessee Rules of Criminal
Procedure.
The trial court held a bifurcated hearing on October 17, and 29, 2018, to litigate the
suppression motion and the severance motion. The State admitted into evidence a chart of
the twelve charged offenses based on the information provided in the police incident
reports, an aerial map identifying the locations and dates of the offenses, a collection of
surveillance footage screenshots of the robber, Defendant’s rights waiver document, a
DVD recording of the Defendant’s police interview before (Part I) and after a smoke break
-2-
(Part II) and a transcript of both interviews, and both an audio recording and transcript of
the smoke break.
At the first hearing held on October 17, 2018, Officer John Stanfield of the
Metropolitan Nashville Police Department (“MNPD”) testified that on December 11, 2017,
he pulled over a gold 2001 Toyota Camry for an expired license plate in the vicinity of
Glenrose and Nolensville in South Nashville. At the time of the stop, Officer Stanfield
was aware that the Camry was a vehicle of interest in an ongoing investigation by
detectives in the Midtown Precinct. Therefore, Officer Stanfield requested backup for the
stop. Defendant was driving the Camry and had passengers. There were outstanding
warrants for the passengers. Officer Stanfield did not search the Camry and he could not
recall whether the back-up officers searched Defendant’s Camry during the stop.
When Officer Stanfield frisked Defendant for weapons, he found 0.1 gram of heroin
in Defendant’s jeans which Officer Stanfield turned over to the property room. Officer
Stanfield denied that Defendant turned over any syringes during the stop. He explained
that had he found any syringes, he would have collected them and they would have been
listed on the property room sheet but then the syringes would have been photocopied and
disposed of because it is not safe to keep syringes in the property room as evidence.
Officer Stanfield did not recall Defendant slurring his speech, having glassy or
bloodshot eyes, or being slow in responding to his questions. He did not observe Defendant
“swallowing a lot” or “sweating.” He added that Defendant was appropriately dressed for
the weather. Because it was daylight, Officer Stanfield testified that he would have noticed
if Defendant’s eyes were dilated. Based on his observations, he did not ask Defendant
whether he was intoxicated and did not have Defendant perform any field sobriety tests.
Officer Stanfield placed Defendant under arrest and transported him to the Midtown
Precinct to speak with the detectives. On redirect examination, Officer Stanfield stated
that he would have had Defendant perform a series of field sobriety tests had he believed
Defendant to be under the influence.
On cross-examination, Officer Stanfield testified that his “face to face” interaction
with Defendant before and after his interview, was “a matter of minutes, not a matter of
hours.” Officer Stanfield confirmed that he transported Defendant to the downtown
booking station after the interview. He could not recall whether Defendant was charged
with having an expired tag. Officer Stanfield was not involved in the robbery
investigations and did not observe or participate in Defendant’s interview at the Midtown
Precinct. He learned of the alert on Defendant’s car from the Midtown Precinct the
morning of the arrest.
-3-
Jonathan McGowen, a detective in the Midtown Hills Precinct of the MNPD
testified that in November and December 2017, he was investigating a string of aggravated
robberies of commercial businesses. Defendant was developed as a suspect when his car
was observed in the parking lot of the November 24 robbery at the Delta Express/Mapco
at 440 Harding Place by the surveillance camera of a family medical clinic located next
door.2
Detective McGowen responded to the November 24 robbery and observed that the
description of the robbery was similar to the ones he was already investigating. During his
investigation, he reviewed footage from the surveillance camera of the medical clinic next
to the gas station and saw a late model gold Toyota Camry pull up to the store minutes
before the robbery. Both the initial driver and the passenger exited the Camry. The driver
put on a hoodie and entered the gas station and the passenger sat down in the driver seat.
The car had a sticker on the back, two hurricane style rims on the right side of the Camry,
and a paint blemish on the center of the hood. The driver side front hubcap was missing.
The video showed the driver exit the store and get into the passenger side of the Camry.
The Camry was seen fleeing the scene westbound toward Interstate 65.
Detective McGowan was alerted to another robbery in the Nolensville Pike corridor
the next day. Consequently, while patrolling the area near the corner of Nolensville Pike
and Tanksley Avenue, Detective McGowan observed a gold Toyota Camry matching the
description of the vehicle he had seen from the surveillance video of the robbery the day
prior. Detective McGowan saw Defendant standing at the rear of another gold Toyota
Camry which was broken down. Defendant then removed the license plate from the
working Camry and put it on the broken-down Camry. Detective McGowan testified that
there was another man seated in the working Camry. He approached the two men,
identified himself and spoke with Defendant and another man named Richard Black.
Detective McGowan called for police assistance to run a search on Defendant and Mr.
Black because he did not have his computer.
Defendant explained that he was switching license plates because he was making
payments on the broken-down Camry which belonged to a family member. Detective
McGowan testified that the Camry occupied by Defendant and Mr. Black matched the
distinctive features of the gold Camry seen at the robbery on November 24. According to
Detective McGowan, Defendant matched the physical description of the robber of the
November 24 robbery while Mr. Black matched the physical description of the man who
waited in the car during the robbery. Moreover, Detective McGowan learned that
Defendant was left-handed. He explained that the robber was left-hand dominant and used
2
We will identify the locations of the robberies as introduced in the record.
-4-
his left hand to hold the gun and carry out the robbery. Detective McGowan confirmed
that both men were cooperative and were permitted to leave.
Defendant gave his cell phone number to Detective McGowan which he later used
to obtain Defendant’s cell phone records. Detective McGowan received the records on
December 3, 2017. He reviewed the records and observed that Defendant’s cell phone
pinged off the cell tower located less than half a mile from the location of the November
24 robbery. Defendant’s cell phone also pinged near the area of the Nolensville Pike
robbery on November 25, as well as the November 18 robbery in Columbia, and the
November 26 robbery on Thompson Lane which were part of his investigation.
On December 5, 2017, two days after he received Defendant’s cell phone records,
Detective McGowan obtained a court order to install a GPS device on Defendant’s gold
Toyota Camry. Detective Armstrong installed the GPS later that day. Detective McGowan
acknowledged that no robberies were committed while the GPS was on Defendant’s car.
Detective McGowan also placed “an alert” for Defendant. Detective McGowan explained
that “an alert” informs officers that a person is wanted for questioning. On December 11,
2017, Detective McGowan received word from Officer Stanfield that he saw Defendant at
a McDonald’s on Nolensville Pike and asked whether Defendant should be brought in for
questioning. As requested, Officer Stanfield brought Defendant to the Midtown Hills
Precinct for questioning.
Detective McGowan was not present when Detective Armstrong reviewed the
waiver of rights form with Defendant. However, he observed the interaction from the video
recording room down the hall from the interview room. Defendant’s waiver of rights form
was exhibited to the hearing and showed that Defendant signed the form at 5:30 p.m. The
waiver of rights form has a section where the interviewer asks the interviewee whether he
is intoxicated or otherwise impaired. On the form, Defendant denied that he was
intoxicated. Detective McGowan explained that at the time Defendant was interviewed, it
was not department policy to record the reading of rights to an interviewee; thus it was not
recorded in this case. Department policy has since changed and the reading of one’s rights
is now recorded as part of an interview.
Detective McGowan testified that both as a police officer, and off duty, he has
observed people under the influence of alcohol and drugs. He was with Defendant over
two hours on the day of Defendant’s interview, and Defendant exhibited no signs that he
was under the influence. Detective McGowan recalled Defendant mentioning several
times that he was “clean,” had been released from a detox center a day before the interview,
and was planning to go to a more intensive rehabilitation center the next day.
-5-
Defendant mentioned that his mother was the president of a United Steelworkers
Union in Nashville. She had driven school buses for thirty years. Detective McGowan
found this fact to be important because at a robbery in Franklin on December 2, 2017, a
green hoodie with the words, “President of the United Steelworkers Union” was found at
the scene.
Detective McGowan stated that during Defendant’s interview, they paused for
Defendant to take a smoke break. Defendant spoke to Detective Armstrong during the
smoke break, and Detective Armstrong recorded their conversation on an audio device.
Detective McGowan became aware of the recording only “moments” before the hearing
and promised to supply the recording to the District Attorney’s Office the day after the
hearing.
At the end of Defendant’s interview, he was permitted to call his mother, and the
call was recorded. Defendant was heard telling his mother that “[he] could pass a drug test
right now” and that he had not used heroin “since [he] got out of detox.”
Detective McGowan denied that he or Detective Armstrong told Defendant that his
mother was at risk of being charged with the robberies. Defendant’s mother came up
during the interview because witnesses to the November 5 robbery spotted a white Mercury
Grand Marquis at the scene. Detective McGowan was aware that Defendant’s mother
drove a white Mercury Grand Marquis consistent with the eyewitness’s account of the
suspected robber’s vehicle and mentioned this to Defendant during the interview.
During the interview, Defendant told the detectives that his goal in committing the
aggravated robberies was to get money to fuel his opioid habit. Detective McGowan
recalled Defendant saying, that “the driving force” behind people committing aggravated
robberies was drugs. When he could not get employment, Defendant turned to “what he
knew,” robbery. Defendant stated that “[he] wasn’t doing it to get rich, [he] was just doing
it to get enough drugs, heroin, to hold [him] over for a couple of days.”
Detective McGowan was present for the entire interview except for the reading of
Defendant’s rights and the smoke break. None of the property taken during the robberies
was ever recovered. Defendant wore different hoodies for each robbery and discarded
them after each robbery. Defendant also discarded the gun he used which was a “fake”
gun he had painted black. Defendant did not reveal where he had discarded the gun.
On cross-examination during the hearing on the suppression motion, Detective
McGowan stated that he did not have a photograph or surveillance footage of Defendant’s
mother’s car at one of the robberies and did not present a photograph of her car to
Defendant during the interview. He maintained that he told Defendant that eyewitnesses
-6-
had seen a car similar to his mother’s at one of the robberies. Although there was
surveillance footage of the robbery at the November 20 Hermitage Twice Daily robbery,
charged in count nine, footage was not retrieved. The officer who was dispatched to this
robbery took a screenshot of the robber from the video. The screenshot was used in the
State’s chart of the offenses.
At the October 29, 2018 hearing, the defense continued its cross-examination of
Detective McGowan. Detective McGowan confirmed that the timeframe of Defendant’s
interview would be accurately reflected in the video recording. The interview was divided
by the smoke break in the middle. Detective McGowan agreed that Part I and Part II of
the interview lasted nearly two hours altogether. He also agreed that six times during Part
I of the interview, Defendant stated that he would not confess. When asked whether he
brought up Defendant’s mother in response to Defendant’s refusal to believe that “the truth
in this case is not going to set him free,” Detective McGowan stated that he would not
dispute his response if so reflected in the transcript of Part One of the interview.
Detective McGowan reiterated that he did not talk to Defendant during the smoke
break and that Defendant spoke only to Detective Armstrong. He denied that he spoke to
Detective Armstrong about what was said during the smoke break before commencing Part
II of the interview. Since the interview, the two detectives’ only discussion about the
smoke break was that Detective Armstrong had found the recording of the smoke break.
Detective McGowan did not recall whether Defendant’s eyes were red after the smoke
break but stated that Defendant appeared as if he had been crying. He clarified that the
smoke break was not recorded on Detective Armstrong’s body camera and consisted of an
audio recording only.
Detective McGowan had learned from his investigation that Defendant was staying
at his mother’s house and that his mother owned a Grand Marquis. Detective McGowan
explained that when he talked about Defendant’s mother, it was in the context of going to
Defendant’s mother’s house to look for evidence regarding the robberies. Detective
McGowan agreed that he told Defendant “more than just once” that Defendant’s mother
was “tied up” in the case because her car, a white Grand Marquis, was seen at one of the
robberies. He clarified that Defendant’s mother was not involved in the commission of the
robbery:
What I meant, “momma was tied up in that would’ve been that her car,” her
vehicle was used in it. So, his mother wasn’t present at the robbery, but her
vehicle would’ve been used in the commission of a robbery. So that’s what
I meant when I said tied up in it. It was that her vehicle alone was involved
in this incident, a vehicle that she owned.
-7-
Detective McGowan agreed that Defendant made no outright admissions during Part I of
the interview. However, Defendant made statements that matched evidence Detective
McGowan had gathered in the investigation. In Part II of the interview after the smoke
break, Defendant confessed to committing most of the robberies.
Detective McGowen stated that during his surveillance of Defendant, he did not see
Defendant use drugs. He was then directed to the following passage of Part I of the
interview wherein Defendant admitted to using drugs:
Defendant: If you been watching me the way you have been
watching me then you see me pull over and, and,
do the drugs.
Detective McGowen: Uh-huh.
Detective McGowen did not deny the accuracy of the transcript. However, he explained
that he never “actually saw [Defendant] use drugs” because he could not see inside
Defendant’s car.
The timeframe of the investigation included robberies that occurred between
November 2-30, 2017. Detective McGowen thought initially that Defendant had
committed a robbery which occurred on November 6. His investigation showed that
Defendant was not involved in that robbery. To his knowledge, Defendant was involved
in a robbery in Franklin on November 30. Due to its location outside of Davidson County,
the Franklin robbery was not included in Detective McGowen’s case. He agreed that the
time of day in which the robberies occurred varied. He agreed that the earliest robbery
occurred at 3:20 p.m. and the latest robbery occurred at 12:28 a.m. Detective McGowen
added that there was similarity among the twelve robberies in the manner in which the
robbery occurred and the description of the suspect. He testified that the suspect “always”
arrived in a vehicle, and not on foot. He explained that a K-9 unit was called to the scene
for several of the robberies to determine whether the suspect left on foot. The foot track of
the suspect came to a “stop point” indicating that the suspect got into a vehicle. Detective
McGowen acknowledged that evidence of a vehicle was limited to the investigation by the
K-9 unit and a description of a Grand Marquis sedan by an eyewitness because in the
majority of the robberies, there was limited external video surveillance.
Detective McGowen confirmed that Defendant stole cash in eleven of the twelve
robberies. In the November 2 robbery of the Dollar General, no cash was taken because
Defendant could not open the cash register. Detective McGowen agreed that Defendant
stole cartons of cigarettes in two of the nine robberies. Detective McGowen testified about
each robbery in chronological order regarding the description of the suspect. He
-8-
acknowledged that the victims of each robbery described the suspect “differently, so they
weren’t all exactly the same.” However, he maintained that “a majority” of the descriptions
were “pretty similar” despite a range regarding the age of the robber. Detective McGowen
agreed that the description of the robber’s clothes changed from robbery to robbery. He
specifically noted that the hats, hoodies, and facial covering varied in each robbery. He
also acknowledged that the robber’s manner of handling customers in the store varied
among the robberies.
In terms of investigating other potential suspects, Detective McGowen was aware
that a witness at the November 11 robbery at Walgreens on Donelson Pike described the
robber as a black man in the 9-1-1 call. However, he could not be certain how the witness
described the robber because he did not specifically investigate that robbery. Similarly, he
did not investigate the November 20 robbery at the Twice Daily where one of the victims
identified a “Dylan Bauer” as the potential suspect. Nor did he investigate the November
18 robbery at the Delta Gas Station on Murfreesboro Pike where a witness identified a
“James Worrick” as the possible suspect.
Defendant, age fifty-five, testified that he went as far as the tenth grade in school.
He acknowledged that he used heroin and stated that he was on heroin when he gave his
statement to the detectives on December 11. He stated that he used one-tenth of a gram an
hour before he was arrested. He injected himself in the leg with heroin. He was in his car
and was observed by the other occupants in the car. He used a syringe to inject himself
and deposited the syringe in the side console of his car. He testified that there were three
needles. He did not use all the heroin he had because he wanted to save some of it for
when he became “dope sick.” He testified that he still had one-tenth of a gram of heroin
in his pants pocket folded inside a lottery ticket when he was arrested. The police did not
find the heroin the first time Defendant was searched. According to Defendant, Officer
Stanfield told Defendant that if he revealed that he had a syringe, he would not be charged.
