State of Tennessee v. Joshua Hunter Bargery ( 2017 )

10/06/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 2, 2017 Session
STATE OF TENNESSEE v. JOSHUA HUNTER BARGERY
Appeal from the Circuit Court for Lake County
No. 11-CR-9586 R. Lee Moore, Jr., Judge
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No. W2016-00893-CCA-R3-CD
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Joshua Hunter Bargery (“the Defendant”) appeals his Lake County Circuit Court
convictions for two counts of first degree felony murder and two counts of especially
aggravated robbery, for which he received a total effective sentence of two consecutive
life sentences. On appeal, the Defendant contends that: (1) his rights under the Fourth
Amendment of the United States Constitution and Article I, section 7 of the Tennessee
Constitution were violated by the trial court’s denial of his motions to suppress evidence
obtained during the search of the Defendant and his automobile; (2) the trial court
erroneously excluded as hearsay the Defendant’s testimony regarding statements made by
Mr. Hill, Mr. Hernandez, and “the three Mexicans”; (3) the trial court erred in excluding
relevant and material testimony from the Defendant’s crime scene expert; (4) the
Defendant is entitled to a new trial based on prosecutorial misconduct; (5) the trial court
erred in denying the Defendant’s motion to dismiss the indictment based on law
enforcement’s intentional destruction of exculpatory evidence; (6) the Defendant’s due
process rights were violated by the State’s failure to disclose Mr. Hernandez’s complete
criminal record and the State’s agreement not to treat him as a “suspect”; (7) the trial
court erred by admitting a copy of a letter written by the Defendant, which was not
produced by the State during discovery; (8) the trial court erred in its instructions to the
jury; (9) the evidence was insufficient to support his convictions; (10) the trial court erred
when it imposed consecutive sentences; (11) the trial court erred in denying the
Defendant’s motion for recusal; (12) the Defendant is entitled to a new trial based on
violations of the trial court’s order of sequestration; and (13) cumulative error deprived
the Defendant of due process and a fair trial. Following a thorough review of the record
and applicable law, we reverse the judgments of the trial court and remand for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
and Remanded for a New Trial
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.
J. Houston Gordon (on appeal and at trial); Lyle Reid (on appeal and at trial); Amber
Griffin Shaw (on appeal and at trial); Charles Brasfield (at trial); and Samuel L. Ivy (at
trial), Covington, Tennessee; and Curtis F. Hopper (at trial), Savannah, Tennessee for the
appellant, Joshua Hunter Bargery.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; C. Phillip Bivens, District Attorney General; and Lance E. Webb, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
In July 2011, the Lake County Grand Jury indicted the Defendant on two counts
each of first degree premeditated murder, first degree felony murder in the perpetration of
a robbery or theft, and especially aggravated robbery, all in connection with the killing of
Clarence and Sue Shell (“Mr. and Mrs. Shell” or “the victims”). The State subsequently
filed a Notice of Intention to Seek the Death Penalty and of Aggravating Circumstances.
State’s Case-in-Chief
At a trial conducted April 20, 2015, to May 9, 2015, Ashleigh Shell, the victims’
granddaughter, testified that she last saw the victims at their home on Owl Hoot Road on
the evening of March 3, 2011. She was there with her boyfriend for an hour, and they
left at 9:18 p.m. At the time they left, the victims were still in their “day clothes” and
were not dressed for bed.
Will Shell, the victims’ grandson, testified that he went to the victims’ residence
the following morning—March 4, 2011. When he arrived, he found that the blinds were
drawn, both the front and back doors were locked, and there was blood on the front door.
He looked into a window and saw Mr. Shell lying on the floor. When his father, Paul
Shell, arrived at the residence, Will1 kicked in the front door. He went about three steps
inside the front door but then exited the house and waited for police to arrive. Will
1
Because several witnesses share the same surname, we will refer to some witnesses by their first
name. We intend no disrespect.
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testified that the victims usually went to bed around 9:30 or 10:00 p.m. He stated that
Mr. Shell was seventy years old at the time of his death and had open heart surgery
several years before the murder. He agreed, however, that Mr. Shell had been a strong
man for his age.
Paul Shell, the victims’ son, testified that family members had asked the victims to
move into the residence on Owl Hoot Road in October 2010 to “watch over the place,”
after Paul’s aunt, who had been living in the residence, went to live in a nursing home.
Paul stated that the victims’ residence was located on the same tract of land as the house
where the Defendant’s great-grandmother, Carlene Smith, used to live. He explained that
Mrs. Smith had been married to Paul’s great-uncle, before he passed away in September
2010.
Paul testified that the victims normally went to bed around 10:00 or 10:30 p.m.
He went to the victims’ residence on the morning of March 4, 2011, after learning that
Will was at the residence and could not get inside. After trying unsuccessfully to pry
open the back door, Will kicked in the front door. When they walked inside the
residence, Paul saw Mr. Shell lying on the floor in the living room in front of a chair. He
then walked into the kitchen where he found Mrs. Shell. He exited the house and called
911.
Robin Surratt, the victims’ daughter, testified that Mrs. Shell was sixty-eight years
old and Mr. Shell was seventy years old at the time of their deaths. Both were retired.
Mr. Shell had “heart issues” and had undergone bypass surgery, and Mrs. Shell retired
just before her death because of her declining health. Ms. Surratt testified that Mrs. Shell
had undergone one knee replacement surgery and was “a month away from having a
second knee replacement,” and she used a walker to assist her mobility.
Jason Allison testified that he was Chief Deputy at the Lake County Sheriff’s
Department in 2011. On the morning of March 4, he responded to the victims’ residence
with two other officers. When he arrived, Paul and Will Shell were in the driveway,
“sobbing” and becoming “physically ill.” Paul told him, “They’re dead. They’re both
dead.” When he entered the front door of the residence, Deputy Allison saw Mr. Shell’s
body, but he could not initially see Mrs. Shell. During a sweep of the residence, Deputy
Allison noticed that the house had been “ransacked.” Inside the victims’ bedroom, he
saw that “there was stuff just thrown on the bed, looked like jewelry and maybe
drawers[.]” There was a wallet in the floor of the bedroom and another in the floor of the
master bathroom. After securing the residence, Deputy Allison called the Tennessee
Bureau of Investigation (TBI) to the scene.
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Deputy Allison testified that, after the discovery of the victims’ bodies, he
received a phone call from Assistant Chief Kenny Lee with the Ridgely Police
Department, who stated that he had received a tip that the Defendant was “selling some
guns.” Because he knew from the victims’ family members that there were guns missing
from the victims’ residence, Deputy Allison instructed his deputies that if they saw the
Defendant while out on patrol they should “ask him if he was selling any guns[.]”
Later that evening, Deputy Allison responded to the residence of Dennis Chisholm
after a deputy located the Defendant at the residence. The Defendant was standing in the
driveway with deputies when he arrived. Deputy Allison read the Defendant his Miranda
rights and asked the Defendant if he had been selling guns. When the Defendant
indicated that he had not, Deputy Allison asked for consent to search the Defendant’s
vehicle. The Defendant responded, “Go ahead, it’s fine. There’s nothing in there.” The
Defendant also asked, “[I]s this about the murders on . . . Owl Hoot Road[?]” During the
search of the vehicle, Deputy Allison found a knife that appeared to have blood on it in
the area of the console, and another deputy discovered costume jewelry in the trunk.
Deputy Allison knew that the victims had likely been stabbed and that costume jewelry
had been taken from the scene. Deputy Allison arrested the Defendant and placed him in
the back of a patrol car. The Defendant was later interviewed at the Lake County Jail by
TBI agents. The following morning, the Defendant’s mother came to the jail to visit him.
However, when Deputy Allison informed the Defendant that his mother was there, the
Defendant said that he did not want to see her. The Defendant said, “Just tell her I’m
sorry for everything.”
On cross-examination, Deputy Allison testified that he was given the Defendant’s
cell phone after the Defendant’s arrest but that, after leaving the Chisholm residence, he
turned the phone over to Investigator Joseph Vernon of the Lake County Sheriff’s
Department. Deputy Allison acknowledged that he had known the Defendant since the
Defendant was approximately nine years old and stated that he had not known the
Defendant to be violent. The Defendant had no prior criminal record, but Deputy Allison
had heard that the Defendant smoked marijuana and dealt drugs. Deputy Allison
acknowledged that Shondell Hill was a known drug dealer in Lake County.
Investigator Joseph Vernon testified that he responded to the victims’ residence on
the morning of March 4, with Deputy Allison. He and Deputy Allison cleared the home,
where the victims were “obviously deceased.” Investigator Vernon began taking
photographs of the scene. In the kitchen, he saw blood on the floor and several
shoeprints in the blood.
Investigator Vernon stated that he did not go to the Chisholm residence but stayed
at the crime scene until the TBI technicians finished processing the scene. He later took
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possession of the Defendant’s cell phone from Deputy Allison. Investigator Vernon
testified that, in his experience, drugs dealers often communicate through text messages
but that they “usually delete [the text messages] after they follow through with the deal or
make arrangements for the deal.” Investigator Vernon testified that he allowed defense
counsel access to the cell phone on two occasions at the TBI office in Jackson. The
Defendant’s cell phone was also sent to the TBI crime lab in Nashville for forensic
testing, where the TBI conducted a “phone dump” and pulled “all the information off the
phone.” The information from the “phone dump” was later provided to the Defendant.
Investigator Vernon recalled that, a few days after the Defendant’s arrest, Mr. Chisholm
contacted him about a laptop computer that Mr. Chisholm found in his son’s bedroom.
Investigator Vernon took possession of the laptop, which was identified as belonging to
Mrs. Shell. Investigator Vernon also recovered a digital camera belonging to the victims,
which the Defendant sold after the murders.
On cross-examination, Investigator Vernon recalled that the television was on
when he entered the victims’ residence, but the screen was blue. He testified that a gun
cabinet in the master bedroom had “a red liquid smeared” on the handle and that the
cabinet was “ajar.” He took photographs of several areas of blood. There were blood
smears on the front door and storm door. Investigator Vernon stated that, several weeks
after the Defendant’s arrest, he learned that Lake County Sheriff Bryan Avery had gone
to Boyette’s Resort on Reelfoot Lake (“Boyette’s”) as part of the investigation.
Investigator Vernon went to Boyette’s and spoke to people there, including the
housekeepers. Investigator Vernon learned that, in the days leading up to the victims’
murders, there had been “an unknown male . . . either a mixed or Mexican with short
hair” staying in a cabin rented by the Defendant. The housekeepers stated that they found
a bloody towel in the bathroom of the cabin when they cleaned up the room on the
morning of March 4. They also found “marijuana shake,” fruit juice cans, and potato
chips in the cabin. On redirect examination, Investigator Vernon explained that by the
time he spoke to the housekeepers, they did not have the bloody towel, and the cabin had
been cleaned.
Susan Lee testified that on March 4 the Defendant came by her residence to talk to
her husband, Andy Lee, at about 3:00 p.m., and Mr. Lee went outside to meet the
Defendant. After this meeting, Mrs. Lee called her father-in-law, who was Assistant
Chief of the Ridgley Police Department, and told him that the Defendant had “some guns
and stuff that he was trying to sell.” Mrs. Lee agreed that the Defendant was laid back,
quiet, and had a passive personality. She never saw him violent or angry.
Andy Lee testified that the Defendant came to his house on the afternoon of March
4, 2011. He went outside and got inside the Defendant’s vehicle because it was raining.
Mr. Lee and the Defendant smoked marijuana together, and the Defendant showed him
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several items of property, including some jewelry in a Crown Royal bag and a digital
camera. The Defendant also had four or five “long barrel guns, rifles, shotguns” in the
trunk of his car, which the Defendant was trying to sell. Mr. Lee was not interested in
purchasing the guns, so the Defendant left. Mr. Lee then told his wife about the
conversation with the Defendant.
Mr. Lee testified that he had purchased marijuana from Mr. Hill in the past. He
testified that the Defendant was not a violent person and that he had never seen the
Defendant angry or agitated. He agreed that the Defendant was not very strong or tough
and generally avoided conflict. He testified that, when he spoke with the Defendant that
afternoon, he never discussed the details of the crime scene with the Defendant.
Kenneth Lee testified that he was the Assistant Chief of the Ridgely Police
Department in March 2011. He stated that Mr. Hill lived on North Main Street in
Ridgely, about a block from the police department, and that Mr. Hill was known for
selling drugs. He testified that he had no idea if his son, Andy Lee, had a relationship
with Mr. Hill. He did not know who his son bought drugs from but agreed that his son
“used to” use drugs. He stated that he did not learn until March 2015 that his daughter-
in-law had called in the anonymous tip regarding the Defendant’s attempting to sell guns.
Laquisha Tyler testified that she purchased a digital camera from the Defendant on
March 4, 2011, for $35. She recalled that the Defendant was also attempting to sell a
laptop. She later turned the camera over to the Lake County Sheriff’s Department. Ms.
Tyler stated that she had not known the Defendant to be a violent person and agreed that
he was “a laid[-]back kind of person.”
Curt Chisholm testified that the Defendant was his best friend and that the
Defendant often stayed at his home. He stated that the Defendant was “never the type to
argue” and that the Defendant had never been violent. On the evening of March 4, the
Defendant came to his home with a laptop. The Defendant was “bagging marijuana” in
Curt’s bedroom when a deputy knocked on the door to the residence. At that time, the
Defendant walked out the back door of the residence with the marijuana in his pockets.
Deputy Patrick Leake from the Lake County Sheriff’s Department testified that on
March 4, 2011, he was instructed by Deputy Allison to try to locate the Defendant
because the Defendant had attempted to “sell some guns.” That evening, he saw the
Defendant’s vehicle at the Chisholm residence. Deputy Leake knocked on the side door
under the carport and was greeted by Dennis Chisholm. Deputy Leake asked if the
Defendant was there, and Mr. Chisholm responded, “Yeah, he’s in.” Deputy Leake then
asked for permission to enter the residence, and Mr. Chisholm stated, “Yeah, come on
in.” Deputy Leake saw Curt Chisholm inside the residence and asked him about the
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Defendant’s location. Curt responded, “He just ran out the back door.” Deputy Leake
went to the back door, which was standing wide open. He looked out the door and saw
the Defendant standing by a shed in the backyard with his hands in his pockets. Deputy
Leake said, “Hunter, come here,” and the Defendant “walked right to [him].” He told the
Defendant that he wanted to talk to him and asked the Defendant to “come out front.” He
and the Defendant walked back through the residence and out the door and then stood in
the driveway in front of the house. Deputy Leake stated that the Defendant did not
appear intoxicated. He asked for permission to pat down the Defendant for weapons, and
the Defendant consented. During the pat down, Deputy Leake found a digital scale with
marijuana residue on it and a cell phone, which Deputy Allison took into his possession.
While other officers searched the Defendant’s car, Deputy Leake obtained permission
from Mr. Chisholm to search his backyard where he found numerous baggies of
marijuana.
Deputy Jason Tubbs testified that he responded to the Chisholm residence after
hearing Deputy Leake’s radio transmission that the Defendant’s vehicle was in the
driveway of the residence. A few seconds after the initial report, Deputy Leake
announced that the Defendant was “running out the back door” of the residence. Deputy
Tubbs arrived at the residence a few minutes later as Deputy Leake and the Defendant
were walking out the front door. Deputy Tubbs asked the Defendant for consent to
search his vehicle, and the Defendant said, “Go ahead.” However, Deputy Tubbs waited
for Deputy Allison to arrive before beginning a search. After Deputy Allison obtained
additional consent from the Defendant, Deputy Tubbs assisted in the search of the
vehicle. Inside the trunk, Deputy Tubbs found a Crown Royal bag containing jewelry.
When he informed Deputy Allison what he found inside the trunk, Deputy Allison
instructed Deputy Tubbs to stop the search. In his interactions with the Defendant, the
Defendant did not appear to be intoxicated.
Dennis Chisholm testified that he was at home on March 4, when deputies arrived.
He recalled that deputies asked for his consent to search his backyard, and he provided a
lantern to help in the search. There, they found baggies containing marijuana. After the
Defendant’s arrest, Sheriff Avery instructed Mr. Chisholm to look through his house and
“see if there’s anything there that didn’t belong[.]” Mr. Chisholm found a pistol “right
outside the back door” that did not belong to him and gave it to Sheriff Avery. Several
days later, Mr. Chisholm contacted Investigator Vernon and turned over a laptop that he
had found in his son’s bedroom. Mr. Chisholm stated that he knew the Defendant well
and that the Defendant came to his house “[a]bout every day.” He stated that the
Defendant was “[m]ild mannered. Nice. Courteous.” He never saw the Defendant angry
or acting in a violent manner.
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Lake County Sheriff Bryan Avery testified that he responded to the crime scene on
March 4 with Investigator Vernon and Deputy Allison, where he was advised that several
items of property were missing from the residence, including a camera, laptop, and guns.
Sheriff Avery also responded to the Chisholm residence that evening. The Defendant
was standing in the driveway with several deputies “standing around.” After Deputy
Allison obtained permission from the Defendant to search the Defendant’s vehicle,
Sheriff Avery opened the driver’s side door of the car and noticed a knife in the front
console. He took the knife out of its sheath and noticed that the knife had what appeared
to be a dry, red substance where the handle met the blade. Sheriff Avery recalled that he
collected a .22 caliber pistol with white paint on it from Mr. Chisholm, which was later
identified as belonging to the victims.
On cross-examination, Sheriff Avery stated that between September and March of
2011, he was not aware of any Mexican gangs, cartels, or the Mexican Mafia operating in
rural West Tennessee. Sheriff Avery testified that, on March 5 or 6, he received a phone
call from Judy Capps, who informed him that the Defendant “had rented a room from
her” at Boyette’s. Sheriff Avery went to the resort and spoke to Ms. Capps and two
housekeepers. The housekeepers said that a “Hispanic person, maybe Puerto Rican” had
stayed in Cabin 9—the cabin rented by the Defendant. Sheriff Avery went inside Cabin 9
and saw that it had been cleaned. Although he did not preserve the cabin, take
photographs, or take a formal statement from the housekeepers, Sheriff Avery informed
the TBI about Cabin 9. Sheriff Avery acknowledged that he did not file a written report
about having been to Boyette’s until October 2013, after the defense asked about Cabin 9.
He stated that, when he wrote the report, he was aware that there had been the “largest
single marijuana farm in the history of Tennessee” located on a bluff above Reelfoot
Lake in Obion County. Sheriff Avery testified that the marijuana had been found on a
farm leased for hunting purposes by a trooper with the Tennessee Highway Patrol, Brian
Wright. Sheriff Avery stated that Trooper Wright was being investigated but had not
been charged with anything related to the marijuana grow.
Special Agent Julian Conyers testified that he was a forensic scientist with the TBI
and was a member of the Violent Crime Response Team (“the Response Team”). He
testified that the Response Team arrived at the victims’ residence at 2:54 p.m. on March
4. Agent Conyers videotaped the crime scene and collected evidence. He collected a
bloody shoeprint on the linoleum floor in the kitchen by cutting out the piece of linoleum.
He also collected evidence from the Defendant’s vehicle, including a knife in a sheath
from the gear shift area of the vehicle. The Response Team released the crime scene to
the TBI agents in charge of the investigation at 8:40 p.m.
Special Agent Lawrence James testified that he was a forensic scientist, who
supervised about twenty other forensic scientists at the TBI crime lab in Memphis. Agent
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James responded to the crime scene with the Response Team on March 4. He testified
that his job at the scene was to perform screening tests for potential blood stains. He
recalled that the victims appeared to have “had their throats cut” and that there were large
amounts of blood at the scene. He collected a bloody washcloth found in the master
bathroom. Agent James also took swabs of what appeared to be blood stains from the
inside of the front door and door knob, the exterior screen door, the handle to a gun
cabinet in the master bedroom, and off of the surface of Mr. Shell’s body. He explained
that Mr. Shell was lying face down, and there were what appeared to be “essentially
vertical blood drops . . . on his skin[.]” Agent James cut out a stained area from a sheet
on the bed in the master bedroom and took a cutting from the love seat in the living room
because it contained a blood stain that “was a little bit suspicious” because it was
“removed . . . by ten feet or so from . . . the rest of the activity[.]”
Dr. Marco Ross, the Deputy Chief Medical Examiner for Shelby County, testified
that he conducted the victims’ autopsies. Mrs. Shell had multiple “sharp force[] injuries”
that were the result of stabbing or cutting motions with a sharp instrument. He identified
seven sharp force injuries to her head and neck area, a stab wound just above her breast
bone, and another stab wound in her right upper arm. Additionally, Mrs. Shell suffered
stab wounds to her left temple and left upper cheek and a “v-shaped wound” “right
behind the angle of the jaw.” He noted that there was an “incised wound” to the lower
front part of Mrs. Shell’s neck which was a “zigzag wound” that penetrated three inches
and completely transected the larynx. Dr. Ross explained that this wound “completely
cut across the right carotid artery on the right side of the neck,” and it cut across the left
jugular vein, esophagus, and into the “spine itself.” He testified that the cutting of the
jugular vein and carotid artery would result in a “tremendous amount of blood loss.” He
stated that this wound would have caused death quickly. Dr. Ross identified an area of
hemorrhage in the scalp on the back of Mrs. Shell’s head which was likely the result of
“blunt force[] impact” and was consistent with Mrs. Shell hitting her head on the
linoleum floor. He noted scratches on the underside of her left wrist that could have been
defensive wounds.
Regarding Mr. Shell, Dr. Ross testified that he had “multiple sharp force[]
injuries.” Mr. Shell suffered multiple stab wounds in the head, neck, left chest, and back,
and he had an incise wound to his right hand. Dr. Ross described the injuries to Mr.
Shell’s neck as four sharp force injuries on the right side that combined features of stab
and incise wounds and another stab wound towards the front of the neck that penetrated
three inches and cut across the carotid artery. Dr. Ross stated that this injury alone was
sufficient to cause Mr. Shell’s death. However, Dr. Ross found additional stab wounds
behind Mr. Shell’s left ear and on the back of his neck which penetrated four inches; two
stab wounds at the base of the neck; a stab wound to the left upper chest area that went
into the upper part of the left lung and was sufficient to cause death; a stab wound to the
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left upper back; and another stab wound to the right upper back. Dr. Ross also found an
incise wound on Mr. Shell’s right hand, which was “potentially a defensive wound.” He
stated that, in both victims, he found that the hyoid bone had been cut.
Special Agent Donna Nelson, a forensic scientist with the TBI, testified that she
responded to the crime scene on March 4, 2011, as the leader of the Response Team. In
that role, she directed other team members in their collection of items of evidence. Agent
Nelson stated that sixteen pieces of evidence were collected at the crime scene and that
twenty-seven items of evidence were collected in total. Agent Nelson explained that
subsequent testing showed that the blood stains from inside the front door, on the gun
cabinet handle, the washcloth in the bathroom, and on the sheet in the master bedroom
were a mixture of DNA from both victims. The swab of the front door knob failed to
indicate the presence of human DNA, and no DNA profile was obtained from the stain on
the exterior screen door due to insufficient or degraded DNA. Agent Nelson explained
that the testing of the items collected did not reveal the presence of DNA from someone
other than the victims.
Agent Nelson also tested the Defendant’s boots and bib overalls, but a
presumptive test failed to indicate the presence of blood. However, a presumptive test
did indicate blood on the Defendant’s sweatshirt. Further DNA testing on two areas of
the sweatshirt revealed a mixture of genetic material, in which Mr. Shell was the major
contributor. She stated that she tested the sleeve and the chest area of the sweatshirt and
found Mr. Shell’s DNA profile. Additionally, the knife from the console of the
Defendant’s vehicle was tested, and Agent Nelson found a DNA profile consistent with a
mixture of both victims’ DNA. Agent Nelson testified on cross-examination that the
knife from the Defendant’s vehicle was not checked for fingerprints, and the Response
Team did not have a blood spatter expert. Agent Nelson agreed that what appeared to be
a fingerprint in blood on Mrs. Shell’s walker was not collected or swabbed. However,
she stated that the crime scene documentation and analysis, photographs, and narrative
descriptions complied “with the standards that we have.” On redirect, the following
exchange took place:
Q. In your experience as a crime scene technician was there any
evidence with any apparent evidentiary value that was not collected at the
Shell residence?
A. Not to my knowledge.
Special Agent Suzann Lafferty, a forensic scientist with the TBI and expert in
fingerprint analysis, testified that she received a glass light cover from the front porch of
the victims’ residence, two wallets, a jewelry box, and jewelry from the Defendant’s
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trunk; she tried to lift latent prints from the items but found none. She also attempted to
lift and identify latent prints from the .22 pistol but was unable to identify any latent
prints. Agent Lafferty stated that the following items were not tested for latent prints: the
victims’ gun cabinet, front door and doorknob, exterior storm door, the knife from the
Defendant’s car, and the victims’ laptop.
TBI Special Agent Linda Littlejohn testified that she compared the tread designs
of the boots the Defendant was wearing at the time of his arrest to the linoleum cuttings
of the bloody shoeprints taken from the crime scene. The tread design appeared to be
similar, so she made a test impression. She found that three of the four partial
impressions from the crime scene were “consistent with the right boot . . . with size,
shape and tread design; and, therefore, that right boot or another right boot with those
same class characteristics could have made that impression.”