Based on that information, Defendant told Officer Stanfield that he had syringes in the side
console of his door. Officer Stanfield then opened the car door and ordered Defendant to
step out. Defendant testified that he saw Officer Stanfield and a second officer collect the
syringes and put them in a plastic bag. Defendant told the officers that the syringes were
his but he did not tell them he had used heroin that day. Defendant described how one-
tenth of a gram of heroin affected him physically:
It makes me kind of slow, it makes my mouth dry, get sweats sometimes,
sometimes I get chills. It depends. You know, it varies, sweats and chills,
and makes my eyes pupil. I mean my pupils get real small, and maybe a little
nauseous sometimes.
-9-
Defendant added that when he is high on heroin, he does not “think right” and makes poor
decisions. He stated that the effects last six to eight hours. He testified that he had injected
himself with heroin “an hour and a half to two hours” before the interview. He maintained
that he was high on heroin when he talked to Detective McGowen and Detective Armstrong
on December 11 and remained under the influence throughout the interview. Defendant
recalled being “scared” during the interview because he had heroin in his pocket. He
acknowledged that he told the detectives that he was clean and denied having used heroin.
He explained that he lied because he did not want the detectives to find the heroin in his
pocket. He also told the detectives that he had been to a detox facility which was true.
However, he stated that he had used heroin since he was released from the detox facility
and that his tolerance for heroin was less following detox.
Defendant’s drug use was “the only one” thing that embarrassed his mother. His
mother was aware that he had entered a detox facility. She believed that he had remained
sober when he was released. He confirmed that he talked to his mother on December 11
and told her that he had not used any drugs after he left detox because it would “break her
heart” given “all she did to get me into the detox program.” Defendant testified that he
lived with his mother who had COPD and had difficulty breathing and “getting around.”
He stated that they are “very close.” She had other children but Defendant was her
firstborn.
Defendant was aware of the three parts of the interview and confirmed that he talked
about his mother a lot during the interview. He recalled that he talked mostly to Detective
Armstrong about his mother. Based on the interview in Part I, Defendant was convinced
that surveillance footage had documented his mother driving her car as the getaway vehicle
in one of the robberies. Defendant denied that his mother was involved in the robberies.
He was very upset by the suggestion that his mother was involved in the robberies. He was
also convinced that the detectives would talk to his mother. He feared that such a
conversation would cause his mother to suffer a stroke or a heart attack.
After Part I of the interview, Defendant feared for himself and his mother. He
testified that he confessed to the robbery after talking to Detective Armstrong during the
smoke break:
Because when we went outside to smoke a cigarette, that’s when Det.
Armstrong really started working on me about being a momma’s boy and
had me crying out there, and he was talking about how big of a momma’s
boy he was too, and how he knew he would protect his mother at all cost and
all that. You know, he played me like that out there, being a momma’s boy,
had me crying and everything. And that’s when I told him that, you know,
yeah, I confessed to the robbery.
- 10 -
Defendant testified that being high made him “so emotional” during the smoke
break. He stated that he would not have been so emotional but for being high on heroin.
Defendant stated that he and the detectives did not talk about his mother’s car in Part II of
the interview because he had already decided to confess to the robberies during the smoke
break so the police would “leave [his] mother alone.” Defendant reiterated that he was
convinced the police were going to arrest his mother because he was told a witness had
identified his mother and her car at the scene of one of the robberies.
On cross-examination, Defendant testified that Officer Stanfield was untruthful
when he testified that no syringes were found in Defendant’s car. He confirmed that
Officer Stanfield did not have Defendant perform a field sobriety test. Defendant was not
charged with driving under the influence (“DUI”) and a DUI officer was not called to the
scene of the arrest. Officer Stanfield told Defendant that he would write him a citation for
driving on a revoked license.
Defendant testified that he has had ten to fifteen interactions with the police and
acknowledged that he had been interviewed several times similar to how he was
interviewed by Detective McGowen and Detective Armstrong.
Defendant first tried heroin when he was twenty-five years old and would often use
it “every day.” He was released from prison in 2015 and continued using heroin every day.
He restated that he was in detox for six days. He had been out two to three days when he
was arrested. He agreed that he did not tell the detectives in the interview that he was
experiencing chills. He also agreed that during the interview he was not visibly sweating
and did not vomit or ask to use the bathroom because he was sick. Although he had not
watched the interview, he conceded that his appearance and voice in the interview was
“probably” similar to how he sounded in his testimony at the hearing.
Defendant testified that he admitted to committing the robberies because he was
concerned that the police would go after his mother. They insinuated that his mother had
been seen driving a getaway car and he testified that detectives told him they were going
to arrest his mother. He acknowledged that when he was asked whether he was under the
influence during the recitation of his rights, he denied that he was. Defendant conceded
that he had not read the transcripts of the interview or watched the interview. He further
conceded that he did not remember “exactly everything that happened, every word that was
said.” He acknowledged that he told his mother on the phone call that “[he] could pass a
drug test right now.” He also acknowledged telling his mother on the same phone call that
he committed the robberies because he was on heroin.
- 11 -
When queried by the trial court, Defendant revealed that he had never taken a case
to trial. He denied that he had previously given a statement following an arrest. He
clarified that he previously had been questioned by the police about crimes he had
committed, but in those interviews, Defendant did not confess.
The State argued that the counts should not be severed because the crimes were part
of a continuing plan or conspiracy and committed towards a common goal or purpose of
procuring money to support Defendant’s heroin addiction. The defense argued that proof
of each robbery was not admissible in a trial of the other robberies to prove identity and
the location and the time-frame of the robberies were inadequate to support consolidation
to prove the suspect’s identity.
The trial court took the matter under advisement. On December 10, 2018, the trial
court entered a thorough and clear order denying both motions. In denying Defendant’s
motion to suppress his December 11, 2017 statement, the trial court credited the testimony
of Officer Stanfield and Detective McGowen. Each witness testified that Defendant did
not exhibit any signs of being under the influence or exhibit difficulty in responding to
questions. The trial court found that their testimonies about Defendant’s state of mind was
supported by the video recordings of Parts I and II of the interview, and the audio recording
of the smoke break. Based on the circumstances, the trial court concluded that “Defendant
knowingly and voluntarily waived his Miranda3 rights regardless of whether he was high
on opiates.” The trial court also rejected Defendant’s contention that the detectives coerced
him into making incriminating statements. The trial court again relied on the interview
recordings and the corresponding transcripts. The trial court found that Defendant’s
characterization of the interview was unsupported by the video of the interview. Based on
the totality of the evidence, the trial court found “no evidence of coercive police activity or
exertion of any improper influence to render Defendant’s confession” involuntary.
In denying Defendant’s motion for severance and holding that the counts should be
consolidated under Rule 14(b) of the Tennessee Rules of Criminal Procedure, the trial court
held that identity was a material issue in the case and that the multiple robberies constituted
a continuing plan or conspiracy. The trial court found that proof establishing each count
was “so related to each other that proof of one tend[ed] to establish the others.”
Prior to trial, Defendant filed a motion for the trial court to reconsider its decision
on the motion for severance taking aim at the trial court’s finding that identity was a
material issue because the court failed to offer analysis of the probative value of the
evidence. Defendant maintained his position that the robberies did not constitute a
continuing scheme or plan because “a shared motivation to get money for drugs is
3
Miranda v. Arizona, 384 U.S. 436 (1966).
- 12 -
insufficient to prove a common scheme or plan even when the offenses share some
similarities.” Without distinctive facts, Defendant argued that proof of any one robbery
was inadmissible in a trial for the other robberies.
Following a hearing and arguments, the trial court denied the motion to reconsider
the severance motion, holding that joinder was proper based on the similar nature of the
robberies, the narrow time frame in which the crimes were committed, the limited
geographical region where the offenses occurred, and that money from the robberies were
used to purchase heroin.
Motion to Disqualify Davidson County District Attorney’s Office
Defendant also filed a motion to disqualify the Davidson County District Attorney’s
Office (“Office”) from prosecuting the case because the elected District Attorney, Glenn
Funk (“General Funk”), had represented Defendant in a criminal case in Cheatham County
in 1989 wherein Defendant pled guilty to aggravated robbery and served a ten-year
sentence in the Department of Correction in exchange for dismissal of aggravated
kidnapping and aggravated burglary charges.
In its Notice of Defendant’s status as a repeated violent offender, the State relied on
Defendant’s 1989 aggravated robbery conviction to classify his status as a repeat violent
offender. Defendant alleged that the prosecutor, Megan King (“ADA King”) sought
permission from General Funk to seek a repeat violent offender designation and that
General Funk considered Defendant’s prior convictions, and approved ADA King’s
request to seek the designation. Defendant moved to recuse the District Attorney’s Office
from the case, or should the trial court recuse only General Funk, to strike Defendant’s
status as a repeat violent offender as an alternative remedy.
On February 19, 2019, the trial court heard arguments on several pending motions,
including Defendant’s motion to reconsider the severance motion, motion to disqualify the
District Attorney’s Office, and various other motions not the subject of this appeal.
Defendant testified that he was arrested in March 1989 in Cheatham County on
charges of aggravated robbery and aggravated kidnapping. His parents retained General
Funk to represent him on the two charges. Defendant stated that General Funk negotiated
a plea agreement whereby Defendant served a ten-year sentence in the Department of
Correction. Defendant recalled that he met General Funk two or three times to discuss the
facts of the case and specifically whether the State would be able to convict him as charged
in a trial. Defendant stated that he disclosed confidences to General Funk during the course
of the representation and that General Funk worked with the co-defendant’s attorney on
the case. Defendant testified that he told General Funk he was displeased with the outcome
- 13 -
of his case. Defendant did not believe there was evidence to convict him, yet he was talked
into taking the ten-year plea deal.
Defendant stated that he next saw General Funk in 2014 when he attended a driver’s
license reinstatement event at Antioch High School. Defendant introduced himself to
General Funk. Defendant testified that General Funk remembered him and his mother who
was with Defendant at the license reinstatement event.
Defendant testified that General Funk had represented Defendant’s brother in 1996
on charges of aggravated robbery in Davidson County, Rutherford County, and Williamson
County. Defendant recalled that his brother received a seventy-five-year sentence.
Defendant stated that his parents were unhappy with General Funk’s representation and
that his mother and his brother expressed their unhappiness to General Funk. According
to Defendant, his brother and General Funk got into an argument leaving the courtroom
about whether his brother should testify and regarding the length of his brother’s sentence.
Defendant admitted that because he was incarcerated, he did not observe what happened
in the courtroom between his brother and General Funk.
General Funk testified that when he was elected to the position of Davidson County
District Attorney, he contacted the Board of Professional Responsibility regarding ethical
issues related to the prosecution of former clients and was advised as follows:
They advised that it was not going to be a problem for our office to prosecute
folks who were former clients. That if there was a case where or when there
were cases where they were prosecuting former clients, that I could not
divulge any of the information about that case or anything, any information
that I had gotten about those earlier cases from my clients. But that as long
as no confidences were betrayed, that there is no ethical issue with the district
attorney’s office of the Twentieth Judicial District prosecuting cases against
clients that I had represented in my private practice.
General Funk explained that the decision to seek the death penalty or life without
the possibility of parole (“LWOP”) is made after discussing the case with a number of
people including himself and both deputy district attorneys. By contrast, the decision to
seek a sentence of LWOP based on a repeat violent offender designation is made at “the
team leader level.” General Funk stated that the Office policy for seeking enhanced
punishment of LWOP was put in place by his predecessor since at least 2004.
In Defendant’s case, General Funk testified that ADA King requested a meeting
wherein she expressed her intent to seek LWOP and gave a two-to-three-minute synopsis
about the case with respect to the charges and the criminal history. He did not think that
- 14 -
ADA King showed him the documents she filed with the notice for repeat violent offender
but he did not recall specifically. General Funk was “sure” ADA King stated Defendant’s
name but he did not recognize it. Although he did not recall running into Defendant at
Antioch High School, he did not dispute Defendant’s testimony because he had attended a
number of driver’s license reinstatement events at a high school or middle school.
When General Funk first discovered that he had previously represented Defendant,
he did not recall the charge or the county in which the representation had taken place. He
remembered Defendant’s mother, Mary Eady, who he described as “awesome.” He added,
“I don’t know what all has happened in [Defendant]’s life, but I know that . . . he was born
to a great mother.” When asked to review one of the documents attached to the notice,
General Funk denied that he saw it when ADA King first talked to him about the case. He
explained that he would have remembered seeing the document during their conversation
because he would have seen his name at the top of the document and would have
recognized his signature. General Funk identified several documents that were filed during
his representation of Defendant: a Memorandum of Authorities in Support of Motion to
Suppress Identification, a Motion to Suppress Identification, Petition for waiver of trial and
request for acceptance of guilty plea, a discovery request, and the judgment.
General Funk stated that he did not recall anything about his representation of
Defendant “other than [Defendant]’s face[.]” For instance, he did not recall the facts
surrounding the motion to suppress the pretrial identification. He recalled only that
Defendant’s co-defendant in the prior aggravated robbery was represented by Suzanne
Lockert who is now a judge in Cheatham County.
General Funk did not recall “anything about” his representation of Defendant’s
brother, Mark Scott Eady. He explained that he had “no idea” Defendant had a brother
until he read the motion to disqualify the Office. It was only upon reviewing the motion
that he learned that he had in fact represented Defendant’s brother. General Funk identified
several documents related to Defendant’s brother’s case.
General Funk affirmed that there is “a document” which discusses the repeat violent
offender designation and how the decision to seek the designation is “a team leader
decision.” He stated that the office does not keep statistics on the number of times an
assistant district attorney seeks the designation in the office. He did not think the
designation was sought “more than a handful” of times during his tenure, but he added that
“because [he is] not usually notified, [he does not] know.” He testified that “[Defendant’s
case] was the only time in four and a half years” that he was notified about seeking the
designation.
- 15 -
On cross-examination, General Funk confirmed that he was unaware that ADA
King was talking about a former client when talking about Defendant’s case. He agreed
that it was “possible” that ADA King did not identify Defendant by name. General Funk
stated that ADA King “usually” keeps a file with her when talking about a case and refers
to it for clarification but does not hand him any documents.
General Funk did not recognize that the Office was prosecuting Defendant when he
and ADA King had their initial conversation about the case. He stated, “If his name had
come up during our conversation, it didn’t register that our conversation was about
someone who I had represented thirty years ago.” He denied that the fact the Defendant
and his brother were former clients of his had any bearing on the decision of the Office to
file a notice for the repeat violent offender designation. He recalled that “the decision was
actually made by [ADA King] as the team leader” although he acknowledged that ADA
King “did talk to [him] about the case[.]” General Funk believed that ADA King had made
the “right decision on behalf of the [O]ffice.”
The trial court asked General Funk several questions about the repeat violent
offender statute, Tennessee Code Annotated section 40-35-120. First, the trial court asked
whether the statute “eliminates a great body of people” from qualifying as a repeat violent
offender because a qualifying defendant must have served “separate periods of
incarceration” and multiple offenses committed in one episode constitutes only one
qualifying conviction. General Funk agreed with the trial court that few people would
qualify for the designation. Second, the trial court asked whether the statute requires the
court to mete a sentence of LWOP once it is determined that a defendant has qualifying
convictions:
It appears that it is a mandatory situation for the court. And that is once it is
determined by the court that they have the right qualifiers and they are then
convicted, the court has no choice but to sentence them to life without the
possibility. And it further says that the court shall refuse to accept a plea
agreement that fails to recommend that a defendant with a sufficient number
of designated prior convictions be sentenced as a repeat violent offender.
So the law as I read it, and correct me if I’m wrong, is that if you all had a
plea petition where somebody who has prior, two prior separate convictions,
and there’s another one right in front of me, I can’t take it. Because you
haven’t given a notice. Isn’t that what it says - the court shall refuse to accept
a plea agreement if your agreement is to another aggravated robbery?