Alaina Kring testified that, in March 2011, she worked as a special agent with the
TBI in the Medicaid Fraud Control Unit. On March 4, she responded to the crime scene
with the lead investigator, Special Agent Nathan Bishop. She later assisted Agent Bishop
during his interview with the Defendant. The Defendant said that he had been drinking
beer and had taken Xanax earlier that day, but Agent Kring saw no signs that the
Defendant was intoxicated at that time. The Defendant indicated that he understood his
Miranda rights and was willing to answer questions. Agent Kring took four pages of
notes of the interview. She reviewed the notes with the Defendant, and he initialed each
page, and signed and dated the notes. She recalled that the Defendant was “very calm”
during the interview and that Agent Bishop only asked him a few questions. She stated
that the Defendant never indicated that anyone else was involved in the murders.
TBI Special Agent Cathy Ferguson testified that she also responded to the crime
scene to assist Agent Bishop and participated in the Defendant’s interview. The
Defendant told the agents that he “knew what happened out on Owl Hoot Road, but [the
agents] didn’t know if he was involved unless he told us.” The Defendant said that “he
thought it happened during a black-out, and then went on to say that maybe it was during
a dream.” The Defendant “gave specific details about the crime scene[.]” Agent
Ferguson stated that no one told the Defendant about the positioning of the victims’
bodies inside the residence, and no one told him that the victims had been killed with a
knife. However, the Defendant said that “it must have been a knife,” and he mentioned
that Mr. Shell was “lying in the living room or near the kitchen.” The Defendant
correctly described the linoleum kitchen floor, which he said “look[ed] like tile.” When
Agent Bishop specifically asked the Defendant if anyone else was involved, the
Defendant stated that “he was alone.” On cross-examination, Agent Ferguson stated that
Agent Bishop never specifically asked the Defendant if he had killed the victims.
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Special Agent Nathan Bishop of the TBI testified that, after learning of the tip that
the Defendant was attempting to sell weapons, he instructed officers to find the
Defendant and ask him about the information. Agent Bishop responded to the Chisholm
residence after the Defendant was located there. Agent Bishop informed the Defendant,
who was in the back of a patrol car, that he was being arrested on drug-related charges
and that deputies had found a knife while searching his vehicle. Agent Bishop asked the
Defendant if he would be willing to talk to him, and the Defendant agreed. The
Defendant did not appear to be intoxicated.
While at the sheriff’s office, the Defendant executed a written waiver of his
Miranda rights. At the beginning of the interview, the Defendant said to Agent Bishop,
“Look, I know you know what happened, but you don’t know I was involved unless I tell
you.” According to Agent Bishop, the Defendant then acknowledged involvement in the
murders. He did not seem to be afraid, and he never mentioned that other people were
involved in the murders.
A few days after the murders, Agent Bishop learned that the Defendant had rented
a cabin at Boyette’s and that “a Puerto Rican[] had been there with him.” Although he
considered that it was potentially a secondary crime scene, Agent Bishop stated that he
did not have the scene processed because it was “two or three days after the homicide[s],
and . . . it was already cleaned.” On cross-examination, Agent Bishop explained that no
one from the Response Team dusted for fingerprints at the victims’ residence. He stated
that the crime scene was “released” to the victims’ family at 8:45 p.m. on March 4. He
said that, in looking at the kitchen and living room of the victims’ residence, he did not
see any indication of a violent struggle between multiple people. He explained, “[T]he
furniture was not overturned or anything like that.” Agent Bishop opined that the crime
scene appeared to be a drug-related robbery and murder. He acknowledged, however,
that there was still a one hundred dollar bill in Mr. Shell’s wallet at the crime scene.
Defendant’s Proof
David Eddlemon testified that in the late afternoon of March 2 or March 3, 2011,
he was at a store near Boyette’s when he was approached by a Hispanic man, who asked
Mr. Eddlemon if he knew the Defendant, if he could “get in touch” with the Defendant,
and where the Defendant lived. Mr. Eddlemon stated that the Hispanic man got out of a
gold or tan Jeep Grand Cherokee, and there were two other people in the vehicle.
Judy Capps testified that she was the owner and operator of Boyette’s, located on
Reelfoot Lake. Ms. Capps recalled that on March 1, 2011, the Defendant came to the
resort to ask about the cost of renting a cabin for three nights. Ms. Capps provided the
Defendant a total, and the Defendant said, “[L]et me go talk to my buddy to see if that
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was okay with him.” The Defendant went outside, but Ms. Capps did not see the
individual mentioned by the Defendant. The Defendant came back in and rented Cabin 9
for three nights, paying in cash. Ms. Capps explained that Friday, March 4 would have
been the day that the Defendant was expected to check out of the cabin. She stated that
she did not see the Defendant the rest of the week, and she did not know who stayed in
Cabin 9 between March 1 and March 4. Ms. Capps stated that, when a cabin was
cleaned, housekeepers collected the trash, towels, and sheets from the cabins. The trash
was placed in a dumpster at the end of the row of cabins, and the dumpster would not
have been emptied until it was full. When housekeeping collected the towels and sheets,
the items would be “[a]ll lumped together” in a large bag and stored at a laundry shed
until the laundry service collected them every Thursday. She stated that there was not a
separate laundry bag for each cabin but that all of the resort’s sheets and towels went into
the same large bag. Ms. Capps explained that it was not unusual for housekeeping to
remove bloody towels from the cabins because guests would use the cabins to clean fish.
She recalled that, at the time the Defendant rented Cabin 9, a fishing tournament was
being held at Reelfoot Lake. Ms. Capps recalled that she spoke to Sheriff Avery several
days after she learned of the Defendant’s arrest. Ms. Capps stated that Cabin 9 was next
rented on Monday, March 7, 2011.
Dorothy Patterson testified that in March 2011, she and her daughter, Connie
Nugent, worked as housekeepers at Boyette’s. She recalled that from March 1 to March
4, Cabin 9 was rented. During that week, she knocked on the door to the cabin to ask if
the occupants needed any towels. A man opened the door just far enough that she could
see his face. Ms. Patterson described the man as “maybe Mexican or part Mexican” with
a “real full face and black hair.” She stated, however, that this man did not have “much
of an accent.” Ms. Patterson also recalled seeing a “tannish-gray” car parked between
Cabin 9 and Cabin 8, but Cabin 8 was not rented at the time. Ms. Patterson testified that
on Friday, March 4, two men exited Cabin 9 and got into the tannish-gray car. She only
saw the men from the back but described the driver as heavy-set man wearing tan pants
and a striped shirt and the passenger as a taller, white man, wearing a light blue shirt and
tan pants.
When Ms. Patterson and Ms. Nugent entered Cabin 9 to clean it later that day, it
appeared that two of the three beds had been used. They also found about “a cup-full” of
“marijuana seed” all over the floor of the cabin and three half-gallon containers of fruit
punch, one of which had not been opened. Inside the bathroom, Ms. Patterson saw a
towel laying in the floor that had “a little blood on it.” She rolled all the towels up and
put them into a large laundry bag along with the sheets. Ms. Patterson recalled that
Sheriff Avery came out to Boyette’s to interview her the day after she learned of the
Defendant’s arrest. She told Sheriff Avery that she had not seen the Defendant at Cabin
9 the whole week. On cross-examination, Ms. Patterson agreed that she had not been
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suspicious of anything she found while cleaning Cabin 9. She stated that finding a towel
with a small amount of blood on it was not unusual.
Connie Nugent testified that she worked as a housekeeper at Boyette’s. Ms.
Nugent recalled that Cabin 9 was rented for the week of March 1, 2011. She recalled
that, during that week, she knocked on the door to Cabin 9 to ask the occupants if they
needed any towels. A “black-Mexican” man with a “round face” answered the door and
said that they did not need anything. During the week, a “golden-champagne color” Ford
car with a Texas license plate was parked between Cabin 8 and Cabin 9. Ms. Nugent
testified that after the occupants checked out of Cabin 9 on Friday, March 4, she cleaned
the cabin. Inside the cabin, Ms. Nugent found marijuana seeds all over the floor, along
with two “big jugs” of fruit punch. On Saturday, Sheriff Avery came to Boyette’s and
asked Ms. Nugent if she had seen any blood in Cabin 9. Sheriff Avery then went into the
cabin and looked around.
Cousins, Brandon and Brian Jines, testified that in March 2011, they participated
in the Crappie Masters Tournament on Reelfoot Lake and stayed at Boyette’s during the
fishing tournament. On Saturday morning, March 5, they saw a Jeep Cherokee enter a
grassy area next to Brandon’s truck and boat with its headlights turned off at about 4:45
a.m. The jeep went through the grass and back onto the road and then moved behind a
boat shed. The jeep stayed behind the boat shed for five or ten minutes. It then pulled
out in reverse and with its headlights on and drove down the road, in reverse, at a high
rate of speed. Brandon saw two people in the jeep but could not tell what they looked
like. He thought that the driver was “shorter” and that passenger was “a little bit taller.”
He also noticed that the passenger wore a beanie or sock cap on his head. Brian testified
that he saw two occupants in the vehicle but that he could not identify them.
Callie Hinson testified that she was the Defendant’s friend and had known him for
fifteen years. She testified that she would occasionally go with the Defendant to Mr.
Hill’s residence to buy marijuana. Ms. Hinson stated that Mr. Hill had the reputation as a
drug dealer in the community. Ms. Hinson recalled that on March 3, 2011, the Defendant
picked her up in Tiptonville at Decker’s gas station around 6:00 p.m., and the Defendant
eventually picked up two other friends, Matt Corum and Chelsey Windsor. Ms. Hinson
explained that they rode around, smoking marijuana and drinking beer, for about four and
a half hours. She recalled that they went to the fire department so that the Defendant
could look at a four-wheeler. They then went to Ridgely to get gas for the Defendant’s
vehicle sometime before 9:00 p.m. and then went to Tobacco Dock, a tobacco store.
They also went to Denver Harris’ house to pick up a CD. They rode “out by the river, in
the country[.]” Ms. Hinson stated that the Defendant did not seem angry or disturbed
when he dropped her off at Decker’s gas station around 10:15 p.m. to 10:30 p.m. She
stated that she had never seen the Defendant become violent or lose his temper, even
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when he was drinking and using marijuana and Xanax. She recalled that the Defendant
was wearing a pair of camouflage bib overalls, blue jeans with torn ends that dragged on
the ground, a black shirt, a white hat, and boots.
On cross-examination, Ms. Hinson agreed that she had previously signed two
affidavits in which she stated that the Defendant dropped her off at Decker’s gas station
sometime between 9:00 p.m. and 10:00 p.m. She agreed that the Defendant was using his
phone while in his vehicle and recalled that he was “texting.” Ms. Hinson acknowledged
that they also went to Mr. Hill’s residence that night, where the Defendant purchased
marijuana.
Matthew Corum, the Defendant’s friend, testified that he had known the
Defendant his entire life and that he had never seen the Defendant lose his temper or act
in anger. On the evening of March 3, 2011, the Defendant picked up Mr. Corum at his
residence sometime between 6:00 p.m. and 7:30 p.m. Mr. Corum recalled that the
Defendant was wearing “[h]unting bibs,” which the Defendant wore often. After picking
up Ms. Windsor, they rode around smoking marijuana, drinking beer, and taking pills.
They went to the river, Pat’s service station, Tobacco Dock, to Andy Lee’s residence, to
Denver Harris’ house, and stopped by the fire station. Mr. Corum recalled that they also
stopped at a bank. Mr. Corum testified that the Defendant dropped him off at his
residence about 10:00 p.m. or 10:30 p.m. He stated that the Defendant did not act
unusual that night and did not appear angry about anything.
Joseph Jones and Sherry Price testified that they were working at the Tobacco
Dock on the night of March 3 when they received a phone call from the Defendant about
9:00 p.m. The Defendant said that he would be at the store in two minutes and asked that
Mr. Jones not close the store. When the Defendant arrived, Mr. Jones and Ms. Price
unlocked the front door and let him in. Mr. Jones noted that Mr. Corum, Ms. Hinson, and
Ms. Windsor were with the Defendant. The Defendant wore “some bibs and a long
sleeve dark shirt.” The following day, March 4, the Defendant came into the store
between 6:00 p.m. and 7:00 p.m. when Mr. Jones and Ms. Price were working. The store
was full of people, and Mr. Jones and Ms. Price were talking about the victims’ murders
at the time the Defendant entered the store. Mr. Jones said that “a lot of rumors [were]
going around” and that he had heard that the victims had been shot. Ms. Price said that
she had heard that the victims had been “murdered, and stabbed, and Mr. Shell was by
the recliner and Ms. Shell was in the kitchen . . . .” Mr. Jones testified that the Defendant
had on what appeared to be the same clothing from the previous night.
Denver Harris testified that he lived in Ridgely on Poplar Street with his parents.
On the evening of March 3, the Defendant’s brother, Caylan Bargery, was spending the
night with Mr. Harris when Caylan received a phone call from the Defendant. Caylan
- 15 -
then went outside and placed the keys to his truck in the mailbox between 9:30 p.m. and
10:00 p.m.