General Funk agreed that in the preceding scenario, a trial court appears to lack discretion
and must reject such a plea agreement. General Funk further agreed that although a court
- 16 -
has little discretion under the statute but to reject a plea agreement where the State fails to
recommend that a defendant with a sufficient number of designated prior convictions be
sentenced as a repeat violent offender, nothing in the statute precludes the State from
modifying the indicted offense to avoid the repeat violent offender designation and the
mandatory sentence of LWOP.
On redirect examination by the defense, General Funk confirmed that he had another
conversation with ADA King about the case the week before the hearing on the motion to
disqualify the Office. He recalled being “surprised” that a former client was the subject of
the intended designation. He asked her whether they had talked about the fact that he had
represented Defendant in their earlier conversation, and ADA King replied that they had
not. When asked whether their conversation was limited to the motion to disqualify or
included “any other aspect of prosecution,” General Funk replied:
There may have been just (sic) remind me again why we were seeking life
without parole, and she would’ve gone through what his record was and what
these events that lead to this indictment were. But it would’ve been less than
a minute on that topic. It was a courtesy review of what your claims were
and what the case was about.
At that meeting, General Funk restated his opinion that it was proper for the Office to seek
LWOP in Defendant’s case.
During the argument portion of the motion hearing, the defense stated that “the only
question before the court is whether or not the disqualification of [General] Funk should
be vicariously applied to the remainder of his [O]ffice based on his prior representation of
[Defendant] and his involvement in the current case.” The defense urged the trial court to
consider the motion by using the analysis set forth in State v. Willie Claybrook, No. 3, 1992
WL 17546 (Tenn. Crim. App. Feb. 5, 1992), State v. Tate, 925 S.W.2d 548 (Tenn. Crim.
App. 1995), and State v. Stephen Berline Orrick, 592 S.W.3d 877 (Tenn. Crim. App. 2018),
and Rule 1.11 of the Tennessee Rules of Professional Conduct. The defense argued that
General Funk “engaged in this case in a meaningful manner” when he reiterated his opinion
to ADA King that it was appropriate for the Office to seek the repeat violent offender
designation in Defendant’s case after he learned that he had previously represented
Defendant.
The trial court pointed out that the defense was “overlooking the mandatory nature
of the statute” and pushed back on whether prosecutors retain discretion under the statute:
The Court: So the only way not to get involved in this statute is if they
decline to prosecute him on aggravated robbery.
- 17 -
The defense: Yes. But the statute does not take away discretion entirely from
either [General] Funk or [General] King. They have –
The Court: Well, doesn’t it? If – they’re being prosecuted on aggravated
robbery, there is no choice.
The defense: If they choose to continue to prosecute them under aggravated
robbery.
The Court: Yeah. I was going to say. So what you’re saying is because
they are following the fact that it’s alleged to be an aggravated
robbery, that, because it’s mandatory. There’s no discretion
here if the prosecution is for aggravated robbery.
The defense argued that prosecutors possess discretion by choosing to seek the designation
and by having the authority to amend an offense in order to offer a plea that does not invoke
the statute. The trial court noted that “a finite set of people” qualify as a repeat violent
offender due to the statute’s requirement of having two or more qualifying convictions
involving separate periods of incarceration.
The trial court took the matter under advisement and issued a written order denying
the motion to recuse the Davidson County District Attorney’s Office from prosecuting the
case. In its order, the trial court accredited General Funk’s testimony and ADA King’s
statement that ADA King did not state Defendant’s name during their initial conversation
about the case. The court held that “[r]egardless” of whether Defendant was identified in
the initial conversation, the court found “no basis for recusal in light of the mandatory
nature of the repeat violent offender sentencing statute.” The trial court focused heavily
on the statute and found that Defendant qualifies “unequivocally” as a repeat violent
offender based on his 1983 aggravated robbery conviction in Cheatham County and his
three 1993 aggravated robbery convictions in Davidson County.
Trial
Count 12 – Dollar General – Eighth Avenue South – November 2
Defendant was charged with eleven counts of aggravated robbery and one count of
attempted aggravated robbery. At trial, the State offered proof of the twelve counts in
chronological order. Brenda Wilson testified that on November 2, 2017, she was working
at the Dollar General at 1201 Eighth Avenue South when a “tall” man wearing a black
mask entered the store around 5:45 p.m. armed with a gun. When the gunman approached
- 18 -
her at the cash register while pointing the gun directly at her, Ms. Wilson testified that she
“took off running” to a nearby gas station. The employees there called the police. Ms.
Wilson could not identify the robber, and she did not know whether he took anything. She
believed that the robber’s gun was real. The robbery was captured on the store’s
surveillance camera. This footage was exhibited to the jury. Ms. Wilson identified herself
as the person seen behind the store cash register.
On cross-examination, Ms. Wilson confirmed that there were two other people
working in the store at the time of the robbery, a manager and an employee on her first day.
Ms. Wilson clarified that she considered the robber to be “tall” because he was taller than
her. Ms. Wilson testified that she is “five-six, five seven.” She could not describe how
much taller the robber was than her. She was the only person in the front of the store. She
explained that her manager usually remains in the office.
Seven latent fingerprints were lifted at the store but lacked comparative value. The
features on the impressions were insufficient to compare and determine whether they
matched Defendant’s fingerprints. According to the cell phone data records, Defendant’s
cell phone communicated with a cell phone tower in the area of the Dollar General at 6:26
p.m. on November 2, 2017.
Count 10 – Walgreens – Nolensville Pike – November 5
On November 5, 2017, Jonathan Latham was working at the Walgreens at 2819
Nolensville Pike when a man dressed in “a darkish hoody” and sporting black gloves
entered the store. Mr. Latham testified that the gloves stood out because the weather was
“warmer than usual” that day for gloves. Mr. Latham suspected that “something was about
to go down” because the man was wearing sunglasses and a bandana over his face. As he
suspected, the man approached Mr. Latham at the cash register brandishing a black pistol
in his left hand. The man held the gun “to his side,” but pointed it at Mr. Latham and told
Mr. Latham, “this isn’t a joke, give me the f****** money.” The robber ordered Mr.
Latham to give him the money inside the register and underneath the register. Mr. Latham
gave the robber the money as ordered. Mr. Latham estimated that the robber stole around
$400. The robber left as the assistant manager was dialing 9-1-1. From where he was
standing, Mr. Latham could not tell which direction the robber went or whether the robber
got into a vehicle.
Mr. Latham was unable to identify the robber because he could only see the man’s
forehead. On cross-examination, Mr. Latham revealed that the man was white with
“wrinkles in his forehead.” Mr. Latham could not make out the make or model of the gun
but “[a]bsolutely” believed that it was real. Multiple cameras inside the store captured the
incident from various angles. Mr. Latham testified that he watched one of the surveillance
- 19 -
recordings which was played for the jury. On cross-examination, Mr. Latham
acknowledged that he could not recall whether the robber’s hoody had a design because
once he saw the gun, he was not attentive to the robber’s clothing. The robbery lasted “a
minute or two.” He agreed that if the surveillance footage showed that the robber was at
the counter less than twenty seconds, the clock was accurate. In his interview, Defendant
confessed to committing this robbery.
Count 11 – CVS – Nolensville Pike – November 9
On November 9, 2017, Shino Hussain was working the register at the CVS
pharmacy at 4709 Nolensville Pike when a man in a “hooded shirt” entered the store at
3:20 p.m., armed with a gun and demanded money. Ms. Hussain recalled being in “shock”
because the man repeatedly demanded that she “give [him] the money.” She could not
identify the man because his face was covered. She recalled only that he was “[p]ossibly
Caucasian.” The store’s multiple surveillance cameras documented the robbery. The
surveillance footage of the robbery was played for the jury. While it was being played,
Ms. Hussain identified the portion of the footage where the robber changes the gun from
hand to hand.
On cross-examination, Ms. Hussain confirmed that on the surveillance footage,
another female employee could be seen at the register right before the robber entered the
store. Ms. Hussain testified that this employee ran away when she saw the man robbing
the store but managed to dial 9-1-1. Ms. Hussain recalled telling the police that the robber
was tall and was around six feet in height. She added that his face was covered “except his
nose.” Ms. Hussain agreed that she may have said that the robber’s face was either
sunburned or “uniquely red.” She confirmed that the CVS was located on the corner of
Nolensville Road and Haywood Lane.
In his interview, Defendant admitted to robbing the CVS located at the end of
Haywood Lane. He recalled that the clerk was either a Hispanic or Arabic woman.
Defendant’s cell phone data showed that he made nine calls on his phone from 3:04-3:58
p.m. These calls were connected to towers in South Nashville near the CVS.
Fingerprints lifted at the store had no value for comparison. The features present in
the fingerprint impressions were insufficient to render a definitive conclusion of
identification or exclusion and therefore insufficient to determine whether the lifted prints
matched Defendant.
Counts 1 and 2 – Walgreens – Donelson Pike – November 11
- 20 -
Jazlyn Oropeza, Josianne Hunter, and Beverly Adcock were working at the
Walgreens located at 518 Donelson Pike on November 11, 2017, around 7 p.m. when a
white man dressed in a gray “hoody” or “sweater” robbed the store. Ms. Oropeza testified
that the man pointed the gun at her and Ms. Adcock and threatened to “bust[] [their] head[s]
off” unless they gave him all the money in the registers. The man first came to Ms. Adcock
and then to Ms. Oropeza. The gunman pointed the gun at Ms. Hunter when she came to
help Ms. Oropeza open her register. Ms. Hunter opened the register and gave the money
to the gunman. Ms. Oropeza testified that the robber stole upwards of $300 or more.
According to Ms. Oropeza, the gunman stood five feet ten inches and weighed 150 pounds.
He wore glasses and a black mask which covered his face below the nose. The gun
appeared to have some scratches and looked real to Ms. Oropeza. After the gunman left,
the three employees went to the back of the store and dialed 9-1-1.
Surveillance footage of the robbery was played for the jury during Ms. Oropeza’s
testimony. Ms. Oropeza pointed out how the robber held the gun in his left hand. She
identified herself, Ms. Adcock, Ms. Hunter, and the robber on the video. The footage also
included a view outside of the store.
On cross-examination, Ms. Oropeza added that the robber wore jeans. She
confirmed that the robber went back and forth between her register and Ms. Adcock’s
register. On the video, the robber is seen standing next to a Red Box machine.
Ms. Hunter testified that she was working at the photo counter in the store when she
saw a man walk in and point a gun at Ms. Oropeza at the front counter and order her to
give him money. Because Ms. Oropeza did not appear to understand what was happening,
Ms. Hunter walked over to help her open the cash drawer. The man then pointed the gun
at Ms. Hunter, who opened the drawer and gave him money. She believed he took around
$1,500. She testified that the robber was “definitely white.” Because he was shorter than
her, she stated that he was about five feet, nine and a half inches tall. He wore a gray
sweater, black pants, and a face mask. She believed that the gun was real. Ms. Hunter
stated that she did not see or hear the robber say or do anything to Ms. Adcock. Ms. Hunter
also watched the store’s surveillance footage of the robbery and affirmed that the footage
accurately reflected what had occurred that day.
Ms. Adcock testified that the robber first approached Ms. Oropeza because she was
stationed at the main register. Ms. Adcock was across from her at another register. Ms.
Adcock recalled that the man entered the store, pointed the gun at Ms. Oropeza’s face and
demanded that she “give [him] the money.” According to Ms. Adcock, Ms. Oropeza
replied, “Are you kidding me?” Ms. Adcock advised Ms. Oropeza to “do what he says.”
Ms. Oropeza could not open the cash drawer because the register had to be “cleared off.”
While Ms. Oropeza was struggling with her register, the robber looked at Ms. Adcock and
- 21 -
demanded the money from the drawer and below the drawer. He made the same demand
to Ms. Oropeza. After he grabbed money from Ms. Oropeza’s register, the gunman
“reached in” and grabbed money from Ms. Adcock’s register and quickly exited the store.
Ms. Adcock could not describe how the robber looked but remembered what he wore: a
hoody, a toboggan, and sunglasses. She testified that the robber had a pistol and the barrel
of the gun was slightly smaller than a quarter. Like her fellow employees, she believed the
gun to be real. Ms. Adcock recalled that the robber arrived and left the store on foot. She
stated that the robber went to the right out of the store in the direction of a K-Mart. Ms.
Adcock confirmed that she dialed 9-1-1. She listened to the audio recording of the call and
watched the surveillance footage of the robbery. She testified that the surveillance footage
accurately documented the robbery.
On cross-examination, Ms. Adcock testified that the robber wore a light-gray or
light-blue hoody. The toboggan was navy blue which the robber wore underneath the
hoody. She recalled that the robber was taller than her. Ms. Adcock testified that she is
five feet tall.
In his interview, Defendant stated that he waited for the store to empty out of
customers because he did not want to harm anyone. He recognized himself in the
screenshots of the surveillance footage taken outside the store. He stated that he was
wearing a gray coat.
Count 3 – Delta Express/Mapco – Old Hickory Boulevard – November 15
Timothy Bushong testified that at approximately 9:45 p.m., on November 15, 2017,
a man entered the Delta Express/Mapco at 15131 Old Hickory Boulevard, pointed a pistol
at him and demanded money from the register. Mr. Bushong took money out of the register
and put it in a bag as ordered but the man said “that wasn’t enough money” and ordered
Mr. Bushong to give him the money beneath the cash register drawer. Mr. Bushong
informed the gunman that there was no money under the drawer and raised it to show him.
The man knew the store had a safe because he ordered Mr. Bushong “to drop a tube out of
it.” Mr. Bushong explained that the safe contains a tube which holds additional cash
because only a certain amount of money is kept in the register. Mr. Bushong pushed a
button, which dropped a tube holding additional cash from the safe. He placed the money
from the tube into the bag, which the man took and exited the store. Mr. Bushong believed
that the man took $160 to $170. Mr. Bushong was unable to describe the man because the
man was wearing a hoody which covered most of his head, sunglasses which concealed his
eyes, and a handkerchief or bandana over his face. He was able to determine that the man
was white because there was space between the handkerchief and the sunglasses exposing
his skin. Mr. Bushong added that the man also wore gloves and left the premises on foot.
Mr. Bushong watched the footage from the store’s surveillance cameras which was played
- 22 -
for the jury during his testimony. He affirmed that the footage accurately documented what
had occurred in the store.
On cross-examination, Mr. Bushong confirmed that he gave a description of the
robber to the 9-1-1 dispatcher and the police officer who was dispatched to the scene. Mr.
Bushong testified at the preliminary hearing where he described the robber as five foot six
or five foot seven. Mr. Bushong stated that the doors to the store have a height indicator.
He relied on the height indicator as the man left the store. He also looked at the height
indicator on the video as the man is seen leaving the store. Mr. Bushong testified that he
has previously had to use the height indicator on the door to judge a person’s height. He
could not give a judgment on the man’s weight. Mr. Bushong agreed that the surveillance
footage from outside the store did not show the man get in or out of a vehicle. As for the
gun, Mr. Bushong acknowledged that he is not familiar with guns but did observe that the
man’s gun appeared to be an older model. He explained that the newer guns are sleeker in
shape. He has observed guns over the years and observed a change in design.
When shown surveillance photographs from the incident during his interview,
Defendant told police, “That’s me. So I guess I did that.” In addition, analysis of
Defendant’s cell phone data showed that his phone communicated with cell towers near
the Delta Express/Mapco several times between 9:40 p.m. and 9:58 p.m. He made two
outgoing calls at 9:49 p.m., 9:50 p.m., and 9:53 p.m.; and received calls at 9:54 p.m. and
9:58 p.m.