Michael Reynolds and Katherine Jones testified that on the evening of March 3,
2011, they saw the Defendant and his “gold-ish . . . tannish” colored Nissan Altima at the
Regions Bank ATM in Tiptonville at about 10:00 p.m. They recalled that the Defendant
obtained money from the ATM machine and then got back into his vehicle, which
contained two or three other people.
Caylan Bargery, the Defendant’s youngest brother, testified that on the morning of
March 3, 2011, the Defendant drove him to school. That morning, the Defendant was
wearing his bib overalls and boots. Caylan recalled that the Defendant owned only one
pair of bib overalls and one pair of boots. Later that night, the Defendant retrieved a CD
from Caylan’s truck after he called Caylan from Ms. Hinson’s cell phone around 9:30
p.m. or 10:00 p.m. The following morning, Caylan went into the Defendant’s bedroom
and asked for the keys to his truck back. The Defendant appeared to have been sleeping
but told Caylan that the keys were either in his bib overalls or pants. The Defendant did
not get up, and Caylan pulled the keys out of the pants. Caylan acknowledged that he
had previously smoked marijuana with the Defendant and that he had gone with the
Defendant to Mr. Hill’s residence to purchase marijuana. Caylan explained that Mr. Hill
was a known drug dealer in Lake County. He testified that he had never seen the
Defendant lose his temper or get angry at anyone and stated that the Defendant was
always “laid back.”
Rhonda Strube testified that she worked as an adjunct instructor at Dyersburg
State Community College and that the Defendant had been one of her students. She
recalled that, on the morning of March 4, the Defendant took a make-up test, which he
finished in about fifteen or twenty minutes. After taking the test, the Defendant asked to
leave class early.
Matthew Knox, the Defendant’s cousin, testified that he met the Defendant around
lunchtime on March 4 at the levee. Mr. Knox explained that he and the Defendant had
previously decided to take a boat ride on the river. He recalled that, when he pulled up at
the levee, the Defendant and his car were on top of the levee. There was a small fire that
looked like the Defendant may have been “burning some trash out of his car, like bottles
and paper, stuff like that.” Mr. Knox said that, while he put the boat into the water, the
Defendant met with someone at the bottom of the levee, but he did not see the individual.
Mr. Knox testified that he and the Defendant were in the boat on the river for about an
hour or hour and a half. While on the water, the Defendant drank beer and smoked
marijuana. Mr. Knox thought that the Defendant “seemed a little stressed about money”
because the Defendant “kept counting his money[.]” Mr. Knox stated that, later that day,
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the Defendant stopped by his home. Mr. Knox got into the Defendant’s vehicle, and they
went to a carwash in Tiptonville, where they met Tony Hayes, and the Defendant sold
Mr. Hayes a gun. After this meeting, the Defendant and Mr. Knox went to their
grandfather’s2 shop where the Defendant “put a couple of other guns out there in an old
trailer.” He recalled that he had previously seen the Defendant put a push mower and a
couple of chain saws in the trailer. He testified that he thought the Defendant had
obtained the items from “crack heads.” Mr. Knox said that, by this time, he had heard
about the murders but did not know that there were guns missing from the crime scene.
He stated that, when he went back out to the trailer three weeks later, the guns were gone.
Mr. Knox testified that he had never seen the Defendant angry or lose his temper.
Regina Bargery, the Defendant’s mother, testified that the Owl Hoot area where
the murders occurred was a “little community” close to the Dyer County line. She
explained that the Defendant’s great-grandmother, Mrs. Smith, lived in a house in the
Owl Hoot community until the “first part of 2010.” Mrs. Bargery explained that Mrs.
Smith’s home was located across a field from the victims’ residence. Mrs. Bargery
explained that the Defendant was twenty years old in March 2011. She described the
Defendant’s personality as “[f]un-loving, outgoing, laid back” and “[v]ery
compassionate.” The Defendant showed no tendency toward violence. She recalled that
the Defendant was living at home in March 2011. She saw the Defendant on the
mornings of March 3 and 4, and on both mornings, the Defendant was wearing a pair of
camouflage bib overalls, jeans, a pair of boots, and a black long-sleeve, insulated shirt.
On the morning of March 4, the Defendant spoke to Mrs. Bargery in her hair salon,
located at the back of their residence before he went to school at Dyersburg State
Community College.
Around 11:00 a.m. on March 4, Mrs. Bargery called the Defendant and told him
that she had heard that the victims had been shot and killed. Sometime before midnight
on March 4, she received a phone call from someone saying that the Defendant had been
arrested. When she arrived at the jail, she learned that the Defendant had been arrested
for marijuana possession. She went back home without seeing the Defendant. Minutes
later, several deputies arrived at her home. Deputy Allison told her that the Defendant
had been arrested for the victims’ murders. She gave them permission to search the
home, and deputies seized various items belonging to the Defendant. Mrs. Bargery
testified that the Defendant did not need money. He worked and had access to additional
money from his grandparents if he needed it. Mrs. Bargery recalled that the Defendant
called her from jail the day after his arrest and told her that he was sorry. The Defendant
was crying and upset. During the call, the Defendant spoke to his brother and said,
“Caylan, I’m sorry, I F’d up[.]”
2
Mr. Knox testified that he and the Defendant had the same grandfather.
- 17 -
Rachelle Chisholm testified that she lived on Headden Drive in Tiptonville in
2011 with her husband and son, Curt. Mrs. Chisholm explained that Curt and the
Defendant were best friends and that the Defendant spent time at their residence most
days. Mrs. Chisholm described the Defendant as a “tender-hearted, kind, [and]
considerate[.]” She recalled that she saw the Defendant twice on March 3, 2011, and that
the Defendant was wearing bib overalls, a long sleeved black shirt, blue jeans, and boots.
The Defendant was also at her residence on March 4, the evening of his arrest. She
testified that the Defendant “didn’t seem himself” that evening. She stated, “I didn’t
smell any alcohol on him, but he seemed like he had taken something.” Mrs. Chisholm
recalled that the Defendant bumped into a cart in their kitchen twice, knocking items to
the floor. She further recalled that the Defendant was wearing the same clothing as the
previous day.
Ryan Bargery, the Defendant’s younger brother, testified that in March 2011, the
Defendant owned one pair of camouflage bib overalls and one pair of boots. Ryan
admitted that he used to smoke marijuana with the Defendant. He further stated that he
knew Mr. Hill and that Mr. Hill was a drug dealer in the community. Ryan explained that
he had never seen the Defendant in a fight, get angry, or lose his temper.
The Defendant testified that he graduated from high school in 2008. He explained
that he began using marijuana and “experimenting with pills” while in high school. After
graduation, the Defendant worked at a boat dock, Cypress Point Resort, until the time of
his arrest in March 2011 when he was twenty years old. The Defendant testified that, at
that time, he was enrolled in Dyersburg State Community College and needed two
additional classes for his degree. The Defendant testified that by the time of his arrest he
was using marijuana “several times a day, every day[,]” and he took Xanax. He
explained that the marijuana and Xanax made him “real mellow” and calm. The
Defendant said that he smoked marijuana with several friends, including Andy Lee. He
stated that he met Shondell Hill, “[t]he drug dealer there in Ridgely,” through Mr. Lee in
2007 or 2008 when the Defendant was seventeen or eighteen years old. The Defendant
recalled that he would buy marijuana from Mr. Hill “almost every day.” The Defendant
often went to Mr. Hill’s residence in Ridgely, where he would “hang out” and play video
games with Mr. Hill. The Defendant stated that he believed that he and Mr. Hill were
“good friends.” They would “ride around and smoke” in the Defendant’s vehicle because
Mr. Hill did not have a driver’s license and did not want to drive. The Defendant
explained that he eventually began taking Mr. Hill to various locations in Lake County
for Mr. Hill to sell drugs and deliver marijuana. The Defendant stated that he knew that
Mr. Hill was affiliated with a gang, but he never asked Mr. Hill which gang. He stated
that he benefitted from driving Mr. Hill around to sell marijuana because the Defendant
“was basically getting free marijuana from [Mr. Hill]” for driving. Regarding Mr. Hill’s
- 18 -
client base, the Defendant stated that it was “[a]nywhere from Dyersburg to Union City
and Lake County.”
The Defendant recalled that, by 2010, he was at Mr. Hill’s residence playing video
games and using marijuana “close to every other day[.]” The Defendant recalled a time
in 2010 when he and Mr. Hill were out riding on Owl Hoot Road when he pointed out his
great-grandmother’s house. The Defendant stated, “When we passed by my great-
granny’s house I just off-hand said that’s where my great-grandmother lived. That’s
where she lives, just pointing it out.” The Defendant explained that the Owl Hoot
community consisted of five or six houses and that only two houses were close to one
another—the victims’ residence and the house where his great-grandmother had lived
before she moved closer to town. However, the Defendant testified that he had not
known the victims and had been unaware that they lived in the residence. He believed
that Doris Spence, his great-grandmother’s sister-in-law, lived in the home.
The Defendant explained that he occasionally sold items for Mr. Hill, such as
electronics, phones, and guns, and that Mr. Hill would split the proceeds from such sales
with him or pay him in marijuana. The Defendant explained that he would smoke some
of the marijuana and also bag some of it to sell to friends. The Defendant stated that Mr.
Hill would sometimes place items in his vehicle for the Defendant to sell.
The Defendant testified that the first time he saw Joel Hernandez was at the
Greyhound bus station in Memphis in 2010. He explained that Mr. Hill had asked him to
drive to Memphis and pick up Mr. Hernandez and Mr. Hernandez’s girlfriend and bring
them to Lake County. When he and Mr. Hill picked up Mr. Hernandez, Mr. Hernandez
had two suitcases with him. Mr. Hill did not introduce the Defendant to Mr. Hernandez
at that time.
The Defendant recalled that he picked up Mr. Hernandez from the Greyhound bus
station in Memphis a second time on March 1, 2011. He explained that he had rented
Cabin 9 at Boyette’s the day before. He explained that he rented the cabin in his name
because Mr. Hill “didn’t want the cabin to be in his name.” Mr. Hill told the Defendant
that he would give the Defendant marijuana and cash for picking up Mr. Hernandez and
renting the cabin. According to the Defendant, Mr. Hernandez was supposed to be at
Cabin 9 from Tuesday, March 1 through Friday, March 4. Mr. Hill rode to Memphis
with the Defendant to pick up Mr. Hernandez. When they arrived, the Defendant went
into the bus station to get Mr. Hernandez. Mr. Hernandez had two suitcases and a duffle
bag. He helped Mr. Hernandez with the luggage and stated that they each weighed about
forty to fifty pounds. The Defendant drove to Cabin 9 to drop off Mr. Hernandez, but he
did not go inside with Mr. Hernandez and Mr. Hill. The Defendant recalled that, when
Mr. Hill exited the cabin, he had a tote bag full of marijuana.
- 19 -
The Defendant and Mr. Hill then drove to the Kentucky state line where Mr. Hill
met with some men in a car around midnight to sell marijuana. The Defendant recalled
that Mr. Hill initially approached the other car and spoke to the occupants. He then took
out one of the bricks of marijuana from the tote bag and showed it to the occupants. A
few minutes later, Mr. Hill called Mr. Hernandez. During the call, Mr. Hill was
“vehemently explaining to [Mr. Hernandez] what he was trying to tell him in the phone
call.” After speaking to Mr. Hernandez, Mr. Hill grabbed the tote bag and handed it to
the people from Kentucky. When Mr. Hill returned to the Defendant’s vehicle with the
tote bag, the bag was empty. The Defendant then drove Mr. Hill to Cabin 9.
The Defendant testified that on the morning of March 2, he put on a black shirt,
camouflage bib overalls, a pair of blue jeans, white hat, and boots before going to school.
He stated that he owned only one pair of bib overalls and that the cuffs of his blue jeans
dragged the ground when he walked. He testified that he wore the same clothing the rest
of the week. After class, the Defendant picked up Mr. Hill, and they drove back to Cabin
9. Mr. Hill went inside the cabin and came out with Mr. Hernandez’s duffle bag, which
was full of marijuana. The Defendant then drove Mr. Hill to several locations where Mr.
Hill sold the marijuana to various individuals. At one location, Mr. Hill delivered
anywhere from five to nine bricks of marijuana. When Mr. Hill returned to the car, he
pulled out “an amount of money folded over.” The Defendant stated that it was “a lot of .
. . bills.” He then drove Mr. Hill to Peach Tree Apartments where Mr. Hill again
delivered a quantity of marijuana in exchange for cash. They drove from Dyersburg to
Union City, and Mr. Hill delivered more marijuana. After leaving Union City, the
Defendant heard a phone call between Mr. Hill and Mr. Hernandez. He then drove Mr.
Hill back to Cabin 9, and they both went inside. The Defendant testified that there was
“an intense discussion” between Mr. Hill and Mr. Hernandez at that time and that it
looked like the men were going to fight. Mr. Hernandez was angry and scared and
“wasn’t happy with the way things were going.” The Defendant explained that, although
the agreed-upon sale price for the marijuana had been between $1100 and $1300 per
pound, Mr. Hernandez was “getting considerably less” from Mr. Hill—around $700 to
$800 per pound. The Defendant testified that Mr. Hernandez got his marijuana from
Texas “[f]rom the people that sent him down.” The Defendant stated that he was only in
Cabin 9 on March 2.