Count 4 – Delta Gas Station – Murfreesboro Pike – November 18
Raphael “Ralph” Donald Calhoun testified that on November 18, 2017, he was
placing cigarettes on display as part of his duties as an employee of the Delta Gas Station
located at 2601 Murfreesboro Pike around 5:30 p.m., when a man, wearing a mask, entered
the store, pointed a “high point firearm” at him and demanded money. Mr. Calhoun
complied, after which the robber demanded a “ca[s]e of cartons of cigarettes.” The robber
then ordered Mr. Calhoun to lie on the ground and count to fifty as he made his escape.
Mr. Calhoun described the robber as a “taller Caucasian” man weighing 150-200 pounds.
He testified that the robber stood six feet, two inches. Mr. Calhoun acknowledged that he
may have told the police on the night of the robbery that the robber was five feet, eleven
inches tall. He explained that it was a “difficult night,” and his focus was on the robber’s
clothes because his face was well-concealed by the mask. Mr. Calhoun believed that the
robber’s gun was real. Mr. Calhoun estimated that the robber took twenty-two cartons of
cigarettes and about $120. Mr. Calhoun explained that there are ten packs of cigarettes in
one carton and twenty-two cartons of cigarettes in one case or box. Mr. Calhoun stated
that the robber took a variety of light brand cigarettes such as Pall Mall’s, Marlboro’s,
L&M’s, Kool’s, and Winston’s. Mr. Calhoun was aware that the robber came from the
- 23 -
direction of the Stonewood Villages neighborhood. Because he was on the ground, he was
unable to watch the robber leave.
The store’s many surveillance cameras documented the robbery. Mr. Calhoun
affirmed that he watched the footage which contained both video and audio. While the
footage was played for the jury, Mr. Calhoun pointed out that the robber held the gun in
his left hand. Based on the color of the cigarette boxes in the carton taken by the robber,
Mr. Calhoun opined that the robber took Newport’s, Pall Mall’s, L&M’s, and Marlboro’s.
He confirmed that he counted to fifty before getting up and dialing 9-1-1.
On cross-examination, Mr. Calhoun recalled telling the 911 dispatcher that the
robber was thin, stood five foot eleven inches tall, and wore a green suede jacket, a “fake
[brand] of Oakley’s” sunglasses, and a dark, green mask. He gave the police the same
description and also told the police that the robber weighed about 150 pounds, and was
between the age of thirty-five and forty-five. Mr. Calhoun clarified that the robber
demanded money from both the cash drawer and the safe.
Mr. Calhoun acknowledged that he told the police that a customer by the name of
James Warrick was a possible suspect. He testified that he was “not in the right state of
mind” when he identified Mr. Warrick as a potential suspect. Mr. Calhoun explained that
he worked the morning shift after the robbery while he was still in “shock” from the
incident. In hindsight, Mr. Calhoun admitted that he should not have been working so soon
after the robbery. Mr. Warrick was the first customer to enter the store the day after the
robbery and had the similar build and height as the robber. Mr. Calhoun obtained Mr.
Warrick’s name from his work identification badge. Mr. Calhoun recalled being “nervous”
around Mr. Warrick. Mr. Calhoun testified that he does not believe Mr. Warrick robbed
the store.
In his interview, Defendant identified himself in a screenshot of the surveillance
footage. He admitted that he stole a carton of cigarettes which he sold in several bars. Cell
phone analysis showed that Defendant received one incoming call at 5:47 p.m., and made
three outgoing calls between 5:49 and 5:58 p.m. All four calls pinged off the cell phone
towers in South Nashville. The record shows that Defendant sent text messages on
November 19 and 20 offering to sell cartons of cigarettes.
Count 9 – Twice Daily –Vultee Boulevard – November 20
Jason Hamilton was working at the Twice Daily convenience store, located at 1330
Vultee Boulevard on November 20, 2017, at approximately 11:45 p.m., when a man
entered the store and asked for a pack of cigarettes. Earlier, Mr. Hamilton observed the
man hold the door open for a customer who was leaving the store. When the man entered
- 24 -
the store, he was the only customer. Mr. Hamilton testified that when he turned around to
hand the cigarettes to the man, the man pointed a black pistol at Mr. Hamilton and
demanded “everything in the register” and a container of twenty-dollar bills from the safe.
Mr. Hamilton estimated that he gave the man “[r]oughly” $160 in cash. After Mr. Hamilton
handed the man the money from the register and the safe, the man ordered Mr. Hamilton
to get on the ground and not look up. Mr. Hamilton testified that the man walked out of
the store and to the left of the store in the direction of a neighborhood off of Briley Parkway.
He did not observe the man arrive or leave the scene in a car. After the man was out of
sight, Mr. Hamilton immediately locked the doors and called 911. He believed the man’s
gun was real. He described the robber as “an older white male, with blue eyes.” Mr.
Hamilton recalled that the man was dressed in “heavy” winter clothes, and wore a mask
that covered his nose and mouth and a beanie or skullcap over his head. Mr. Hamilton
identified himself and the robber in the surveillance footage of the robbery that was
exhibited to the jury and played during his testimony. He pointed out that the robber held
the gun in his left hand. On cross-examination, Mr. Hamilton recalled telling the police
that he believed the robber to be “an older male” because the robber had wrinkles and bags
underneath his eyes.
In his interview, Defendant identified himself as the person who robbed this store
off of Briley Parkway. Analysis of Defendant’s cell phone activity showed that he made
an outgoing call at 12:01 a.m. which connected to a tower nearest the Twice Daily
convenience store.
Count 5 – Delta Express/Mapco – Harding Place – November 24
On November 24, 2017, Raouf Essa was stocking the shelves with cigarettes at the
Delta Express/Mapco at 440 Harding Place, at 3:20 p.m., when a man entered the store and
said, “Give me the money, you motherfucker.” Mr. Essa turned around and saw a man
pointing a small, black gun at him. Mr. Essa opened the cash register, took out the cash,
and put it on the table. The man took all the money but would not leave. The man ordered
Mr. Essa to the back of the store and threatened to hit Mr. Essa if Mr. Essa refused. They
were halfway to the back when a customer entered the store. The man immediately turned
around and fled. Mr. Essa testified that the man took “$200 or more.” Mr. Essa testified
that he was so overcome by the experience of just being robbed that he could not return to
the front of the store. When the female customer saw Mr. Essa, he asked her to call the
police. Mr. Essa testified that he remained in the back of the store until the police arrived
because he was frightened. Mr. Essa testified that the robber, who was between the age of
thirty and forty, stood five feet nine inches tall, and wore blue jeans, a jacket, and gloves.
Both his head and part of his face up to his nose was covered. Mr. Essa recalled that the
man wore a face mask. He revealed on cross-examination that the man’s jacket also
covered his head suggesting that the jacket had a hood. Mr. Essa recalled that the robber
- 25 -
wore prescription glasses, and not sunglasses because he was able to see the robber’s eyes
which were “[s]ort of green.” Mr. Essa identified Defendant in the courtroom as the robber.
He had also previously identified Defendant as the robber in an earlier hearing in December
2017.
Mr. Essa did not watch the robber as he left the store but watched the surveillance
camera aimed outside the store and testified that the robber went around the store by the
ice machine and the trash bin. Mr. Essa narrated the surveillance footage of the robbery as
it was played for the jury. He identified himself, the robber, and the woman who entered
the store during the robbery and called the police. Mr. Essa noted that the robber held the
gun in his left hand.
In his interview, Defendant admitted that he robbed the store on “Harding.” He
identified himself in the screenshots of the store’s surveillance footage. He also admitted
that he drove to the market in his car, a gold Toyota Camry. He identified Richard Black
as the man who drove the car away from the scene. Data from Defendant’s phone showed
that two outgoing calls were made at 3:37 p.m. and 3:59 p.m. Both calls communicated
with a cell tower near the Mapco.
Count 6 – Mapco Express – Nolensville Pike – November 25
Tamar Ishak testified that he was working at the Mapco Express at 3043 Nolensville
Pike on November 25, 2017, shortly after midnight when a man wearing a face mask,
grabbed a bottle of water from the cooler and placed it on the counter as if to pay. Mr.
Ishak told the man to remove his mask three times but the man refused. After the third
time, the man withdrew a large, black gun, pointed it at Mr. Ishak, “insulted” Mr. Ishak,
and demanded that Mr. Ishak open the register and give him the money. Mr. Ishak gave
the man the money as ordered. The man grabbed the money, ordered Mr. Ishak to look at
the floor, and exited the store. Mr. Ishak stated that the man did not arrive on foot but had
parked his car behind the store. Mr. Ishak testified that the man took about $200. Mr.
Ishak described the robber as a white man, approximately forty to forty-five years old, of
medium height, with green eyes. Mr. Ishak testified that the robber put on a pair of glasses
before he insulted Mr. Ishak and ordered him to open the register. He confirmed that the
robber was wearing black gloves. Mr. Ishak stated that he focused on the gun to determine
whether it was real and according to him, the gun appeared to be real. Surveillance footage
of the robbery was played for the jury. Mr. Ishak identified himself and the robber in the
footage. He pointed out that the robber held the gun in his left hand and likewise grabbed
the money with the same hand.
Ten days after the robbery, Mr. Ishak was working at another Mapco Express
location when he saw a man who appeared to be the man who robbed the Mapco on
- 26 -
November 25, 2017. Mr. Ishak testified that this man was also white, wore the same clothes
as the robber, and had the same color eyes. However, unlike the robber, this man’s face
was not covered by a face mask. Although the man did not rob the store, Mr. Ishak
contacted the police. Mr. Ishak was asked to identify the man who robbed him in the
courtroom but was unable to do so.
In his interview, Defendant admitted that he robbed the Mapco on Nolensville Road.
He admitted that Mr. Black had parked the car in an alley behind the store. Data from
Defendant’s cell phone showed that four outgoing calls were made between 12:31 and
12:52 a.m. These calls connected to a cell tower in South Nashville near the Mapco on
Nolensville Road.
Count 8 – Delta Express – Thompson Lane – November 26
Stella Rice testified that on November 26, 2017, at approximately 5:00 p.m., she
was working the register at the Delta Express at 18 Thompson Lane and watched as an
elderly female customer was searching for drinks in the back of the store, when a man
entered the store, pointed a big, black gun at her and said, “Bitch, give me the money or
I’m going to kill you.” Nervous, Ms. Rice tried to open the register as the man repeatedly
demanded that she “give [him] the money now.” She finally managed to open the register
and stepped back as the man grabbed the money from inside the register and ran away in
the direction of the laundromat. She stated that the man took $20-$28. Ms. Rice described
the robber as an “older white male” dressed in a gray hoodie, blue jeans, black gloves, a
black mask, and sunglasses. She stated that she was unable to identify the robber. She told
police the robber was thirty-five to forty-five years old, stood five feet seven inches in
height, and weighed 180 pounds. When asked later whether she was certain about the
robber’s height and weight, Ms. Rice testified that she knew the robber was taller than her
because she is five feet seven. Ms. Rice stated that she was not familiar with guns but
believed that the robber’s gun was real. She did not see the robber leave the scene in a car.
The store’s surveillance footage of the robbery was played for the jury. Ms. Rice identified
herself as the person standing behind the register. She also identified the robber who was
holding the gun in his left hand, however, she added that the incident was “confusing.”
In his interview, this was the only store Defendant denied robbing. He denied that
he was the person depicted in the screenshot from the surveillance footage. However, his
cell phone data showed that an outgoing call was made from his phone at 5:28 p.m. and an
incoming call was received two minutes later. Both calls connected to a cell phone tower
in South Nashville closest to the store.
Count 7 – Mapco – Nolensville Pike – November 30
- 27 -
On November 30, 2017, around 9 p.m., Nathan Allen was waiting for his shift to
wind down at the Mapco at 5040 Nolensville Pike when a man, whose face was covered,
entered the store. The man explained that he had covered his face because the weather was
cold outside. However, the man suddenly “lunge[d]” at Mr. Allen, pointed a black gun at
him, and ordered Mr. Allen to “give [him] the money.” Mr. Allen gave him $50 which
was the exact amount Mapco kept in the register per its policy. Mr. Allen recalled that the
robber wore a brown “tannish” jacket, blue jeans, a hat with a hood over it, sunglasses, and
a “colorful” mask or scarf over his face. Mr. Allen told the police that the robber was in
his thirties or forties, stood five feet nine inches in height, had brown hair, and was of
average build. Mr. Allen identified himself and the robber on the store’s surveillance
footage which showed that the gun was in the robber’s left hand.
In his interview, Defendant admitted that he robbed this store when told of its
location on Nolensville Pike near Tusculum Road. Defendant stated that it was the “last”
store he robbed. Defendant’s cell phone received three incoming calls and made three
outgoing calls from 8:30 to 9:16 p.m. All six calls communicated with a cell tower near
the Mapco after the robbery. The day after the robbery, Defendant received a text message
asking if he was “okay.” Defendant replied, “I’m good brother! I did one last night but
only got $55 pissed me off! Lol[.]” Cell phone call detail record analysis showed that
incoming calls were made to Defendant’s phone at 8:30, 8:40, and 9:06. p.m. Outgoing
calls were made from his phone at 9:00, 9:12, and 9:16. The calls connected to towers in
South Nashville closest to the site of the robbery.
Other Proof at Trial
MNPD Detective Chad Gish testified as an expert in the field of digital forensic
analysis without objection. Detective Gish analyzed Defendant’s cell phone, a black
iPhone. He described how he performed a physical extraction of the phone’s data.
Detective Gish used the Cellebrite forensic software platform to extract the phone’s text
messages, web browser history, and search engine history. Detective Gish prepared an
extraction report of Defendant’s cell phone data relevant to the case. He testified that a
review of Defendant’s phone’s Google search history revealed a search for “Gunshops in
Nashville, Tennessee” on October 9, 2017 at 11:40 a.m.
Detective Gish narrowed the phone’s text message history from November 9, 2017
to December 1, 2017. He testified that the following text message was sent from
Defendant’s phone to four different cell phone numbers: “Hey, brother, I have 23 cartons
of cigarettes I’m trying to sell for 20. A carton. If you know anybody interested, give me
a call.” This text message was sent on the November 19, 2017, the day after Defendant
robbed the Delta Gas Station on Murfreesboro Pike and took a case of cigarettes. In another
text message sent on the same day, the cigarette brands were identified: “Do you know
- 28 -
anybody that buys cartons of cigarettes? I have like 25 cartons. Pall Mall Regular, Lites
and Ultra Lites Winston, 2 cartons of Kools. Anyway, I have 23 cartons. I let them go for
$20 a carton.” In yet another text message from Defendant’s phone, “I got. Pall Mall
Regular and Menthol, Winston Lites, 2 Kools, and a few other cartons, but they are mostly
regular.” The next day, the following text message was sent regarding the sale of
cigarettes: “Hey brother, are you interested in cartons of cigarettes $20 a carton, the only
menthols I have is Kools and Pall Malls.”
On November 23, 2017, a text message was sent from Defendant’s phone stating,
“Can you get us some H or what? I have money.” On November 25, 2017, the following
text message was sent from Defendant’s phone: “What’s up, brother? Just got back from
a road trip to Indiana. I need to holler at you, brother. Call me asap. I’m sick as fuck and
I have cash.”
The day after the last reported robbery on November 30, 2017, Defendant’s phone
received a text message asking if he was “okay.” The following response was given, “I’m
good brother! I did one last night but only got $55 pissed me off! Lol[.]”
On cross-examination, Detective Gish agreed that he did not know the context of
the messages or know the parties who sent messages to Defendant’s phone. Altogether, he
examined 280 search terms, 1,900 web histories, and 1,400 text messages.
Detective Joseph High, an expert in the law enforcement use of call detail records,
analyzed the call detail records for Defendant’s cell phone. Based on the use of
Defendant’s cell phone and its communication with different cell service towers, Detective
High was able to determine the approximate locations of Defendant’s cell phone from
November 1, 2017 to December 3, 2017. Detective High narrowed his analysis relative to
the commission of each of the robberies. Detective High compared Defendant’s call
location history to the location of each of the robberies and the times in which they
occurred. As a matter of convenience, much of his testimony was provided along with the
summary of the testimonies corresponding to each of the robberies.
On cross-examination, Detective High acknowledged that the two-mile radius he
used to indicate the range of a cell phone tower was not reflective of a tower’s actual range
which can vary depending on whether the tower is located in a dense urban area or a sparse
rural area. He acknowledged further that he did not consider nearby buildings, population
density, weather patterns, or topography in his analysis. Detective High confirmed that
Defendant lived near the location of several of the robberies. While he agreed that it was
“possible” for Defendant’s cell phone to be “sitting” at his house during some of the
robberies, he maintained that it would be “inconsistent” with the data he analyzed.
- 29 -
Detective McGowen testified that he was the lead investigator on the robberies
which all occurred in his assigned precinct, the Midtown Hills Precinct located in the
Twelve South area near Belmont. He explained that although he did not investigate crimes
which did not occur in his precinct, he received communication about crimes in other
precincts within the MNPD. Detective McGowen believed that the robberies may have
been committed by the same person because “[t]hey were all similar in nature” and “went
down in a similar manner.” Although there was surveillance footage of the robberies, there
was no lead as to the identification of the robber. Canine units were called to a couple of
the stores but were unable to track a suspect. Moreover, fingerprints lifted at the site of
two of the robberies lacked any comparative value because the robber wore gloves to all
but one of the robberies.
Detective McGowen got a break in the investigation on November 24, 2017, the
day of the robbery at Delta Express on Harding Place. Detective McGowen obtained
surveillance footage from the Family Medical Clinic located next door to the Delta Express
at 476 Harding Place. The clinic had four cameras on its roof, two facing Harding Place
and two monitoring its parking lot adjacent to the Delta Express. The surveillance footage
was played at trial. The date and time stamp on the surveillance footage shows that on
November 24, 2017, at 3:21 p.m., a gold Toyota Camry pulled into the entrance for the
Delta Express, but drove past the Delta Express and backed into a space to the right of the
market but clearly in the parking lot designated for the clinic. The driver and the passenger
exited the Camry at the same time. The passenger walked around the back of the Camry
and got in the driver seat while the driver appeared to put on a gray sweatshirt, walk around
to the front passenger side, and grab something from inside the car. The front passenger
door remained open as the driver stood with his back to the street. He appeared to be
looking at whatever he grabbed from the car. The driver soon closed the car door and
walked slowly to the Delta Express. He paused briefly when he reached the corner of the
Delta Express building and continued walking and can no longer be seen by the clinic roof
cameras. He disappeared from the camera’s view at 3:24:24 p.m.
At 3:25:01 p.m., a blue sedan pulled directly in front of the Delta Express.
According to Detective McGowen, this is the customer who entered the store during the
robbery. The driver of the blue sedan stepped out of her vehicle and entered the market
precisely one minute after the driver of the gold Camry entered the store. Approximately
thirty seconds later, the driver of the gold Camry can be seen outside the front of the store
walking to the Camry at a pace faster than when he entered the store as noted by Detective
McGowen. The Camry immediately pulled away as soon as the original driver got into the
front passenger side. The Camry is seen driving away from the Delta Express and through
the clinic parking lot turning right out of the clinic parking lot. Detective McGowen
testified that the Camry headed westbound on Harding Place.
- 30 -
Detective McGowen testified that this footage provided a breakthrough in the case
because it was the first time the robbery suspect’s vehicle was caught on camera. By
watching this footage, Detective McGowan observed that the gold Toyota Camry had a
mark on the hood, a sticker in the center of the rear windshield, and hurricane-style plastic
rims.
Detective McGowen testified that two days after the Harding Place Delta Express
robbery, he received another break in the case. He was in the parking lot of a Rent-a-
Center, near Nolensville Pike and Tanksley Avenue, and south of Thompson Lane, when
he saw a broken down late-model, gold Toyota Camry that matched the vehicle seen
leaving the Delta Express on November 24. He explained that this model did not appear
as if it had been moved in several weeks and acknowledged that he had seen this car
previously at this location. However, this time, another late-model, gold, Toyota Camry
was parked behind the broken-down model and a white man was either removing or putting
on a license plate on the broken model. Detective McGowen continued to watch the man
briefly before making his approach. He then activated the emergency equipment on his
unmarked police vehicle, approached the man, and identified himself. As he approached,
Detective McGowen saw a man in the driver’s seat of the working Camry. The man
standing behind the broken-down Camry was Richard Black. Defendant was seated in the
other Camry.
Detective McGowen identified Defendant in the courtroom as the man he saw that
day near the broken-down Camry. He testified that Defendant was seated in a car that
matched the description of the suspect vehicle captured on the clinic surveillance camera.
Furthermore, Defendant’s car had the distinctive hurricane-style hub caps, the white sticker
on the window, and a mark on the hood just like the car seen at the Harding Place Delta
Express robbery. Defendant also matched the physical description of the man seen entering
and exiting the Delta Express and Mr. Black matched the description of the man who drove
the car after the robbery.
Defendant cooperated with Detective McGowen by tendering his driver’s license,
providing his cell phone number, and consenting to a search of his car. Nothing related to
the robberies was found in the car. Because the robber appeared to be left-handed,
Detective McGowen asked Defendant whether he was right-handed or left-handed and
Defendant replied that he was left-handed. Detective McGowen released Defendant and
Mr. Black because he lacked sufficient information to arrest them.
Three days later, Detective McGowen obtained a warrant to obtain Defendant’s cell
phone records from November 24-26, 2017. Upon receiving the records on December 3,
2017, Detective McGowan reviewed the records and noted that Defendant’s phone was
within half a mile, or less, from the Delta Express/Mapco on Harding Place. On December
- 31 -
5, 2017, Detective McGowen obtained a warrant to place a GPS tracking device on
Defendant’s car, and the device was installed on Defendant’s car that day. However, the
car was not involved in any further robberies during the time the tracking device was on
Defendant’s car from December 5-11, 2017.
Detective McGowen put out an alert to arrest Defendant, and he was arrested on
December 11, 2017, by Officer Stanfield. Defendant was transported to the Midtown Hills
precinct where he was advised of his rights. As previously addressed, Defendant waived
his rights and agreed to talk to Detective McGowen and Detective Armstrong, and
Defendant specifically denied being under the influence drugs or alcohol. The rights
waiver form was admitted as an exhibit to the trial.
As set forth in the discussion of the motion to suppress, Detective McGowen
explained the three parts of Defendant’s interview and confirmed that all three parts of the
interview were transcribed and accurately reflected the interviews. Detective McGowen
acknowledged that as an interview technique he led Defendant to believe that “[he] knew
[Defendant] was committing the robberies but [had] not stop[ped committing the
robberies].” He agreed that the goal of the techniques is to “get to the truth.” All three
recordings were played for the jury.
Detective McGowen testified that after a smoke break, Defendant admitted to
committing the robberies. During the post-smoke break interview, Detective McGowen
showed Defendant still shots of the robber from the surveillance recordings from all the
stores. An arrest report was generated for Defendant noting his age, height, and weight.
At the time of the arrest, Defendant was fifty-four years old with green eyes. His height
was listed at five-eleven, and his weight was listed at two hundred pounds. Detective
McGowen created a map listing all the locations of the aggravated robberies, Defendant’s
mother’s house where he stayed, the Rent-a-Center where Detective McGowen saw
Defendant and Mr. Black, and the two late model Camrys.
On cross-examination, Detective McGowen acknowledged that lying is a permitted
technique for interrogation. He agreed that in Part I of the interview, Defendant denied
having robbed the stores six times. He also agreed that Defendant appeared somewhat
emotional at the beginning of Part II of the interview. He could not recall the number of
times they talked about Defendant’s mother but confirmed that they did talk about her
during the interview. Defendant was adamant that his mother was not involved in the
robberies. Detective McGowen was aware that Defendant’s mother drove a Grand
Marquis. He acknowledged that one of the options discussed during the interview was to
talk to Defendant’s mother about the case.
- 32 -
Detective McGowen recalled that Defendant talked about going to rehab. He denied
that Defendant was under the influence during the interview. Detective McGowen stated
that he did not personally search Defendant. After the interview, Officer Stanfield called
Detective McGowen to inform him that a tenth of a gram of heroin was found in
Defendant’s pocket while Defendant was being booked.
Detective McGowen prepared two photographic lineups. Defendant was among the
six photographs shown on one of the two lineups. That lineup was presented on November
27, 2017, to Christine Kalcheim, who was shopping in the Dollar General Store on Eighth
Avenue South when it was robbed. Ms. Kalcheim gave an account of that robbery and
whether she saw the suspect in the lineup as part of the defense proof. Detective McGowen
did not interview Mr. Black about the case. The investigation of Mr. Black’s involvement
was still ongoing. Detective McGowen was unable to enhance the license plate on the
Camry seen on the clinic surveillance footage on the day of the Delta Express robbery. No
property or money taken in the robberies was ever recovered.
Defense proof
Defendant did not testify but instead called two witnesses. The first witness,
Christine Kalcheim testified that she was shopping in the Dollar General Store on Eighth
Avenue South when it was robbed. However, before she entered the store, she spoke
briefly with a man standing outside the store. According to Ms. Kalcheim, the man’s face
was not covered. She recalled that he was wearing a jacket with a hood. Ms. Kalcheim
thought the man might be homeless so she planned on giving him a couple of dollars once
she finished shopping.
Once inside the store, Ms. Kalcheim made her way down the first aisle which
blocked her view of the cash registers. As she was shopping, she heard someone scream
and then heard people running and a commotion at the back of the store. She saw two
women who told her that there was a man with a gun inside the store. Ms. Kalcheim and
the two women hid in the back office and watched for the gunman from the surveillance
cameras inside the office. Fearful that the man might try to shoot his way into the back
office, she and the two employees stayed on the ground. Ms. Kalcheim and the two
employees remained in the office until they saw some customers enter the store. Once they
saw customers, one of the employees dialed 9-1-1 while Ms. Kalcheim called MNPD. Ms.
Kalcheim was later shown two photographic lineups. She chose and ranked three people
among the first lineup who could have been the robber. She was unable to identify a
suspect in the second lineup. At trial, she stated that she was unable to make a clear
identification of the robber. She was also shown the surveillance footage of the robbery
and testified that the robber wore the same clothes and appeared to be the same man she
spoke to before she entered the store.
- 33 -
Defendant presented his admission and discharge summary from Buffalo Valley, a
detox center. He was admitted on December 6, 2017, and discharged on December 10,
2017. Defendant’s last witness was John Morris who testified as an expert in call detail
records analysis. Mr. Morris disagreed with Detective High’s analysis of Defendant’s
phone records. Specifically, he disagreed that a phone communicating with multiple
towers in a call suggests that the cell phone was moving during the call. He explained that
a person’s cell phone can communicate with several cell towers during a single call while
remaining in a fixed position. For instance, Mr. Morris testified that for Defendant’s calls
which communicated with the south Nashville towers, Defendant “very easily could have
been sitting at his home for almost all of them.” He testified that “there’s no way to truly
know [a person’s location] using call detail records.” He added that call detail records
cannot be used to geolocate a cell phone’s location because they lack specificity and are
used primarily for billing.
Mr. Morris received engineering data or per call measurement data “PCMD” from
Defendant’s phone. He testified that in a couple of instances, the PCMD placed
Defendant’s cell phone in proximity to the aggravated robberies. He testified that only
GPS data or 911 information can provide a “reasonable estimate” of a device’s location.
At most, the call detail records showed that Defendant’s phone was in Nashville, not
Memphis or Murfreesboro during the time frame of the call detail records. He
acknowledged however, that even PCMD has limitations in geolocating a cellphone. He
also acknowledged that when he plugged Defendant’s information into his geolocation
software, it did not contradict Detective High’s findings. He agreed that Detective High’s
analysis accurately showed which cell tower communicated with Defendant’s phone at a
given time.
Based upon the foregoing evidence, the jury found Defendant guilty of aggravated
robbery as charged in counts one through eleven and guilty of attempted aggravated
robbery as charged in count twelve.
At sentencing, the State introduced Defendant’s presentence report and certified
copies of the convictions on which it relied for Defendant to be sentenced as a repeat violent
offender. On December 11, 1989, Defendant pleaded guilty to one count of aggravated
robbery in Cheatham County and received a ten-year sentence. The period of incarceration
for this sentence was August 16, 1989 to September 23, 1992. On October 7, 1993,
Defendant was convicted of three counts of aggravated robbery in Davidson County. He
received a total effective sentence of twenty-four years consecutive to a parole violation.
The period of incarceration for the Davidson County convictions was December 21, 1992
to September 23, 2011.
- 34 -
After the State made its argument for the repeat violent offender status and
consecutive sentencing on the attempted aggravated robbery conviction, Defendant denied
that the prior aggravated robbery convictions involved separate periods of incarceration.
The trial court examined the qualifying judgments and Defendant’s criminal record and
determined that Defendant’s prior qualifying convictions from Cheatham County and
Davidson County involved separate periods of incarceration. Notably, the trial court found
that Defendant could not have committed the Davidson County aggravated robbery on
November 24, 1992, had he not been released on the 1989 Cheatham County conviction.
Defense counsel did not challenge the trial court’s determination that the two prior
aggravated robberies involved separate periods of incarceration.
Based on the prior aggravated robbery convictions, the trial court found Defendant
to be a repeat violent offender and sentenced him to concurrent terms of LWOP on his
convictions for aggravated robbery in counts one through eleven. The trial court imposed
a concurrent sentence of fifteen years for attempted aggravated robbery in count twelve.
The trial court also ordered the sentences in this case to run consecutive to an unrelated
sentence in Maury County. Defendant filed a timely motion for new trial which was
subsequently denied following a hearing. Defendant filed a timely notice of appeal to this
court.
Analysis
I. Motion to Sever the Counts
Defendant claims that counts three through twelve should have been severed from
each other and from counts one and two because they do not constitute a common scheme
or plan and evidence of each count would not have been admissible at a trial for any of the
other counts. The State contends the twelve counts were properly joined because they
constitute a common scheme to obtain money to fuel Defendant’s heroin addiction and
evidence of the robberies was probative of Defendant’s identity. We agree with the State.
This Court reviews a trial court’s decision to consolidate or sever offenses for an
abuse of discretion. Spicer v. State, 12 S.W.3d 438, 444-45 (Tenn. 2000); State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999), overruled on other grounds by State v. Copeland, 226
S.W.3d 287 (Tenn. 2007). Discretion is abused when the trial court applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous
assessment of the proof, or applies reasoning that causes an injustice to the complaining
party. State v. Garrett, 331 S.W.3d 392, 401 (Tenn. 2011) (citing State v. Jordan, 325
S.W.3d 1, 39 (Tenn. 2010)). Discretion is also abused when the trial court “failed to
consider the relevant factors provided by higher courts as guidance for determining an
- 35 -
issue.” Garrett, 331 S.W.3d at 401 (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn.
2007)).
In this case, we consider whether joinder was proper in light of Rule 14(b)(1) of the
Tennessee Rules of Criminal Procedure which states: “If two or more offenses have been
joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have a right to a
severance of the offenses unless the offenses are part of a common scheme or plan and the
evidence of one would be admissible upon the trial of the others.” See Spicer, 12 S.W.3d
at 444 (review under Tenn. R. Crim. P. 14(b), rather than the “same or similar character”
standard of Tenn. R. Crim. P. 8(b) where defendant has formally moved for a severance).
See State v. Dotson, 254 S.W.3d 378, 386 n. 5 (Tenn. 2008) (emphasizing that Rule
14(b)(1) “requires only that evidence of ‘one’ offense, not ‘each’ offense, be admissible at
the trial of the others”).