The Defendant recalled that he went to school early the next day to take an exam.
About thirty minutes before the exam, Mr. Hill called the Defendant and told him that
Mr. Hernandez was going to be leaving that day. Mr. Hill wanted the Defendant to drive
Mr. Hernandez to a different Greyhound bus station in Jackson. Mr. Hernandez left his
duffle bag with Mr. Hill for Mr. Hill to finish selling the marijuana. Mr. Hill was
- 20 -
“supposed to get the money and send it on to [Mr. Hernandez] after he got through
selling it.”
The Defendant drove Mr. Hernandez alone to Jackson, and they smoked marijuana
on the way there. The Defendant recalled that, during the drive, Mr. Hernandez began
shaking, rubbing his face, and mumbling to himself. Mr. Hernandez seemed “real
stressed out.” Mr. Hernandez told the Defendant that, “from now on,” the Defendant
would be picking up him and the marijuana in Texas instead of Mr. Hernandez’s taking a
bus. Mr. Hernandez also stated that the Defendant was “gonna be selling more
marijuana, a lot of . . . large amounts of marijuana.” The Defendant testified that this was
when he “realized [he] was in way over [his] head,” and he explained to Mr. Hernandez
that he could not do that. However, Mr. Hernandez did not accept the Defendant’s
refusal. Mr. Hernandez asked the Defendant for his phone number because he wanted to
be able to contact the Defendant. Mr. Hernandez then stored his phone number in the
Defendant’s cell phone under the name “Lobo.” The Defendant stated that, rather than
arguing with Mr. Hernandez, he decided to talk to Mr. Hill about the plan. He believed
that Mr. Hill would “be reasonable” about the situation because Mr. Hill knew that the
Defendant lived at home with his mother. The Defendant recalled that Mr. Hernandez
made several phone calls during the drive and that he spoke in Spanish during the calls.
At one point, he heard Mr. Hernandez say, “Mi cholos,” but he did not know what that
meant.
The Defendant stated that he called Mr. Hill as soon as he dropped off Mr.
Hernandez in Jackson. The Defendant explained that, when he called Mr. Hill about his
conversation with Mr. Hernandez, Mr. Hill initially told him to “calm down” and that
“[i]t’s not gonna be that often[.]” During a second phone call with Mr. Hill, Mr. Hill was
angry and would not listen to the Defendant. Mr. Hill was mad at Mr. Hernandez “for
approaching [the Defendant] to sell marijuana.” The Defendant drove to Mr. Hill’s
residence to further discuss the situation. When he arrived, Mr. Hill was “very mad” at
the Defendant and began “grilling” him about what the Defendant had said to Mr.
Hernandez. The Defendant assured Mr. Hill that he had “take[n] up” for Mr. Hill and
told Mr. Hernandez that he could not sell marijuana or drive for Mr. Hernandez.
However, Mr. Hill did not believe the Defendant. The Defendant stated, “I thought at
any moment [Mr. Hill] was just gonna rear back and . . . smack me.” He said that he was
scared of what Mr. Hill was accusing him of and felt threatened by Mr. Hill. The
Defendant testified:
Because what we were talking involved way, way, way more than what I
was prepared to do and it was on so many levels on top of what I was, what
I could ever be. And I knew that there was [sic] some serious people
involved and I couldn’t -- I didn’t want to be involved in this. And they
- 21 -
were -- they were telling me that I was involved, that I was gonna be
involved, that I didn’t have any choice about it.
The Defendant attempted to talk to Mr. Hill about driving back and forth to Texas. He
explained why he could not do it, but Mr. Hill did not accept his explanation. Mr. Hill
said that the Defendant did not have any choice about whether to drive Mr. Hernandez.
The Defendant testified that, when he left Mr. Hill’s residence around 5:30 p.m., he
intended to “cut[] ties as best as [he] could[.]”
The Defendant recalled that he picked up Ms. Hinson at Decker’s gas station
around 6:00 p.m. and then picked up Ms. Windsor. They “rode around for a little while”
until Mr. Coram got off work, and then the Defendant picked up Mr. Coram. The
Defendant recalled that he drove to the fire station and several other places, like the
Tobacco Dock and the bank. The Defendant testified that he was smoking marijuana,
taking Xanax, and drinking beer that night. He dropped Ms. Hinson off around 10:30
p.m. and then took Ms. Windsor and Mr. Coram to Mr. Coram’s house. The Defendant
then went home and got in bed. He was watching television and was about to go to sleep
when Mr. Hill called him at 11:42 p.m. After the call, the Defendant put the same clothes
back on and went to Mr. Hill’s residence because he did not want Mr. Hill to continue to
be angry with him.
When he arrived at Mr. Hill’s residence, there was a gold-colored car already
parked in the driveway. Mr. Hill was standing by the vehicle talking to two other people
and one man was sitting in the driver’s seat of the car. Mr. Hill walked over to the
Defendant’s vehicle and got in the passenger seat. As a result of what Mr. Hill told him,
the Defendant drove up to Highway 78 headed towards Dyersburg and turned onto
Highway 79. When the Defendant asked Mr. Hill “why [they] were going up there,” Mr.
Hill did not have a friendly response. When he got to Owl Hoot Road, the Defendant
drove towards his great-grandmother’s old house. When he pulled into the driveway, no
one was there. The Defendant told Mr. Hill that his great-grandmother no longer lived at
the residence and “had been gone for a[]while.” However, Mr. Hill did not believe the
Defendant. Mr. Hill cursed at the Defendant and was angry.3 The Defendant testified
that he was scared and that he did not know what Mr. Hill intended to do. Mr. Hill then
told the Defendant to do something else, and as a result, the Defendant pulled back out
onto the road and stopped in front of the driveway to the victims’ residence. The gold-
3
During a defense proffer, the Defendant testified that when he questioned Mr. Hill about where
they were going, Mr. Hill responded, “Just drive man! Just go!” The Defendant said that Mr. Hill was
not “talking in a normal voice.” The Defendant further testified that Mr. Hill instructed him to pull into
the victims’ driveway, saying, “Just pull in the f***ing driveway. Just get in the driveway.” When Mr.
Hill told the Defendant to turn off his headlights, Mr. Hill said, “You dumb a**, turn the g** d**n lights
off.”
- 22 -
colored car pulled into the driveway, and the Defendant followed the vehicle. The
Defendant recalled that, as he was pulling in behind the gold-colored car, he saw that the
car was a Ford with Texas plates. Three “Mexican men” stepped out of the car wearing
gloves on their hands. The “short one” that had been sitting in the back of the gold-
colored car signaled for the Defendant to turn off his headlights, and Mr. Hill cussed at
the Defendant for pulling into the driveway with the headlights on. Mr. Hill then said
something to the Defendant, and as a result, the Defendant got out of the car. The
Defendant testified that, based on Mr. Hill’s tone of voice, he did not believe that he had
a choice but to get out of the vehicle. He stated that he was afraid of Mr. Hill. When Mr.
Hill exited his vehicle, Mr. Hill pulled a pair of gloves out of the pocket of his hoodie.
The Defendant continued to ask Mr. Hill why they were there, but Mr. Hill did not
respond.
The Defendant recalled that the front porchlight of the victims’ residence was on.
He noticed that, when “the three Mexicans” stepped onto the porch, they “all three had
knives in their hands.” The “tall Mexican” then opened the front door and walked inside
the residence. The Defendant explained that he was “rooted to the spot” as soon as he
saw the knives, and he started crying. Mr. Hill walked up onto the porch and opened the
storm door. He motioned for the Defendant to follow, but the Defendant shook his head
at him. The Defendant stated that, as Mr. Hill was motioning for him, he heard “a really
loud sound” coming from inside and then the sound of “gurgling.” When Mr. Hill
entered the residence, the Defendant heard a woman screaming. The Defendant testified
that he “couldn’t move.” He recalled that the “tall Mexican” came back outside and said,
“Come on, white boy.” However, he turned away from the “tall Mexican” and continued
to stand in the driveway. The “tall Mexican” then walked over to the Defendant, grabbed
his shoulder, turned him around, and slapped the Defendant on the side of the head. The
“tall Mexican” told him, “Quit crying like a little bitch.” He told the Defendant they
were “going into the house,” and he grabbed the back of the Defendant’s neck and right
arm and directed him into the residence. When he entered the residence, the Defendant
saw a body lying across the room, and he turned and ran back out the front door and into
the yard. The “tall Mexican” and Mr. Hill followed the Defendant out of the house. The
“tall Mexican” asked him, “What’s wrong, white boy, you can’t handle a little blood?”
The “tall Mexican” then said, “This is what happens to people who think that they can
f*** with us.” He told the Defendant, “You are going to do every[thing] and anything
that you’re told to do or this s*** [will] happen again.” The “tall Mexican” told the
Defendant to come inside the house.
When he entered the residence, the Defendant went into the master bedroom
where Mr. Hill was going through a drawer. The “fat Mexican” had two guns in his
hands, and he pointed a gun at the Defendant and said, “Bang, bang.” The “short
Mexican” then walked out of the bathroom, wiping his hands off on a towel. The
- 23 -
Defendant testified that they were no longer wearing gloves. Mr. Hill grabbed a laptop
off the floor and handed it to the Defendant and told him to take it to his car and then
come back in and “grab some more stuff.” When the Defendant returned, the “tall
Mexican” was coming out of the kitchen. He had blood on his shirt, on both of his hands,
and on a knife that he held in his hand. The “tall Mexican” approached the Defendant,
pointed the knife at his chest, and said, “Take it. Take it. Take it. Take it.” The
Defendant took the knife, and the “tall Mexican” wiped both of his hands on the
Defendant’s. The “tall Mexican” said, “Now their blood is really on your hands.” The
“tall Mexican” then took the knife back from the Defendant, and the Defendant “broke
down” again.
Mr. Hill told the Defendant to wash his hands in the bathroom. He then instructed
the Defendant to grab the guns and put them in his car. Once outside, the “tall Mexican”
put the gloves inside a McDonald’s bag and tossed the bag to Mr. Hill. Mr. Hill then got
into the passenger seat of the Defendant’s car with a knife in his hand. Mr. Hill took a
camera and pistol out of his pocket and put them in the glove box. The Defendant
testified that he never saw the knife that Mr. Hill had again. The Defendant stated that he
did not know if he ever handled the knife found in his car and that he did not know if it
was the same knife the “tall Mexican” handed him. The “tall Mexican” approached the
Defendant, put his hands on the Defendant’s shoulders, and said, “You gonna be okay,
white boy? This is good fun, huh? Just remember, you do everything you’re . . . told or
this - this will happen again.” The Defendant testified, “They thought that they had just
killed my great-granny and [Mr. Hill] knew where my mama lived, where my brothers
lived.” He stated that he “wasn’t gonna let that happen to [his] family.”
After leaving the crime scene, Mr. Hill turned on the victims’ laptop but could not
get into it. As they pulled into the driveway of Mr. Hill’s home, the Defendant asked
what to do with the victims’ property. Mr. Hill stated that the victims’ property was to be
left in the Defendant’s car for the night. Mr. Hill told the Defendant that he needed to
return the following morning and that he needed to “find a way to get into the laptop.”
The Defendant returned home and went to bed, but he did not sleep. He stated that he felt
that he “couldn’t tell what happened because [he] didn’t want what happened to the
[victims] to happen to [his] family.” The Defendant explained that he did not call the
police because he “wasn’t gonna do anything to get [his] family killed.” He stated that he
first told his attorneys what happened the night the victims were murdered about a month
and a half before trial.
The Defendant stated that he went to school to take a make-up mid-term exam at
10:00 a.m. and that he was dressed in the same clothing that he had worn the previous
night. After class, the Defendant called several people about accessing the laptop and
then drove to Mr. Hill’s residence where Mr. Hill gave the Defendant “the rest of the
- 24 -
marijuana that he [] owed [the Defendant] from the week and some cash[.]” The
Defendant asked Mr. Hill about the previous night, but Mr. Hill did not answer his
questions. The Defendant asked Mr. Hill what he wanted to do with the victims’
property, which was still in the Defendant’s car. Mr. Hill gave the Defendant directions
in a “forceful” demeanor. The Defendant explained that, as a result of Mr. Hill’s
response, he understood that he had to “sell all the stuff off quick[.]”4
The Defendant recalled that he went on a boat ride with his cousin, Mr. Knox,
later that day. When he got to the boat dock, the Defendant took the McDonalds bag
containing the gloves out of his car. He stated that he burned the bag and its contents
because of his conversation with Mr. Hill. While on the boat with Mr. Knox, the
Defendant smoked marijuana, took Xanax, and drank beer. The Defendant testified that
he pulled out his money and “started trying to calculate for the [victims’] guns and the
cameras and stuff how much [he] could just give to [Mr. Hill] and just tell [Mr. Hill] that
he sold all the stuff and not sell it.” While on the boat, the Defendant received several
text messages from Mr. Hill about the Defendant “selling the stuff.” The Defendant
denied that he deleted any text messages from his phone that day. The Defendant
testified that he later sold the victims’ camera, and then he called Mr. Lee. He asked Mr.
Lee what he had heard about the murders and told Mr. Lee that he had “come across
some guns” and wanted to sell them. According to the Defendant, Mr. Lee told him that
Mr. Shell had been found in the living room but that Mrs. Shell was in the kitchen. Mr.
Lee said that “they were both cut real bad” and that “[t]heir throats had been cut.” Mr.
Lee told the Defendant that there was “blood everywhere” and that it “looked like a lot of
people had [gone] in and just ransacked the place.” The Defendant went to Mr. Lee’s
residence around 3:00 p.m. and showed Mr. Lee the guns; however, Mr. Lee “didn’t want
any.” The Defendant stated that, after leaving Mr. Lee’s residence, he and Mr. Knox
drove out to a trailer on the Defendant’s grandfather’s property where the Defendant
stored the victims’ stolen guns. Later, the Defendant and Mr. Knox met a man at a car
wash in Tiptonville, and the man bought one of the victims’ guns. The Defendant
testified that he had been unaware of the jewelry in his trunk.
The Defendant explained that, later that night, he went to the Tobacco Dock.
When he approached the counter, there were customers and employees talking about the
murders. The Defendant stated that one man was “talking about all the details” of the
murders. The man said that Mrs. Shell “had the phone in her hand and she’d been trying
to run out the back door and that she was on her back.” He also stated that the victims’
throats had been cut and that there was “[a] lot of blood.” The Defendant testified that he
4
During another defense proffer, the Defendant testified that Mr. Hill threatened him by saying,
“Because we know where your family’s at. We know where you’re all at out on the highway. We know
where your granddaddy lives over in the Ville. We know where your grandparents live. You know
what’ll happen.”
- 25 -
left the Tobacco Dock and went to the Chisholm residence. He stated that he took the
laptop and a pistol belonging to the victims into the home because he wanted everything
out of his car. While in Curt’s bedroom, the Defendant began “bag[ging] some more
marijuana up.” The Defendant explained that he made plans with a friend, Amber, to
meet her in Dyersburg and sell her the laptop. Regarding his interaction with police
while at the Chisholm residence, the Defendant explained that after he got off the phone
with Amber, Curt ran into the bedroom and said, “[T]he cops are here.” The Defendant
had a “big stack of marijuana in [his] lap and then a bigger stack sitting [] on the bed with
scales and everything.” The Defendant gathered up the marijuana and went out the back
door of the house. He put the bigger bag of marijuana into a cooler and then “bent down
like [he] was petting the puppies” in the backyard. At that time, Deputy Leake came to
the back door and yelled at the Defendant, saying he wanted to talk to the Defendant.
The Defendant asked, “What’s this about, Owl Hoot?” The Defendant stated that he
asked the question because everyone in the community was talking about the murders,
and the Defendant wanted to see what the police would say about the crime. The
Defendant testified that he did not delete text messages from his cell phone before
Deputy Leake removed the phone from his pocket.
The Defendant stated that, between noon and the time of his arrest that night, he
smoked ten blunts of marijuana, took fifteen Xanax pills, and drank beer. Regarding his
interview with Agent Bishop, the Defendant stated that Agent Bishop “wanted to know
what [he’d] heard” about the murders. The Defendant told Agent Bishop what
“everybody in town had been talking about[.]” They then discussed the Defendant’s drug
use, and the Defendant agreed with Agent Bishop that someone in a “constant state of
inebriation” was “not really in reality” and everything has a “dreamlike quality.” The
Defendant admitted that he lied to Agent Bishop when he said he did not go to the
victims’ residence. He stated that he could not tell Agent Bishop the truth, explaining:
If I told somebody [-] I wasn’t gonna let that happen to my - I was keeping
my family out of it. I - I was ready to go to jail. I was ready to die to keep
my family out of this. I didn’t want anything to happen to my mama like
what happened . . . [t]o the [victims].
The Defendant testified that he was not at the victims’ residence that night of his
own free will and that he did not want to enter the house. He went in because the “tall
Mexican” made him. The Defendant denied that he killed the victims and denied telling
Agent Bishop that he had done so. The Defendant also testified that he was not acting of
his own free will when he sold the items taken from the victims’ residence and stated that
he had not wanted to sell the items. He testified that he did not tell Agent Bishop the
truth because he did not want anything to happen to his family.
- 26 -
On cross-examination, the Defendant stated that he had “plenty of marijuana” and
Xanax on March 4, 2011, explaining that Mr. Hill had given him $500 and a quarter of a
pound of marijuana. The Defendant admitted that he received $35 for the victims’
camera, and he sold the victims’ guns for a total of about $100.
Shondell Hill testified that he graduated from high school in 1998, and from that
time until June 2011, he made money by selling marijuana and crack cocaine. He
explained that he joined the Black Gangster Disciples when he was fourteen or fifteen
years old and that he had two previous felony convictions for selling crack cocaine. He
agreed that he beat up a man that had testified before a grand jury regarding one of the
crack cocaine charges. Mr. Hill stated that, before March 2011, he had known the
Defendant for about five or six months and that he met the Defendant through a mutual
friend. He stated that the Defendant would call him almost every morning on the way to
school, wanting to purchase “either a blunt or a dime sack.” He recalled that the
Defendant also sometimes called in the afternoons and sent him text messages about
coming to purchase marijuana. Mr. Hill recalled that the Defendant would occasionally
come over to his house where they would play video games.
Mr. Hill testified that he knew Joel Hernandez, whose nickname was “Lobo.” He
explained that Mr. Hernandez would bring him marijuana from Texas on a Greyhound
bus. Mr. Hill stated that, in February 2011, he asked the Defendant to drive him to
Memphis to the Greyhound bus station to pick up Mr. Hernandez. He stated that this was
the only time that the Defendant drove for him. Once at the bus station, Mr. Hill sent the
Defendant inside to find Mr. Hernandez. Mr. Hill explained that they were in the
Defendant’s car and that he remained in the car while the Defendant went inside the bus
station. The Defendant then drove the men back to Lake County. Mr. Hill stated that
Mr. Hernandez brought about ten pounds of marijuana with him from Texas and
explained that a pound of marijuana could sell for $800 to $1,000 or more, depending on
the quality. Mr. Hill recalled that, when Mr. Hernandez’s business was completed in
Lake County, the Defendant drove Mr. Hernandez back to the bus station, but Mr. Hill
did not go with them. Mr. Hill explained that he paid the Defendant in marijuana; he
gave the Defendant four ounces to pick up Mr. Hernandez and another four ounces to
take Mr. Hernandez back to the bus station. Mr. Hill explained that, during this time, he
did not have a driver’s license. He stated that this was the only occasion in which the
Defendant was around Mr. Hernandez.
Mr. Hill recalled that, before Mr. Hernandez’s arrival, he asked the Defendant to
rent a room for Mr. Hernandez at Boyette’s. He explained that he paid for the cabin but
that it was rented in the Defendant’s name. He stated that he did not know anything
about a pot farm in Obion County. Mr. Hill testified that Mr. Hernandez stayed alone at
Cabin 9 during the week of March 1. Mr. Hill never saw a gold-colored car or anyone
- 27 -
else with Mr. Hernandez at the cabin. Mr. Hill recalled that Mr. Hernandez came to
Memphis about every three weeks and that, between trips, he communicated with Mr.
Hernandez “[p]robably once a week.” He stated that he did not know whether Mr.
Hernandez belonged to a prison gang. Mr. Hill recalled that, on the morning of March 2,
the Defendant drove him to Cabin 9 to pick up the marijuana. The Defendant drove Mr.
Hill around Tiptonville while he tried to sell the marijuana. Mr. Hill noticed that the
marijuana was “real seedy and sticky” and smelled like dryer sheets. Around 9:00 or
10:00 a.m., Mr. Hill attempted to sell the marijuana to two African-American men at the
Kentucky state line, but the men did not want the marijuana. Mr. Hill recalled that Mr.
Hernandez left Cabin 9 on March 3, 2011, rather than stay until March 4 because “the
weed he brought was garbage and it wasn’t selling[.]” Mr. Hill told Mr. Hernandez that
the marijuana was “terrible,” but Mr. Hernandez responded, “Come on . . . you’ve got to
be able to do something for me. I know you can make it happen.” Mr. Hill told Mr.
Hernandez that people would pay for the marijuana but not at the price Mr. Hernandez
wanted. He told Mr. Hernandez to take the marijuana back to Texas with him, but Mr.
Hernandez did not want to risk it so the marijuana remained with Mr. Hill. Mr. Hill
admitted that he eventually sold the marijuana. He stated that he paid Mr. Hernandez
$1,500 for about two pounds’ worth of marijuana. He stated that, had he paid Mr.
Hernandez what he was asking for it, he would have paid between $4,000 and $5,000.
Mr. Hill was unaware of the Defendant’s discussions with Mr. Hernandez on the
way back to Jackson. The Defendant never told Mr. Hill that Mr. Hernandez had offered
him the opportunity to deal directly with him. Mr. Hill stated that he had no reason to
call the Defendant at 11:42 p.m. on March 3, 2011. He stated that he was at home on the
night of March 3 and the early morning hours of March 4 and that he never left his
residence. He further stated that no one visited his house during that time. Mr. Hill
testified that it was only after the victims were murdered that he learned that the
Defendant’s grandmother had lived on Owl Hoot Road. He said that it was his
understanding that the victims were the Defendant’s grandparents.
Mr. Hill said that, after the Defendant dropped off Mr. Hernandez at the bus
station in Jackson, the Defendant called him to let him know that Mr. Hernandez made it
to the bus station. Mr. Hill denied that the Defendant came by his residence that night.
Mr. Hill testified that the following morning, March 4, he woke up to find that the
Defendant had called him five or six times around 4:00 a.m. and sent a text message at
6:30 a.m., asking him to call the Defendant. The Defendant then came over to his
residence. Mr. Hill explained:
I opened up my back door, [the Defendant] walked in, he said,
“What’s up, my guy?” That’s how he talked to me -- every time he
enter[ed] my house and we talk[ed] on the phone, he’d say, “My guy.” He
- 28 -
came on in. He had a laptop and he had like a jewelry bag or some type of
Crown Royal bag or something. He began to pour the jewelry out in his
hand. And I told him he could -- he was wasting his time with that. I told
him it looked oldish. I said it looked old-timey, my exact words to him.
He put that up. I told him I was interested in the laptop. He opened -- he
flipped the laptop open, he proceeded to try to power it on. He powered it
on, it had a lock code in it. Then, after he couldn’t get through the code he
made a phone call to somebody. And I don’t know they [sic] name. He
asked them, he said, “I got a laptop.” He said, “You think you can get it
open for me?” I don’t know what the reply was over the phone. But he got
off the phone, he said, “Hey, I think I know somebody that can open it.”
He put that -- he put it up. And he let -- When he first came in he also said
he had a -- he said he had a trunk full. I asked him where he got that from.
He said, “We hit a lick last night.” He never said who we were or none of
that. I didn’t ever ask who “we” were. But he said, “We hit a lick last
night.”
Later that afternoon, when he learned about the victims’ murders, he called the
Defendant. Mr. Hill explained:
Because he had just left my house with a computer and some
jewelry, and I -- because when he said, “We hit a lick,” like I said, when
my friend came over and was telling me about, “Did you hear about the
double murder,” it instantly made me call [the Defendant]. I said, “That
stuff you got, did that belong to them people that got killed?” His exact
words, he said, “No. Them [sic] was my kin people.” And I said, “Why
you didn’t tell me this while you was here?” He didn’t reply or nothing . . .
I told him, I said, “Make sure you get my fingerprints off that laptop,”
because I had just been looking at it.
Mr. Hill could not explain why his phone records did not show that the Defendant called
him five or six times on the morning of March 4.
Mr. Hill recalled meeting a man named Luis Mendez while incarcerated at the
Lake County Jail. Mr. Mendez was in jail for trafficking marijuana. About six or seven
months after Mr. Hill got out of jail, Mr. Mendez called him. Mr. Mendez stayed at Mr.
Hill’s residence, and Mr. Hill provided him with money to return home to Texas. When
Mr. Mendez later returned to Lake County on a Greyhound bus, he brought Mr.
Hernandez with him.
- 29 -
Joel Hernandez, Jr., testified that he was born in Laredo, Texas, that he was thirty-
three years old, and that he was serving a sentence in the United States Penitentiary in
Allenwood, Pennsylvania for “smuggling illegal aliens.” Mr. Hernandez stated that Mr.
Mendez was a friend from high school in Texas. He stated that he had “no idea” if Mr.