Although there has been greater emphasis on the second prong – whether the
evidence of one crime would be admissible in the trial of the other – to determine whether
a severance should have been granted under Rule 14(b)(1), id. at 386; as this court has
observed, “there are two prongs, and we must assume that each serves its own purpose.”
State v. Hallock, 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993) cf. State v. Raymond
Griffin, No. W2001-01332-CCA-R3-CD, 2002 WL 1482689, at *7 (Tenn. Crim. App.
Mar. 15, 2002) (“[b]ecause we find that no ‘common scheme or plan’ existed, it is
unnecessary to proceed to the second requirement of the severance test, i.e., the
admissibility of the evidence of one crime upon the trial of the others”).
Under the first prong, Tennessee recognizes three categories of a common scheme
or plan: (1) “signature crimes,” (2) “offenses that are part of a larger, continuing plan or
conspiracy,” and (3) “offenses that are all part of the same criminal transaction.” Dotson,
254 S.W.3d at 387, n.6 (citing Shirley, 6 S.W.3d at 248); see also State v. Moore, 6 S.W.3d
235, 240 (Tenn. 1999). Because the State argues only that the robberies fall under the
second category, we will focus on whether the robberies constitute a larger, continuing plan
or conspiracy.
“The larger, continuing plan category encompasses groups or sequences of crimes
committed in order to achieve a common ultimate goal or purpose.” Hallock, 875 S.W.2d
at 290. While this court has previously recognized that “the larger, continuing plan
category has typically been restricted to cases involving crime sprees, where the defendant
commits several crimes quite closely in time to one another,” State v. Allen Prentice Blye,
No. E2001-01375-CCA-R3-CD, 2002 WL 31487524, at *6 (Tenn. Crim. App. Nov.1,
2002), we do not ignore that “crimes committed in furtherance of a plan [] has a readily
distinguishable goal, not simply a string of similar offenses.” State v. Denton, 149 S.W.3d
1, 15 (Tenn. 2004); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[12][c]
- 36 -
(5th ed. 2005) (“[t]he unifying concept of crimes admitted under this theory is not their
high degree of similarity but the common goal or purpose toward which each crime is
directed”). Therefore, “[e]ach of the challenged offenses must serve to further the goal or
plan in existence at the time of the commission of the first offense.” State v. Timothy Leron
Brown, No. M2017-00904-CCA-R3-CD, 2019 WL 1514551, at *28 (Tenn. Crim. App.
Apr. 8, 2019) (citing State v. Jawaune Massey, No. E2013-01047-CCA-R3-CD, 2014 WL
3661490, at *32 (Tenn. Crim. App. July 23, 2014).
This category requires evidence of a “‘working plan’ whereby the subsequent
offenses are predictable or probable from the defendant’s determination to commit the
initial offenses (or vice versa),” otherwise the subsequent offenses cannot constitute parts
of a larger, continuing plan. Jawaune Massey, 2014 WL 3661490, at *31 (quoting Blye,
2002 WL 31487524, at *6); see State v. William Ramsey, No. M2001-02735-CCA-R3-CD,
2003 WL 21658589, at *9 (Tenn. Crim. App. July 15, 2003) (consolidation of aggravated
robbery and theft offenses proper, although committed four months apart, where “there
was substantial evidence that both the theft and vandalism of the vehicle and the aggravated
robbery of [the victim] were committed for the same purpose of retaliating against [the
victim’s husband]”).
This court has held that “shared motivation for two otherwise unrelated crimes is
not sufficient to establish a ‘common scheme or plan.’” State v. Prentice, 113 S.W.3d 326,
332 (Tenn. Crim. App. 2001) (State’s suggestion that Defendant committed two aggravated
assault offenses to terrorize and intimidate his wife was insufficient to establish a
continuing plan or conspiracy offenses where the offenses were unrelated in time, location,
and character). In considering the category of a larger, continuing plan or conspiracy, we
review the trial court’s decision in light of three cases cited by Defendant as supporting
authority, State v. Adams, 859 S.W. 2d 359 (Tenn. Crim. App. 1992); State v. Hallock,
S.W.2d 285 (Tenn. Crim. App. 1993); and State v. Griffin, No. W2001-01332-CCA-R3-
CD, 2002 WL 1482689 (Tenn. Crim. App. 2002).
In Adams, the defendant was charged along with a co-defendant with robbing a
convenience store and then one hour later, robbing and killing a foreign exchange student
three miles from the convenience store. 859 S.W.2d at 362. The trial court consolidated
the two offenses under Rules 8 and 13. Id. On appeal, the State argued that both crimes
were committed to obtain money to purchase drugs, but did not introduce any evidence in
support of that position. Id. The defendant gave a statement about the felony murder case.
Id. at 361. He admitted that he “was there” when the victim was killed but claimed that
the co-defendant shot and robbed the victim. Id. “No physical evidence linked the cases
together except the evidence that both crimes were committed by the same two persons.”
Id. This court found the State’s “suggestion of shared motivation” insufficient to establish
a common scheme or plan to justify consolidation of the two crimes. Id. Although the trial
- 37 -
court erred in ordering consolidation, this court held that the error was harmless because
proof of guilt against the defendant in both cases was legally sufficient. Id. at 363.
In Hallock, the defendant was charged in a five-count indictment of sexually
assaulting his two minor children. 875 S.W.2d at 288-89. The crimes were similar in
nature and were committed in the same house during the same approximate period of time.
Id. at 289. The victims clearly identified the defendant as the perpetrator. Id. at 292.
Moreover, the defendant confessed to the offenses. Id. at 289. This court held that the
crimes failed to satisfy the first prong of the severance test because they did not satisfy any
of the categories of a common scheme or plan. Id. at 289-90. The court specifically
rejected a possible theory that the defendant had a continuing plan or conspiracy to sexually
abuse the victims for the purpose of gratification by use of the following hypothetical:
The fallacy inherent in this thinking is easily exposed by the following
example: X is on trial for three counts of burglary, each involving a different
building, a different form of entry, and a different day. His overall purpose,
however, was to acquire money for college. Clearly, without more, X is
entitled to severance under Rule 14(b)(1).
Id. at 290. Although the trial court’s denial of severance was erroneous, the error was
harmless beyond a reasonable doubt in light of the overwhelming evidence of the
defendant’s guilt. Id. at 292.
In Griffin, the defendant challenged the consolidation of eight criminal episodes for
trial. 2002 WL 1482689, at *1. The eight criminal episodes occurred within a six-week
period, targeted eight different homes, and led to thirty-two indictments and twenty-five
charged offenses. Id. at *1-*4. The defendant confessed to seven of the eight criminal
episodes but gave no reason or motivation for his actions. Id. The trial court consolidated
the eight episodes because they were part of a “larger, continuing plan or conspiracy” and
evidence of each offense would be admissible in the trial of the others to show identity and
lack of mistake. Id. at *6. The State argued that the offenses were part of a common
scheme or plan “to drive around the City of Memphis at night in order to target particular
individuals for robbery.” Id. *7. In rejecting the State’s argument, this court looked to the
hypothetical of the three burglaries in Hallock. Id. This court held the trial court erred in
consolidating the eight criminal episodes into a single trial because the criminal episodes
were not united by a common goal or purpose, Id. “[I]n the absence of a unifying common
goal or purpose which connect the individual robberies and accompanying crimes, other
than simply the perpetration of multiple offenses, the Appellant is entitled to severance of
the eight criminal episodes.” Id. As was the situation in Adams and Hallock, the error in
consolidating the eight criminal episodes in a single trial was harmless due to the
overwhelming evidence of the defendant’s guilt. Id. at *8.
- 38 -
Turning to the second prong of a severance ruling, we recognize that whether two
or more offenses should be tried together under Rule 14(b)(1) is an issue of relevance.
Garrett, 331 S.W.3d at 402 (quoting Spicer, 12 S.W.3d at 445). Because joining offenses
“involves admitting proof of crimes committed on one occasion while attempting to prove
crimes committed on a separate occasion, the provisions of evidence rule 404(b) are
implicated.” State v. Demeko Gerard Duckworth, No. M2012-01234-CCA-R3-CD, 2013
WL 1933085, at *14 (Tenn. Crim. App. May 10, 2013) (citing Garrett, 331 S.W.3d at 402).
Rule 404(b) of the Rules of Evidence provides that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity with the character trait.” However, such evidence may be admissible “for other
purposes.” Tenn. R. Evid. 404(b). “Other purposes” may include “identity (including
motive and common scheme or plan), intent, rebuttal of accident or mistake[.]” Id.Advisory Commission Comment. To be clear, “the mere existence of a common scheme
or plan is not a proper justification for admitting evidence of other crimes.” Hallock, 876
S.W.2d at 292.
Before a trial court may deny a severance request, it must hold a hearing on the
motion and conclude from the evidence and argument presented at the hearing that (1) the
multiple offenses constitute parts of a common scheme or plan; (2) evidence of one of the
offenses is relevant to some material issue in the trial of the other offenses; and (3) the
probative value of the evidence of the other offenses is not outweighed by the prejudicial
effect that admission of the evidence would have on the defendant. Dotson, 254 S.W.3d
at 387 (citing Spicer, 12 S.W.3d at 445).
In this case, the record shows that the trial court held a hearing on the motion to
sever and the motion to reconsider. Based on the evidence and the arguments presented at
the hearings, the trial court concluded that the robberies were part of a larger, continuing
plan, that proof of one robbery would be admissible in a separate trial of the other robberies,
and that the probative value of the offenses was not outweighed by the danger of unfair
prejudice to Defendant. In denying the motion to sever, the trial court relied on the
following reasons and factual findings:
Here, identity is a material issue at trial in all [c]ounts of the [i]ndictment,
and the offenses charged constitute a common scheme or plan under Rule
8(b) in that they were part of a larger, continuing plan or conspiracy. That
is, the proof shows a “working plan, operating towards the future with such
force as to make probable the crime for which the defendant is on trial.”
Detective McGowan testified about his investigation of the string of
robberies, which included (1) the November 26, 2017 stop of the Defendant
- 39 -
to determine who used the vehicle viewed on surveillance footage, (2)
attempts at tracking the Defendant’s vehicle (no robberies were committed
while the vehicle was being tracked), and (3) obtaining the Defendant’s
phone records, which showed his phone pinged near the robbery locations at
the time the robberies were committed. The evidence to establish each
individual robbery charge is “so related to each other that proof of one tends
to establish the others.” The probative value is particularly significant and
outweighs potential prejudice. This Court finds the charges have been
properly consolidated pursuant to Rule 8(b) of the Tennessee Rules of
Criminal Procedure. The Defendant’s motion to sever counts is denied.
(internal citations omitted). In its order denying Defendant’s motion to reconsider, the trial
court found “addition[al]” reasons to deny Defendant’s request for severance. Relying
heavily on State v. Jamie Paul Click, No. E2015-01769-CCA-R3-CD, 2017 WL 1189750(Tenn. Crim. App. Mar. 30, 2017), the trial court found that the similar nature and location
of the robberies, the narrow time frame in which the robberies were committed, and the
limited geographical region where the offenses occurred supported permissive joinder.
We conclude that the trial court did not abuse its discretion in denying Defendant’s
request to sever the offenses under Rule 14(b). The first prong of the severance test was
met because the State established proof of a common scheme or plan via a continuing plan.
In his interview with Detective McGowen and Detective Armstrong, Defendant admitted
repeatedly that he needed money to finance his heroin addiction and robbing convenience
stores accomplished that goal:
It didn’t start happening [un]til I got on the heroin. And the only reason I did
it was to, I couldn’t find a job. If I could find a job, I’d have worked to pay
for my heroin.
Defendant confessed the same to his mother as grounds for his arrest: “It was the damn
heroin that done it.” He also told her that he committed the robberies “to feed [his] heroin
addiction.” In his own words, the robberies were the product of a continuing motive – to
obtain money for heroin.
Because Defendant could not find employment, he “resorted back to what [he]
knew.” Defendant developed a plan based on his experience as a seasoned robber.
Defendant admitted to the detectives that he and his brother “have always been robbers”
and that “[b]ack in the 80[s] . . . early 90[s]. The motels were the easiest things to rob . . .
cause that’s w[h]ere you got the good money[.]” In this instance, Defendant’s mission was
not to get rich, but to steal enough money to buy heroin to hold him over for a few days.
- 40 -
When the heroin ran out, he would rob another store. To accomplish his stated goal,
Defendant chose convenience stores:
You go into a store now man, [if] you, any store you go into, it it’s at, if it’s
dark. You go in the store and you give them a 20 dollar bill, what do they do
with it[?] Boom, drop it right in the safe, you know what I mean[?] You
know. You know there’s never hardly no money in the registers. And I knew
that. So I wasn’t doing it to get rich, I was just doing to get enough drugs to,
heroin to hold me over for a couple days, you know what I mean[?]
(emphasis added).
We are unpersuaded by Defendant’s reliance on Adams, Hallock, and Griffin. What
was lacking in those cases, is not lacking in this case. In this case, Defendant expressed a
goal and motivation for his crimes and developed a working plan toward accomplishing
that goal. He targeted convenience stores because he knew they had just enough money
on hand for him to buy just enough heroin to support his addiction. Based on his knowledge
and plan of robbing convenience stores, he also knew that additional money could be find
in a tube in the store’s safe if the cash drawer was insufficient for his needs. Additionally,
if Defendant could not steal enough money to support his addiction, he took cartons of
cigarettes which he then sold to obtain money to support his addiction. The proof in this
case includes many text messages Defendant sent soliciting interest in the purchase of
cigarettes the day after he stole the cartons of cigarettes from the Delta Gas Station on
November 18. Four days after the text messages, Defendant sent another text message
stating that he had money to buy “H.” In both Adams and Griffin, there was no proof of a
working plan connecting the consolidated crimes. Adams, 859 S.W.at 362; Griffin, 2002
WL 1482689, at *7. As mentioned previously, the Supreme Court in Hallock, soundly
rejected any “misapprehend[sion]” that the defendant’s purpose for sexually abusing the
minor victims, without more, was entitled to severance under the category of a continuing
plan. 875 S.W.2d at 290.
Altogether, Defendant robbed eleven convenience stores, located in a confined
geographic area, over a short period of time, and robbed them in the same manner, dressed
in similar type clothing, and armed with the same type of weapon.. Defendant robbed the
same type of store, located in the same geographic area of Nashville, within a four-week
period. He employed similar methods of entering and robbing the stores. Additionally,
Defendant targeted stores in close proximity to each other. Detective McGowan testified
that he only investigated cases covered by the Midtown Hills Precinct. Accordingly, his
investigation of Defendant’s case was limited to the robberies which occurred in a
geographic range from “12th South to Donelson” areas in “southern Nashville.” While the
victims’ descriptions of Defendant varied somewhat, they also shared similarities. For
- 41 -
instance, the robber wore the same type of face and head covering, and usually wore gloves,
and a hooded jacket. In some of the robberies he was seen wearing the same jacket. He
was always armed with a gun which he held in his left hand as depicted in the surveillance
footage. The trial court did not abuse its discretion in finding that the proof established a
larger, continuing plan with the crimes committed in close proximity sufficient to meet the
first prong under the severance test.
Next, in this case, proof of each robbery would be admissible at trial for the other
robberies because identity was a material issue in the case and the evidence of the offenses
was probative of establishing Defendant’s identity as the robber. Although each
convenience store documented the robberies, from the first robbery of the Dollar General
Store on November 2, through the November 20 robbery of the Twice Daily, none of the
stores’ employees could identify the robber. Two employees, Mr. Calhoun from the Delta
Gas Station robbery on November 18 (count four), and Mr. Hamilton from the Twice Daily
robbery on November 20 (count nine), noted however, that the robber held the gun in his
left hand.