Mendez was a gang member. Mr. Hernandez denied that he was a member of the Texas
Mexican Mafia or “Mexikanemi”; rather, he stated that he was a gang “associate” while
in prison, which meant that he was under the gang’s protection and “[j]ust hangs around”
gang members. Mr. Hernandez denied that he ever worked for the Mexikanemi. He
acknowledged, however, that he signed a document from the Allenwood, Pennsylvania
prison, which stated that he had been a member of the gang since 2009. Mr. Hernandez
identified several photographs of his tattoos but denied that the tattoos were gang
insignia. He stated that they had “nothing to do with . . . the Mexican Mafia” but that
they were simply art denoting “Aztec culture.” Mr. Hernandez testified that the
Mexikanemi was a criminal gang consisting of “[b]ig bad boys from prison.” He stated
that to become a member of the Mexikanemi an individual must “kill somebody.” He
said that he had never been asked to join the gang. He identified several photographs of
himself and other prison inmates that his aunt had posted on his Facebook page and
admitted that two individuals in the photographs were Mexikanemi members.
Mr. Hernandez stated that he met Mr. Hill through Mr. Mendez when he
accompanied Mr. Mendez to Tennessee while Mr. Mendez was transporting marijuana on
a bus. Mr. Hernandez admitted that he later came to Tennessee by bus to bring Mr. Hill
marijuana three or four times. Mr. Hernandez recalled that he stayed in a cabin for two
days in March 2011, while in Lake County. He stated that he never left the cabin except
to go out to eat with the Defendant and Mr. Hill. He recalled that the Defendant was
“driving [Mr. Hill] around.” He denied that anyone in a gold or champagne-colored car
with Texas tags came to see him or that he went anywhere in this car. He recalled that,
when Mr. Hill and the Defendant picked him up from the bus station, he had a duffle bag
and a backpack. He stated that he had about five pounds of marijuana inside the
backpack, which he sold to Mr. Hill for between $800 and $900. Mr. Hernandez testified
that he had “a couple” of marijuana suppliers and that he believed his marijuana came
from Mexico. During the last trip to Lake County, Mr. Hill informed Mr. Hernandez that
the marijuana was not selling for the price Mr. Hernandez requested. Mr. Hernandez
testified that he did not have a problem with Mr. Hill not paying him the money he
requested for the marijuana. He explained, “I knew it was, you know, no good like it had
too much seeds. I knew it was a struggle because I got it very cheap, so I knew he was
gonna have a hard time. But I just thought I could take the risk and bring it.” He recalled
that he told Mr. Hill to keep the marijuana because Mr. Hill “had a wedding coming.”
Mr. Hernandez stated that the Defendant gave him a ride to the bus station in
Jackson on March 3. Mr. Hernandez agreed that, when the Defendant drove him to
- 30 -
Jackson, he and the Defendant smoked marijuana together. He denied that he and the
Defendant discussed the amount of money Mr. Hill gave him for the marijuana. Mr.
Hernandez stated that he never called the Defendant, and he did not know the
Defendant’s phone number. Mr. Hernandez stated that, if the Defendant had his cell
phone number, Mr. Hill must have provided it to the Defendant.
Mr. Hernandez testified that on March 1, 2011, the Defendant and Mr. Hill picked
him up at the bus station. Once at Cabin 9, he and Mr. Hill discussed the marijuana and
how much Mr. Hill would sell it for. The following day, Mr. Hill informed him that he
was having trouble selling the marijuana and that it was “no good.” Mr. Hernandez
responded, “[C]ome on man[,] just do what you can do.” At the end of the day, he told
Mr. Hill, “[Y]ou know what, keep it.” He stated that Mr. Hill was supposed to pay
$1,300 for the drugs but that Mr. Hill gave him only $800 because Mr. Hill could not sell
it. Mr. Hernandez recalled that the Defendant came inside Cabin 9 twice—when he and
Mr. Hill took Mr. Hernandez to buy food and when the Defendant picked up Mr.
Hernandez to take him to the bus station. On those occasions, the Defendant watched
television and smoked marijuana. Mr. Hernandez said that he probably called Mr. Hill
on the afternoon of March 3 to let Mr. Hill know he was on the bus. He denied that he
and Mr. Hill talked about the Defendant during this call. He stated that there was no one
other than Mr. Hill that he would have been calling in West Tennessee.
Regarding phone calls from Mr. Hill on March 5, Mr. Hernandez testified that the
calls were likely about Mr. Hill having trouble selling the marijuana. Although he
initially testified that he knew the marijuana was of poor quality, Mr. Hernandez later
stated that Mr. Hill was “making up stories about [how] the weed [wa]s no good.” He
stated that he received a phone call from Mr. Hill after returning to Texas, during which
Mr. Hill told him about the Defendant “murdering people.” Mr. Hernandez denied that
he and Mr. Hill ever discussed having the Defendant transport marijuana from Texas to
West Tennessee. He stated that he continued communicating with Mr. Hill after leaving
for Texas because Mr. Hill still owed him money. Mr. Hernandez testified that the
prosecutor told him that, if he did not testify, he would “be a suspect” in the murders. He
stated that he knew nothing about a bloody towel being found in Cabin 9.
Mitchell Davis testified that he was a licensed private investigator who provided
forensic examination services of electronic devices, including cell phones. Mr. Davis
examined the Defendant’s cell phone in order to download and obtain information, such
as text messages sent and received, deleted text messages, and phone calls made and
received. When he received the cell phone, he placed it in a Faraday bag5 and connected
5
Mr. Davis explained that a Faraday bag was a bag made out of copper or other specialized metal
that keeps an electronic device from being able to transmit out or receive a signal.
- 31 -
the cell phone to a computer. Mr. Davis then utilized special software, which generated
an extraction report of the data on the Defendant’s cell phone. Based on the data he
retrieved from the Defendant’s cell phone, Mr. Davis testified that the cell phone
contained only ten text messages with the first message being received on March 4, 2011,
at 9:11 p.m. Mr. Davis explained, however, that there had been a forty-minute delay
between when the text message was sent and when the Defendant’s cell phone received
the message. Mr. Davis stated that the device was “either busy or shut off” and then
turned back on, which would explain the delay in receiving the message. Mr. Davis
opined that, based on the extraction data and the Defendant’s cell phone records, text
messages sent and received were missing from the cell phone. He said that “[a] missing
message can come up by somebody using the delete function on the phone, and the
message can be deleted if it’s part of a time cycle.” Mr. Davis testified that during the
gap of time between when the first text message was sent and when it was received—
from 9:31 p.m. to 10:11 p.m.—“there [was] a possibility that some messages were
deleted from that device.” He testified that text messages could not be accidently deleted
from the Defendant’s cell phone based on the steps required for deletion of a message.
Mr. Davis reviewed the phone calls between the Defendant and Mr. Hill and found
that between February 27, 2011, and March 4, 2011, there were forty-one texts messages
sent between the Defendant and Mr. Hill and sixty-two phone calls. Mr. Davis explained
that he could not retrieve the substance of the text messages shown on the Defendant’s
cell phone records, except for the ten messages left on the phone. Mr. Davis also
reviewed the cell phone records of Mr. Hernandez and located numerous text messages
and phone calls between Mr. Hill and Mr. Hernandez between February 27, 2011, and
March 5, 2011. Additionally, Mr. Hernandez’s cell phone records showed that he called
“West Tennessee numbers” fifty-one times during this time period.
On cross-examination, Mr. Davis stated that there were several possible
explanations for the forty-minute time gap. He said that someone could have turned off
the cell phone, or it was in an area with no reception. Mr. Davis testified that the text
messages could be deleted off the phone either individually or by group. Regarding how
text messages could be deleted from the cell phone, Mr. Davis stated:
You could physically delete it by having the device in your hand;
there’s one. If there’s a calendar built into the device that allows for
messages to be deleted after a certain period of time; there’s two. That’s a
manufacturer option. The third way would be because some type of
spyware or something remote could delete those messages. And if you
want to go on to number four, it could be because there’s a glitch in the
- 32 -
system, something could have happened to the phone that caused
catastrophic damage to something that was holding that text information.
He agreed that, if officers arrived at Mr. Chisholm’s residence at 9:17 p.m. and the
Defendant received a text message at 9:20 p.m., that the Defendant could have deleted all
of his prior text messages in less than a minute. Mr. Davis agreed that some drug dealers
will delete their text messages shortly after the messages are received so that no record of
the text messages existed. He stated that it was “[j]ust as possible” that the Defendant
deleted his messages shortly after they were received as it was that someone else deleted
the messages off of the cell phone after his arrest.
Dennis Waller, an expert in police investigation policies and procedures, testified
that he owned a licensed private detective agency and that he consulted and provided
expert testimony on police-related litigation. He explained that he had been asked to
review evidence in the Defendant’s case, including the TBI lab reports and narratives,
photographs of the crime scene, transcripts of testimony from prior hearings, and the
tangible evidence collected by the TBI. Additionally, Mr. Waller reviewed the TBI’s
policy and procedures manual. He stated that there were minimum standards for
investigative policies and procedures, which were accepted across the country, and that
the investigation of the victims’ murders had been deficient in multiple ways. Mr. Waller
testified that there should have been a crime scene log created to document who went in
and out of the victims’ residence, but no such log existed. Additionally, he said that an
attempt should have been made to collect samples from all of the different pools of blood
around the residence. He stated that the large pools of blood should have been “sectioned
or quartered [] off” and samples taken from different areas of the blood in order to
determine if it came from the victims or a perpetrator. Mr. Waller stated that the tangible
evidence collected at the crime scene did not comply with the accepted standards for
investigating a double homicide. He said that the investigation was “minimal” and that it
would “[a]bsolutely not” meet the minimum standards of a police investigation as
expected in a double homicide case. He identified blood stains in crime scene
photographs that should have been collected and explained that standard procedures
would require officers to collect this evidence. He testified that a blood spatter expert
should have been at the crime scene and that a technician should have dusted for
fingerprints on a variety of surfaces inside the residence. Mr. Waller further testified
that, upon the discovery of the “secondary crime scene” at Cabin 9, it should have been
treated “the same way . . . you would [treat] the primary crime scene.” He stated that
investigators should have attempted to collect the bloody towel from Cabin 9 after it had
been taken to the laundry shed and to collect the fruit punch cans from the dumpster.
Additionally, Mr. Waller criticized the Defendant’s interview by the TBI,
explaining that the recording of the notes by Agent Kring did not comply with the
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accepted standards required of such an interview. He stated that the interview should
have been recorded, and if a video camera was not available, Agent Kring’s notes should
have recorded the questions asked by Agent Bishop, as well as any “qualifiers,” in order
to “have the total context” of the Defendant’s statements. He noted that Agent Bishop
failed to ask the Defendant if he had killed the victims or whether the Defendant had been
present at the crime scene. Mr. Waller described such questions as “basic questions that
you would want answered.”
Janice Johnson testified as an expert in the areas of crime scene investigation and
analysis and blood spatter analysis. Ms. Johnson explained that she was a “[f]orensic
specialist” and owner of the Florida-based business, Forensic Pieces, where she taught
courses in forensics for law enforcement officers and crime scene investigators. Ms.
Johnson testified that she reviewed the forensic evidence collected by the TBI in the
Defendant’s case. In reviewing the crime scene photographs taken by the TBI, Ms.
Johnson noted that many of the photographs did not comply with accepted standards for
crime scene documentation. She stated that it was important to measure blood spatter at a
scene and that the “height of the stains and the size of the stains could be crucial.”
However, with the exception of a few photographs of the front door, the TBI failed to
photograph blood stain patterns at the scene with a proper scale. Regarding DNA
collection and analysis of blood spatter patterns, Ms. Johnson stated:
You would want to do proper collection of these spatter patterns to
determine whose blood is where. Obviously, in this case we have two
people that have received injuries. So you’d want to know whose blood is
where. And perspective in the violent attack[,] perhaps the perpetrator
injured themselves and in doing so sometimes they will leave blood stains
behind.
....
Oftentimes again, the violent attack will result in the perpetrator
injuring themselves and some of these stains may be displayed as passive
stains. When you look at blood stain pattern analysis you look at the stains
that are passive versus dynamic and a passive stain could be a drop of blood
or a couple of drops of blood from an injury. But without proper sampling
sometimes those blood stains from the perpetrator could be missed.
Ms. Johnson testified that insufficient blood samples were collected from the
crime scene for a reconstruction. She said that she had been asked to determine who may
have been injured first during the attack but stated that “[i]f sufficient samples had been
collected and sufficient photographs taken [she] may have been able to sort that out. But
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based upon four samples from that scene there’s no way [she could] sort that out.” She
stated that all blood patterns should have been sampled and that there were multiple areas
of blood that were not sampled. She stated that the failure to collect these samples
violated the minimum standards for crime scene analysis and processing. Ms. Johnson
further testified that areas of the crime scene should have been examined for latent
fingerprints, latent blood, and “touch DNA.” Ms. Johnson stated that “[t]he end result is
that we perhaps had forensic evidence that was not detected, collected or preserved that
could help us with the reconstruction of the case.” She identified multiple pieces of
evidence and areas of the crime scene that were not properly documented, collected, and
tested. She further stated that the TBI did not conduct any analysis of the blood spatter at
the crime scene. Regarding Cabin 9, Ms. Johnson testified that the fruit punch cans and
the towel with blood on it should have been collected and tested. She also noted that tire
impressions in the victims’ driveway were not preserved by the TBI.