Detective McGowen received his first break in the case on November 25, when
surveillance video from the Family Medical Clinic located next door to the Delta
Express/Mapco on Harding Place, documented activities related to the robbery including
the make, model and color of the vehicle and the men involved. That surveillance footage
matched up with Detective McGowen’s observation of Defendant and his gold, late-model
Toyota Camry the day after the Delta Express/Mapco robbery on November 24, 2017.
Based on his brief conversation with Defendant, Detective McGowen learned that
Defendant was left-handed. He also obtained a record of Defendant’s cell phone history
showing that Defendant was in the vicinity of the robbed stores around the timeframe of
the robberies on November 2, 9, 15, 18, 20, 24, 25, and 30, 2017. Surveillance footage and
still photographs from the robberies showed that Defendant was similarly dressed in a
hoodie or hooded jacket, gloves, and a face covering. The robber was always armed with
a gun which he held in his left hand as depicted in the surveillance footage. Proof of the
robberies was therefore relevant to a material issue in the case and highly probative of
Defendant’s identity as the robber. Thus, the second prong of the severance test was met.
Defendant’s reliance on Adams and Hallock is misplaced on the second prong. In
Hallock, evidence of the defendant’s conduct against victim K was not relevant in a trial
for acts committed against victim J, because each victim identified the defendant as her
rapist, and none of the offenses was relevant for some other material issue such as intent,
motive, absence of mistake and accident. 875 S.W.2d 292. Therefore, evidence of the
crimes involving victim K was not admissible in a trial involving crimes against victim J.
Id. In Adams, the trial court made no findings on whether the other crimes were admissible
for some other purpose. This court held that the felony-murder of the foreign exchange
- 42 -
student could have been tried without proof or reference from the convenience store
robbery, and vice versa. 859 S.W.2d at 362. Griffin is not helpful to Defendant because
although the trial court held that proof of the crimes was admissible for identity and absence
of mistake, this court declined to review the trial court’s finding because the first prong
had not been met. 2002 WL 1482689, at *7.
Furthermore, the trial court instructed the jury to consider each count separately.
Here, the jury was instructed that “[t]he crime charged or included in each count of the
indictment is a separate and distinct offense. You must decide each charge separately on
the evidence and law applicable to it.” Without evidence to the contrary, we presume the
jury followed the trial court’s instructions. State v. Williams, 929 S.W.2d 385, 387 (Tenn.
Crim. App. 1996); see also State v. Harbison, 539 S.W.3d 149, 163 (Tenn. 2018) (“[t]o
overcome this presumption, the defendant must show by clear and convincing evidence
that the jury failed to follow the trial court’s instructions”). The trial court did not abuse
its discretion in denying Defendant’s motion to sever the counts and allow him eleven
separate trials. He is not entitled to relief.
II. Motion to Suppress Defendant’s Interview
Defendant claims the trial court erred in denying his motion to suppress his
admissions in his interview because they were involuntarily made due to his intoxication.
Defendant also claims his statement was the product of police coercion because the
detectives threatened to arrest Defendant’s mother if he did not confess. The State counters
that the trial court properly denied the suppression motion because the record reflects that
Defendant made his statements freely and voluntarily. Because the record does not
preponderate against the trial court’s findings against Defendant, we affirm the denial of
the motion to suppress.
We review a trial court’s ruling on a motion to suppress by affording the prevailing
party the “strongest legitimate view of the evidence and all reasonable and legitimate
inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998); State v. Martin, 505 S.W.3d 492, 500 (Tenn. 2016). The trial court’s findings
of fact in a suppression hearing are upheld unless the evidence preponderates against them.
Martin, 505 S.W.3d at 500; Keith, 978 S.W.2d at 864. The application of the law to the
facts found by the trial court is a question of law and is reviewed on appeal de novo. State
v. Clayton, 535 S.W.3d 829, 846 (Tenn. 2017); see also State v. Hawkins, 519 S.W.3d 1,
32-33 (Tenn. 2017); State v. Willis, 496 S.W.3d 653, 686 (Tenn. 2016); State v. Climer,
400 S.W.3d 537, 556 (Tenn. 2013).
The right against self-incrimination is protected under both the Federal and State
constitutions. See U.S. Const. amend. V; Tenn. Const. art. 1, § 9. The Fifth Amendment,
- 43 -
made applicable to the States by the Fourteenth Amendment, provides that “[n]o person ...
shall be compelled in any criminal case to be a witness against himself.” Vega v. Tekoh,
142 S. Ct. 2095, 2101 (2022) (quoting Malloy v. Hogan, 378 U.S. 1, 6 (1964)). This Clause
“permits a person to refuse to testify against himself at a criminal trial in which he is a
defendant” and “also ‘privileges him not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.’” Id. (citations omitted).
“The test of voluntariness for confessions under Article 1, § 9 of the Tennessee
Constitution is broader and more protective of individual rights than the test for
voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996). A voluntary statement must be free from “any sort of threats or violence, nor
obtained by any direct or implied promises, however, slight, nor by exertion of any
improper influence.” Id. (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)).
“A defendant’s subjective perception alone is not sufficient to justify a conclusion of
involuntariness in the constitutional sense.” Id. (citing State v. Brimmer, 876 S.W.2d 75,
79 (Tenn. 1994)).
“[C]oercive police activity is a necessary predicate to finding that a confession is
not voluntary.” Brimmer, 876 S.W.2d at 79. “[T]he essential inquiry under the
voluntariness test is whether a suspect’s will was overborne so as to render the confession
a product of coercion.” Climer, 400 S.W.3d at 568. The same standard of analysis applies
whether a statement is the product of physical intimidation, psychological pressure, or
intoxication. Intoxication does not automatically render a confession invalid. State v.
Green, 613 S.W.2d 229, 232-33 (Tenn. Crim. App. 1980) (a statement provided by a
suspect who is under the influence of drugs is admissible so long as the statement is
coherent); State v. Perry, 13 S.W.3d 724, 739 (Tenn. Crim. App. 1999) (hearing impaired
and chronic glue using defendant’s waiver of Miranda rights was knowing and voluntary
where the effect of defendant’s last ingestion of glue was “going away” at the time he read
his rights, defendant possessed above-average intelligence and provided generally
responsive and coherent answers to officer’s questions); State v. Terrence Lee Hannah,
No. 01C01-9711-CC-00540, 1998 WL 765713, *5-*6 (Tenn. Crim. App. Nov. 4, 1998)
(despite a blood alcohol content of 0.28 an hour before his interview and the smell of
alcohol on his breath, defendant gave a knowing and intelligent statement where he was
coherent and responsive to questioning and was no longer incapacitated according to
questioning officers); State v. Roy Laverne Morris, No. 10, 1991 WL 16289, at *2 (Tenn.
Crim. App. Feb. 13, 1991) (despite measuring 0.20 on intoximeter, defendant’s waiver was
knowing and voluntary where he gave a “coherent and rational” explanation of events).
- 44 -
To determine the voluntariness of a statement, the court must examine the totality
of the circumstances. Id. (quoting Dickerson v. United States, 530 U.S. 428, 434 (2000)).
Circumstances relevant to this determination include:
[T]he age of the accused; his lack of education or his intelligence level; the
extent of his previous experience with the police; the repeated and prolonged
nature of the questioning; the length of the detention of the accused before
he gave the statement in question; the lack of any advice to the accused of
his constitutional rights; whether there was an unnecessary delay in bringing
him before a magistrate before he gave the confession; whether the accused
was injured[,] intoxicated[,] or drugged, or in ill health when he gave the
statement; whether the accused was deprived of food, sleep [,] or medical
attention; whether the accused was physically abused; and whether the
suspect was threatened with abuse.
Id. (quoting State v. Huddleston, 924 S.W.2d 666, 671(Tenn. 1996)).
In its order denying the motion to suppress Defendant’s interview, the trial court
summarized the evidence at the suppression hearing and analyzed it in light of the pertinent
law. The trial court resolved the conflicting testimony relevant to Defendant’s arguments
that his confession was involuntary due to intoxication and police coercion in the State’s
favor. Once so determined, the presumption of correctness may only be overcome on
appeal if the evidence in the record preponderates against the trial court’s findings. See
Martin, 505 S.W.3d at 500; Keith, 978 S.W.2d at 864. Here, the evidence in the record
overwhelmingly supports the trial court’s findings.
First, the trial court accredited the testimony of the officers on the issue of
intoxication and specifically found “no evidence” of Defendant’s faculties to be so
compromised or impaired to render his statement involuntary and unknowing:
The Court credits the testimony of the officers, and audio and video
recordings support[] their testimony. The video recording of the interview
shows the Defendant engaged in coherent narratives in response to police
questioning. There is no evidence the Defendant’s faculties were so impaired
that his statement could not be considered the product of a “free mind and
rational intellect.”
Neither Officer Stanfield nor Detective McGowen noticed anything to suggest that
Defendant was under the influence. Their testimonies are corroborated by the videotape
of the interview which shows that throughout the two-hour questioning, Defendant was
cooperative, displayed a sober demeanor, was aware of the gravity of the situation, and
- 45 -
gave answers that were logical and responsive to the questions asked. As noted by the trial
court, Defendant did not admit to committing all of the aggravated robberies. He admitted
to specific robberies, identified himself in the screenshots of surveillance footage, and
provided information on what he stole and recalled the ethnicity of a particular store
employee. As Defendant points out in his sufficiency challenge, he denied robbing the
Delta Express on November 26 which was the target of count eight. In doing so, he stated
that he always wore glasses whereas the robber seen in the pertinent surveillance footage
was not wearing any glasses. Defendant’s recollection and recitation of the facts pertinent
to the robberies show that his statement was the product of “a free mind and rational
intellect.”
Moreover, in a phone call to his mother directly following the interview, Defendant
“bet” that he could pass a drug test “right then” and stated that he had not used heroin since
he was released from detox. The totality of the circumstances of the interview reflect a
statement that was voluntarily and knowingly made.
Next, in denying Defendant’s claim that his statement was the product of police
coercion, the trial court accredited Detective McGowen’s testimony concerning any
reference to Defendant’s mother in the interview:
Defendant testified the police gave him the impression his mother was
driving the getaway car at a robbery. He said he was worried about what
would happen to her and ultimately confessed because he did not want the
police to bother his mother. He testified he believed the police were going
to arrest his mother.
Detective [McGowen] denied ever telling the Defendant his mother was at
risk because her car was used for a robbery. Detective [McGowen] explained
that in the context of questioning the Defendant about the November 5
robbery at Walgreens, Detective [McGowen] informed the Defendant that
witnesses had mentioned seeing a light Mercury Grand Marquis, and the
police knew the Defendant’s mother owned a car consistent with the witness
description.
The Court credits the detective’s testimony. Again, the interview recordings
and transcripts belie the Defendant’s characterization of his interview.
During the interview and the smoke break, the Defendant denied using his
mother’s vehicle during any of the robberies he committed.
***
- 46 -
Although the Defendant initially misunderstood the detective several times
during the interview, the detectives informed the Defendant they waited to
stop him while he was driving, instead of going inside his mother’s home
(where the Defendant lived) to make the arrest, because they did not want to
bother his mother. During those points in the conversation, the Defendant
expressed appreciation for the officers’ respect. He stated he appreciated
they had not involved his mother or her home in their investigation, and he
appreciated they waited to arrest him outside her neighbors view while
acknowledging he had been “drug out of there [his mother’s home] by police
before.”
Based on the totality of the evidence, the Court finds no evidence of coercive
police activity or exertion of any improper influence to render the
Defendant’s confession as not made voluntarily. The Defendant’s statements
are admissible.
Affording the State the “strongest legitimate view of the proof and all reasonable
and legitimate inferences that may be drawn from that evidence” as the prevailing party,
we agree with the trial court and conclude that Defendant’s statement was not the product
of undue police coercion concerning his mother.
III. Motion to Disqualify the Office of the District Attorney General
Defendant claims the trial court erred in denying his motion to disqualify the
Davidson County District Attorney’s Office because District Attorney General Glenn Funk
had an actual conflict of interest in having previously represented Defendant on a case
which later served as a qualifying conviction for Defendant to be sentenced as a repeat
violent offender. Defendant argues that General Funk’s conversations with ADA King on
her decision to seek the repeat violent offender designation in his case and General Funk’s
agreement with the decision before and after the State filed its notice and after General
Funk learned of the conflict constituted participation in the prosecution of Defendant’s case
requiring disqualification of the entire office. He contends further that the trial court’s
failure to disqualify the Davidson County District Attorney’s Office constitutes
constitutional structural error requiring automatic reversal.
The State argues that the trial court properly exercised its discretion in denying
Defendant’s motion to disqualify the District Attorney’s Office because General Funk did
not prosecute the case and he did not reveal any confidences gained from the former
representation to ADA King. The State also argues that given the mandatory nature of the
repeat violent offender, the trial court properly determined that disqualification was not
- 47 -
necessary where Defendant had sufficient prior felony convictions to qualify as a repeat
violent offender.
A trial court’s decision to disqualify an attorney for a conflict of interest and to
impute an attorney’s conflict of interest upon the attorney’s firm is reviewed for an abuse
of discretion. State v. Orrick, 592 S.W.3d 877, 882 (Tenn. Crim. App. 2018) (citing
Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001)); State v. Mark Steven Treuchet,
No. E2019-00663-CCA-R3-CD, 2020 WL 4346756, at *15 (Tenn. Crim. App. July 29,
2020); State v. Derek T. Grooms, No. W2019-01324-CCA-R10-CD, 2020 WL 9171956,
at *9 (Tenn. Crim. App. Nov. 25, 2020).
Discretion is abused by applying an incorrect legal standard or reaching a decision
which is against logic or reasoning that caused an injustice to the party complaining.
Orrick, 592 S.W.3d at 882 (citing Shirley, 6 S.W.3d at 247). In determining whether the
trial court has applied an incorrect legal standard, “appellate courts are not required to defer
to a trial court’s interpretation of the Code of Professional Responsibility or to its decisions
regarding legal standards applicable to a particular disqualification motion.” State v.
Coulter, 67 S.W.3d 3, 28 (Tenn. Crim. App. 2001) (citations omitted), abrogated on other
grounds by State v. Jackson, 173 S.W.3d 401 (Tenn. 2005).
In addressing this issue, the trial court must determine whether the prosecutor who
has the conflict of interest participated in the ongoing prosecution, including the disclosure
of any confidences, and whether the prosecution has established that the prosecutor has
been screened from the prosecution. Coulter, 67 S.W.3d at 30; see also Clinard, 46 S.W.3d
at 184. An actual conflict of interest “includes any circumstances in which an attorney
cannot exercise his or her independent professional judgment free of ‘compromising
interests and loyalties.’” State v. White, 114 S.W.3d 469, 476 (Tenn. 2003) (quoting State
v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000)). A prosecutor’s actual conflict of
interest and disqualification does not require vicarious disqualification of the “entire
district attorney general’s office . . . so long as the attorney at issue does not disclose
confidences or otherwise participate in the prosecution.” State v. Tate, 925 S.W.2d 548,
556-57 (Tenn. Crim. App. 1995); see also Mattress v. State, 564 S.W.2d 678, 680 (Tenn.
Crim. App. 1977) (trial court did not abuse its discretion by determining that an appearance
of impropriety was not created by disqualifying the assistant district attorney with an actual
conflict of interest where another assistant attorney general prosecuted the case).
When a prosecutor has an actual conflict of interest creating an appearance of
impropriety, “ [e]arly and adequate screening . . . should resolve [the] problem.’ ” Coulter,
67 S.W.3d at 32 (quoting Tate, 925 S.W.2d at 556). “The appearance of impropriety is not
the central concern” in the context of a defense attorney joining a district attorney’s office.
Id. 67 S.W.3d at 32-33. Rather, the issue is “whether a disclosure of confidential
- 48 -
information would violate a criminal defendant’s constitutional rights, including the
privilege against self-incrimination, the effective assistance of counsel, a fair and impartial
trial, and due process of law.” Id. A confidence has been defined as any “information
protected by the attorney-client privilege under applicable law.” Tate, 925 S.W.2d at 554.
Our review is informed by Rule 1.11, the specialized rule regarding public service
attorneys. See Orrick, 592 S.W.3d at 891 (Rule 1.11 applies to whether a disqualified
prosecutor’s conflict of interests should be imputed upon a district attorney general’s
office).
There is no real dispute between the parties that General Funk had an actual conflict
of interest disqualifying him from participating in Defendant’s prosecution. See Tenn. Sup.
Ct. Rule 8, RPC 1.11(d)(2)(i), 1.9(a). General Funk testified at the motion hearing that he
represented Defendant on the 1989 Cheatham County aggravated robbery conviction and
that he prepared and filed a motion to suppress in that case. The issue here is whether he
participated in the prosecution of Defendant by talking with ADA King after he learned of
the conflict and agreed with her decision to seek the repeat violent offender designation.
We turn first to the trial court’s findings:
The Court credits the testimony of General Funk as well as [ADA] King’s
statement she did not state the Defendant[‘]s name to General Funk during
her case synopsis. Regardless, the Court finds no basis for recusal in light of
the mandatory nature of the repeat violent offender sentencing statute.
The statute mandates a trial court “shall sentence a defendant who qualifies
as a repeat violent offender to life without possibility of parole. The defense
argues the limited use of the repeat violent offender statute demonstrates its
discretionary use; however, as the Court noted during the hearing, only a
finite number of offenders qualify for “repeat violent offender status given
the statutes requirement of having two or more qualifying convictions
involving separate periods of incarceration. Here, should the Defendant be
convicted of any of the twelve aggravated robberies for which he is charged,
he unequivocally qualifies as a repeat violent offender in light of his criminal
history, which includes an aggravated robbery conviction from his 1989
guilty plea in Cheatham County and his three aggravated robbery convictions
from his 1993 guilty plea in Davidson County, as the convictions in these
two cases involved separate periods of incarceration.
(Internal citations omitted).
- 49 -
The trial court accredited the testimony of General Funk and ADA King regarding
their first conversation about the case. The trial court however, made no findings regarding
the second conversation. The trial court instead relied on the mandatory nature of the repeat
violent offender statute to deny the motion to disqualify.
In his reply brief, Defendant makes the following assertion about the possible
disclosure of confidential information in the second conversation:
At that point, ADA King knew that General Funk had confidential
information about [Defendant], and that General Funk approved a life
without parole sentence. While General Funk did not convey the secrets
[Defendant] had shared with him to ADA King, his repeated approval of
seeking a life without parole sentence of [Defendant] raises the possibility –
or at least the perception – that his knowledge of [Defendant]’s confidences
factored into his reaffirmed support for a life without parole sentence.
We cannot make the leap Defendant does regarding the conversations between
General Funk and ADA King. While we are likewise concerned that General Funk spoke
with ADA King about the case after the motion to disqualify had been filed, there is nothing
in the record to show that a confidence was divulged relevant to the current prosecution
and materially adverse to Defendant. There is no proof that General Funk revealed any
confidences gained from his former representation relevant to the prosecution of the case.
Defendant’s 1989 Cheatham County conviction was a matter of public record.
Moreover, as found by the trial court, the status of repeat violent offender did not
hinge on General Funk’s approval of the request. The status of repeat violent offender is
made out by the State upon showing at a hearing, following conviction of a defendant of a
triggering felony, (1) that defendant has been convicted of two felonies and is among those
specified in Tennessee Code Annotated section 40-35-120(a)(1)-(2) and (b)(1); and (2) that
each of the convictions were for separate offenses, committed at different times and on
separate occasions. The documentary evidence either satisfies the statutory requirements
or it fails in some respect. See State v. Milton Lebron Byrd, No. E2006-02619-CCA-R3-
CD, 2008 WL 886269, at *6 (Tenn. Crim. App. Apr. 2, 2008), (“repeat violent offender
statute is constitutional and pursuant to the statute, the trial court must order "the mandatory
sentence of life without the possibility of parole”); State v. Thomas D. Stanton, No. M2003-
03049-CCA-R3-CD, 2005 WL 639139, at *14-15 (Tenn. Crim. App. Mar. 17, 2005)
(modifying the defendant’s sentence from life plus 37 years because “the trial court was
required to impose a sentence of life imprisonment without the possibility of parole as to
the defendant’s aggravated robbery conviction” because his prior convictions made his
subject to the repeat violent offender sentencing statute).
- 50 -
The State introduced certified copies of Defendant’s prior violent felonies at the
sentencing hearing. Defendant did not object to the validity of the judgments. Rather,
Defendant challenged whether the prior aggravated robbery convictions involved separate
periods of incarceration to which the trial court reviewed and recited Defendant’s criminal
history beginning with the 1989 Cheatham County conviction. Defendant did not object
or put on any rebuttal proof to the trial court’s finding that Defendant’s prior aggravated
robbery convictions resulted in distinct periods of incarceration. Accordingly, the State’s
evidence of Defendant’s repeat violent offender status was uncontroverted and sufficient
to support a finding beyond a reasonable doubt that Defendant is a repeat violent offender
as defined in the relevant statutory provision. As such, the trial court was required to
impose a sentence of life imprisonment without the possibility of parole as to Defendant’s
aggravated robbery convictions.
Although this court is concerned by the apparent lack of screening procedure and
General Funk’s decision to have a second conversation with ADA King in which he
reiterated his earlier assessment for the repeat violent offender status after learning from
Defendant’s motion to disqualify that he had previously represented Defendant, we are
constrained to hold that the trial court did not abuse its discretion.
IV. Sufficiency of the Evidence
Defendant claims the evidence is insufficient to support his conviction for the
November 26 aggravated robbery of the Delta Express on Thompson Lane as charged in
count eight of the indictment because the evidence did not establish his identity as the
robber beyond a reasonable doubt. The State contends the evidence is sufficient to support
the conviction.
When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. “A guilty verdict ‘removes
the presumption of innocence and replaces it with a presumption of guilt.’” State v.
Reynolds, 635 S.W.3d 893, 914 (Tenn. 2021) (quoting State v. Gentry, 538 S.W.3d 413,
420 (Tenn. 2017)); State v. Allison, 618 S.W.3d 24, 33 (Tenn. 2021). The burden is shifted
to the defendant on appeal to demonstrate why the evidence is insufficient to support the
conviction. Allison, 618 S.W.3d at 33; State v. Jones, 589 S.W.3d 747, 760 (Tenn. 2019).
The relevant question the reviewing court must answer is whether any rational trier of fact
could have found the accused guilty of every element of the offense beyond a reasonable
doubt. Allison, 618 S.W.3d at 33-34 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)); see also Tenn. R. App. P. 13(e).
On appeal, “all reasonable and legitimate inferences from the evidence must be
drawn in favor of the prosecution and all countervailing evidence discarded.” State v.
- 51 -
Weems, 619 S.W.3d 208, 221 (Tenn. 2021) (same standard of review applies when
examining the sufficiency of the evidence and a motion for judgment of acquittal). As
such, this court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Stephens, 521 S.W.3d 718, 724 (Tenn. 2017).
Questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier
of fact and not the appellate courts. Allison, 618 S.W.3d at 34; Jones, 589 S.W.3d at 760.
“This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both.” State v. Miller, 638 S.W.3d 136, 157
(Tenn. 2021) (citing State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)).
The identity of the perpetrator is an essential element of any crime. Miller, 638
S.W.3d at 158; State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson,
519 S.W.2d 789, 793 (Tenn. 1975)). Identity may be established by circumstantial
evidence alone. Miller, 638 S.W.3d at 158 (citing State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002)).
Defendant argues that the lack of proof in this count was illustrated by the
prosecutor’s closing argument where she relied on proof of the other robberies to bolster
proof of the robbery in count eight. Defendant argues that this court may not consider
proof from the other robberies as supporting evidence for this conviction. To be clear,
Defendant is not challenging the propriety of the prosecutor’s comment during closing
argument as a stand-alone issue. It is well-established that arguments of counsel are not
evidence. Here, the jury received this instruction and we presume that the jury followed
it. State v. Jordan, 325 S.W.3d 1, 66 (Tenn. 2010); State v. Young, 196 S.W.3d 85, 111
(Tenn. 2006)
The Delta Express employee, Ms. Rice, could not identify the robber. Of the
robberies, this was the only one Defendant did not confess to committing. As proof
connecting Defendant to this robbery, the State introduced Defendant’s cell phone records
showing that Defendant’s phone communicated with a cell phone tower near the Thompson
Lane Delta Express six minutes after the robbery. The robbery was committed at 5:12 p.m.
Defendant’s phone made an outgoing call at 5:28 p.m. and received an incoming call at
5:30 p.m. The State argues that surveillance footage and still photographs from the Delta
Express robbery showed a man who was similar in size, build, and dress as Defendant was
depicted in other robberies. Presuming the jury afforded the State all reasonable inferences
from this evidence, we conclude the evidence was minimally but legally sufficient to
establish Defendant’s identity as the person who robbed the Delta Express as charged in
count eight.
- 52 -
V. Plain Error Review of Double Jeopardy Claim on Count One and Two
If reviewed for plain error, Defendant claims counts one and two of the indictment
violate the Double Jeopardy Clause because the evidence establishes a single robbery of a
business. He asks this Court to reverse and dismiss his conviction for aggravated robbery
in either count one or count two. Alternatively, he contends the convictions in counts one
and two should be merged into a single conviction for aggravated robbery. The State
concedes that the two counts violate Double Jeopardy under plain error but contend they
should be merged into a single conviction. Upon reviewing this issue for plain error, we
agree with the parties that counts one and two violate double jeopardy. For the reasons
provided, count two is merged into count one.
As the parties acknowledge, issues raised for the first time on appeal are waived.
See Tenn. R. App. P. 36(a); State v. Harbison, 539 S.W.3d 149, 164 (Tenn. 2018) (“[t]o
preserve the double jeopardy issue, [the defendant] had to raise it in his motion for new
trial and appellate brief”). We may nevertheless use our discretion to review unpreserved
errors and grant relief under the plain error doctrine. State v. Minor, 546 S.W.3d 59, 65
(Tenn. 2018). To demonstrate plain error, Defendant must show that: (1) the record must
clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law
was breached; (3) a substantial right of the accused was violated; (4) the accused did not
waive the issue for tactical reasons; and (5) consideration of the error is necessary to
achieve substantial justice. State v. Rimmer, 623 S.W.3d 235, 255-56 (Tenn. 2021), reh’g
denied (May 21, 2021), cert. denied, 142 S. Ct. 790 (2022) (citing State v. Martin, 505
S.W.3d 492, 504 (Tenn. 2016). “[A]n appellate court need not consider all criteria when
the record demonstrates that one of them cannot be established.” State v. Vance, 596
S.W.3d 229, 254 (Tenn. 2020).
“The Double Jeopardy Clause protects a person from being prosecuted twice ‘for
the same offence.’” Denezpi v. United States, 142 S.Ct. 1838, 1842 (2022); see U.S. Const.
amend. V; Tenn. Const. art. I, § 10. Under both the federal and our State constitutions, a
defendant is protected against (1) a second prosecution for the same offense after acquittal;
(2) a second prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense. State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).
This case concerns the third category.
This case also involves a unit-of-prosecution claim. “Unit-of-prosecution claims
arise when defendants who have been convicted of multiple violations of the same statute
assert that the multiple convictions are for the ‘same offense.’” Id. at 543. In such
instances, “courts determine whether a single offense is involved not by applying the
Blockburger test, but rather by asking what act the legislature intended as the ‘unit of
prosecution’ under the statute.” Id. In Tennessee, the unit of prosecution for aggravated
- 53 -
robbery is the number of thefts, not the number of people threatened during the robbery.
State v. Franklin, 130 S.W.3d 789, 797-98 (Tenn. Crim. App. 2003). When a defendant is
charged with multiple counts of aggravated robbery based upon a single taking from a
business, only one conviction can stand. Id. at 798.
Upon reviewing the record and the binding authority of Franklin, we agree with
Defendant and accept the State’s concession that separate convictions for aggravated
robbery in counts one and two constitute multiple punishments for the same offense. See
also State v. James Carlos Ward, No. M2009-00417-CCA-R3-CD, 2010 WL 1949155, at
*9 (Tenn. Crim. App. May 14, 2010); State v. Cedric Anthony, No. W2004-00255-CCA-
MR3-CD, 2004 WL 2848380, at *7 (Tenn. Crim. App. Dec. 10, 2004) (reducing
convictions for two out of four counts of aggravated robbery to aggravated assault where
defendant robbed one customer and the cash registers of three employees); State v. Marcus
Johnson, No. W2002-00987-CCA-R3–CD, 2003 WL 22080778, at *11 (Tenn. Crim. App.
Sept. 4, 2003) (modifying one conviction for especially aggravated robbery to aggravated
assault where two store employees were shot during a robbery in which money was taken
from the store); State v. Hezekiah Cooper, No. W2005-02481-CCA-R3-CD, 2007 WL
4462991, at *12 (Tenn. Crim. App. Dec. 20, 2007) (three of defendant’s four aggravated
robbery convictions committed in the presence of mother and her three children in their
family home violated double jeopardy where defendant’s theft of one of the children’s
Christmas present constituted a single theft from the residence).
The record shows that Defendant committed a single theft from Walgreens on
Donelson Pike on November 11, by the display of a handgun, albeit in the presence of three
employees, Ms. Oropeza, Ms. Adcock, and Ms. Hunter. Although Defendant is raising
this issue for the first time on appeal, we grant relief under plain error “to correct an error
of constitutional dimension and to prevent manifest injustice” just as we did in Franklin.
130 S.W.3d at 798.
In terms of relief, we conclude that merger of the two counts is the proper remedy.
In Franklin, this court modified the second aggravated robbery conviction because the
evidence supported a conviction for the lesser included offense of aggravated assault. Id.As both parties point out, in Franklin, the jury was instructed on aggravated assault as a
lesser-included offense. The jury was not charged with aggravated assault as a lesser
included offense in this case. Thus, modifying either count to aggravated assault is not an
option here.
Defendant urges this court to dismiss either count, or in the alternative, merge the
two counts. The State contends that merger of the two counts is the proper remedy based
on State v. Zirkle, 910 S.W.2d 874, 898 (Tenn. Crim. App. 1995) (discussing merger of
convictions for first degree premeditated murder and felony murder). Merger is required
- 54 -
when a jury returns guilty verdicts on two counts representing alternative theories of the
same offense. State v. Davidson, 509 S.W.3d 156, 217 (Tenn. 2016). Here, the dual
aggravated robbery convictions in counts one and two represented alternative theories of
committing robbery in the Walgreens. In so holding, this court relies on both Zirkle and
State v. Travei Pryor, No. E2012-02638-CCA-R3-CD, 2015 WL 9271433 (Tenn. Crim.
App. Dec. 18, 2015). Although Pryor involved the break-in of a residence, the defendant
was charged and convicted of four counts of aggravated robbery including two alternative
theories of aggravated robbery against a resident of the home, and two alternative theories
of aggravated robbery against a guest. 2015 WL 9271433, at *5. This court affirmed the
aggravated robbery convictions but remanded the case in part to merge the two aggravated
robbery convictions against the resident and the two aggravated robbery convictions
against the guest. Id. at *10.
The trial court here erred in failing to merge counts one and two. We remand for
entry of corrected judgments merging count two into count one on two separate uniform
judgment documents as set forth in State v. Berry, 503 S.W.3d 360 364-65 (Tenn. 2015).
In all other respects, we affirm the judgment of the trial court.
Conclusion
In summary, we remand for entry of separate judgment forms for count one and
count two reflecting the merged conviction. The judgments of the trial court are affirmed
in all other respects.
____________________________________
JILL BARTEE AYERS, JUDGE
- 55 -