Ms. Johnson testified that she analyzed the Defendant’s shirt for blood and found
one blood stain on the upper right shoulder and a second blood stain on the cuff of the
shirt. She sprayed the shirt with BlueStar Forensics, “a reagent that detects blood that’s
invisible to the naked eye.” She stated that the blood stains were “very small stains like
the size of . . . the head of a pin.” She further stated that the Defendant’s shirt was not
properly wrapped and packaged in butcher paper; rather, it was “just wrapped together in
a ball.” She also examined the Defendant’s camouflage overalls, blue jeans, and boots,
as well as the Defendant’s vehicle. She used BlueStar on the Defendant’s boots and
found that there were no areas of the boots that tested positive for possible blood.
Additionally, she stated that she found nothing on the Defendant’s boots that indicated
they made the tracks in blood on the victims’ kitchen floor. She stated that the
Defendant’s boots appeared not to have been washed as they still had dirt embedded in
the tread. Ms. Johnson stated that she would have expected to find blood residue on the
boots even if they had been washed because “when people scrub it’s impossible to
remove all the blood.” Ms. Johnson testified that no blood was found in the Defendant’s
vehicle, on his cap, camouflage overalls, or blue jeans. Regarding the blue jeans, Ms.
Johnson stated that, based on the crime scene, she would have expected blood on the
cuffs because they dragged the ground when the Defendant walked.
Dr. Alfonzo Valdez testified that he was a professor at the University of California
where he taught “gang classes.” He explained that he was also a retired police officer
with twenty-eight years’ experience, and he had a doctorate in psychology. Dr. Valdez
explained that he had previously worked as a narcotics investigator. He explained that, as
an investigator, he had “hundreds of hours of courses involving the histories, modus
operandi and characteristics of all the major street gangs.” Dr. Valdez testified that he
was familiar with Hispanic gangs, including the Mexikanemi out of Texas. He explained
that the Mexikanemi was an inmate-run prison gang. He stated, “All prison gangs
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operate in and outside the prison and many prison gangs have a relationship with the
local street gangs that they kind of adopted.” Dr. Valdez explained that “street gangs
have become the primary distributors and retailers of drugs that come from our prison
gangs. And the prison gangs get their drugs from the cartels.” He testified that gang
members can work with non-gang members to carry out the gang’s business.
Dr. Valdez reviewed Mr. Hernandez’s tattoos, criminal record, and prison records
and determined that Mr. Hernandez was a member of the Mexikanemi. He testified that
Mr. Hernandez would be killed in prison because of his tattoos if he were not a member
of the Mexikanemi. He testified that Mr. Hernandez likely had a “lower ranking
position” in the Mexikanemi and stated that a prison gang member “will not tell you in
court that he’s a prison gang member.” He explained that the Mexikanemi primarily
funded itself through drug sales, contract killings, extortion, and “home invasion
robberies[.]” Dr. Valdez explained that the term “mi cholos” meant “[m]y home boys,
my fellow gang members.” Dr. Valdez testified that the Mexikanemi operated in West
Tennessee at the time of the murders. He explained that the gang used the I-35 corridor
from Laredo to deliver drugs to the “eastern or mid part of the United States.” He stated
that the Mexikanemi used “extreme forms of violence to intimidate you and to control
you.” Dr. Valdez testified that, based on his review of the case, he believed that the
violence inflicted upon the victims was consistent with the violence of the Mexikanemi.
Dr. Valdez explained that he had also studied the Gangster Disciples, of which Mr.
Hill was a member. He stated that the Gangster Disciples were “one of the country’s
more violent gang[s].” Dr. Valdez explained that the victims’ murders were “very
consistent” with the operations of both the Mexikanemi and the Gangster Disciples. He
testified that the gangs use “hyper violence” for intimidation purposes. He stated, “They
come in numbers. They overpower you. They will . . . do brutal things to you to send a
message of fear and intimidation.” Dr. Valdez opined that the victims’ murders were
consistent with the Mexikanemi’s modus operandi. He explained that there was a lack of
a major struggle in the residence; he stated, “This was a very quick overpowering attack.
The [victims] had very little time to defend themselves.” He testified, based on his
experience, that a single person could not have committed the murders.
Dr. Richard Ofshe, an expert on police interrogations tactics and on the reliability
of suspects’ statements, testified that he had reviewed Agent Kring’s notes of the
Defendant’s interview with Agent Bishop. The notes, signed by the Defendant, read:6
6
Some words in Agent Kring’s handwritten notes are indiscernible to the court. As such, we
have attempted to reproduce the notes for the purposes of this opinion to the best of our ability.
- 36 -
Last night I was riding around drinking[.] I took drugs. Don’t
remember much between 10 pm-midnight. Cannot remember where I was.
I was alone. I was with my buddies earlier. Made it to Owl Hoot. What
happened happened. Woke up during the night seeing that thinking it was
too real to be a nightmare. Literally scared me. Waking up this morning
and Owl Hoot and being shot in the head. First I heard [two people] shot at
Owl Hoot[.] [D]id not think about it until I got to my car and worked
through it. Put two [and] two together. The nightmares were more than
real. Feel that my conscience was telling me what I had done. The only
thing I have been in court for is a traffic stop. I don’t do things like that.
Here lately I have been taking pills. This is not me. I don’t rob you
know. I am well off family. I smoke weed since 13. Pills off and on hydro
freshman [year of] high school. I have never been on drugs. Never done
cocaine. I do drugs and I don’t think I have a [] problem. The dream is
realer than real. The only thing it wakes me up-jerk up in a cold sweat. I
see him laying on the floor-cannot tell where on his stomach in a pool of
blood. No stab wounds. When I see her it might be in the kitchen-tile floor
next to a table laying on her back. It had to be a knife that I used. I could
have used a gun. I didn’t know I was taking one pistol when I took it. I
was by myself. I don’t know which knife I used. There[’]s 2-a hunting
knife-you might check in the middle consol[e]. There are 2 sections. I
don’t know maybe one in . . . the bottom. There are 2 hatchets in the back
area used for chopping wood. Curt-the guy where I was. I have not told
anyone about my dream. 10 pm-12 am no recollection of what happened.
Started drinking at 6 pm and riding around. Got home about 12 am.
Watched an episode of South Park . . . . At the house in his bed. Went to
sleep about 1 am. Woke up this morning like usual and went to school at
DCC. Have 1 class from 10-11 am. Taking 13 hours. The guns I might
have taken [and] thrown the guns in the river. There ain’t no telling where
it is. If I did take pills from the house I probably did not take any. If I did
take any pain medication it would be in my car. I took a shower this
morning. I cannot remember if I had any blood on them. I was going to
wear my Jordans this morning and I did not see anything on them. Did not
remember having blood on them. I did not even know that they moved out
there. Still thought [] my great grandmother’s husband who passed away.
Dr. Ofshe testified stated that Agent Kring’s notes of the Defendant’s statement
were “clearly not complete.” He explained:
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It doesn’t tell us everything that was said. It doesn’t tell us anything
about what tactics may have been used in order to facilitate getting
whatever it is that was written down from the suspect. These notes don’t
add up to anything. And even by the admission of the interrogators, they’re
not – they don’t add up to an admission to participation in the crime.
Dr. Ofshe noted that the Defendant’s statement was “couched as a dream” and was not “a
statement about something that happened.” He stated that, when looking at Agent
Kring’s notes, the context of the Defendant’s statements was unknown. Dr. Ofshe
testified that, if the details of the crime scene were known in the community at the time of
the Defendant’s statement, his statement could have been contaminated by that
information. Based on his analysis of the Defendant’s statement, Dr. Ofshe testified that
the statement was “worthless.”
State’s Rebuttal Proof
Matt Sipes of the Tennessee Highway Patrol testified that, in January 2011, he
began working with the DEA investigating large scale drug trafficking cases in northwest
Tennessee. Trooper Sipes stated that drug dealers who used buses to transport marijuana
would not transport more than about fifteen pounds because of the smell. He testified
that, in October 2011, he investigated “a sizeable outdoor grow” of marijuana in Obion
County. He explained that approximately eight Hispanic individuals were suspected for
their involvement in the grow and that two Hispanic individuals were identified and
arrested. Investigators found no connection between the two arrested men and Texas.
Additionally, he found no connection between the marijuana grow in Obion County to
anyone in Lake County.
Defendant’s Rebuttal Proof
Dr. Valdez testified that, based on his research and experience, a member of the
Mexikanemi would not travel by bus from Texas to Tennessee to sell only three to five
pounds of marijuana.
At the conclusion of proof, the Defendant moved for a judgement of acquittal,
arguing that no reasonable jury could find the Defendant guilty beyond a reasonable
doubt. The trial court determined that the issue of the Defendant’s guilt was a “question
of fact for the jury” and denied the motion. Following deliberations, the jury convicted
the Defendant of two counts of second degree murder, as a lesser-included offense of first
degree premediated murder; two counts of first degree felony murder; and two counts of
especially aggravated robbery.
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Sentencing
At sentencing, Paul Shell delivered a victim-impact statement on behalf of his
family, requesting that the Defendant receive consecutive life sentences.
Captain Dennis Dean, the jail administrator for the Obion County Jail, testified
that the Defendant was under his supervision from March 2011 through 2015. Captain
Dean explained that the Defendant had been kept in “solitary” for the entire time he was
in the “maximum security unit.” He described the Defendant as “respectful” and stated
that the Defendant followed the procedures and policies of the jail. He explained that the
Defendant read two or three books a week. Captain Dean recalled that the Defendant had
warned officers on more than one occasion of another inmate’s plans to “do harm” to a
staff member at the jail. Captain Dean testified that the Defendant gave no indication that
he would be an especially dangerous prisoner and that he never saw the Defendant lose
his temper when confronted by other inmates.
David Gray, the pastor at Abundant Life Fellowship, and his wife, Tammy Gray,
testified that they had known the Defendant since the Defendant was about a year old.
Pastor Gray described the Defendant as “very nice. Kind.” He testified that he had never
seen the Defendant lose his temper or act violently. Pastor Gray stated that the Defendant
was not a dangerous person and that he believed that the Defendant could be
rehabilitated. Mrs. Gray described the Defendant as “[s]weet” and stated that she did not
believe that the Defendant was especially dangerous.
Regina Bargery, the Defendant’s mother, testified that the Defendant was loving,
very respectful, and had a “[b]ig heart.” She stated that she had not known the extent of
the Defendant’s drug use until the trial. She said that there had never been any indication
that the Defendant might be violent towards another.
The Defendant then made an allocution statement to the court, during which he
reiterated that he did not kill the victims but expressed remorse that he involved himself
with drugs and Mr. Hill and Mr. Hernandez.
The trial court merged the Defendant’s second degree murder convictions into his
convictions for first degree felony murder and sentenced the Defendant to consecutive
life sentences. For his convictions for especially aggravated robbery, the trial court
sentenced the Defendant to fifteen years on both counts and ordered the sentences to run
concurrently with the life sentences. In ordering consecutive sentences, the trial court
found that the Defendant was a dangerous offender whose behavior indicated little or no
regard for human life and that the Defendant had no hesitation about committing a crime
in which the risk to human life was high. See Tenn. Code Ann. § 40-35-115(b)(4). The
- 39 -
trial court stated that the victims’ murders were “the bloodiest, most gruesome murders”
that the court had seen and recalled that the victims were “stabbed repeatedly and cut
repeatedly. Mrs. Shell’s throat was so violently sliced almost to the point of
decapitation.” The trial court found that the Defendant was “a danger to the public,”
citing State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). The court further noted that,
although the Defendant had no prior convictions, he had a history of criminal behavior
that included selling and delivering drugs. Regarding the Defendant’s allocution
statement, the trial court stated:
You do state that you’re sorry that the Shells were killed but, you
accept no responsibility at all for what has happened other than the fact that
you were present and that you - that this might not have happened had you
not been using drugs. You don’t, however, accept direct responsibility for
the crime. This bothers me. Your statement today bothers me.
The trial court found that the Defendant’s “lack of candor and . . . lack of remorse”
suggested that consecutive sentencing was appropriate.
Motion for New Trial Hearing
The Defendant filed a timely motion for new trial. At a hearing on the motion,
Officer Mason McDowell of the Dyersburg Police Department testified that he worked
mainly narcotics investigations, and in those cases, he occasionally needed to recover text
messages from suspects’ phones. He explained that many cell phone providers, including
Verizon Wireless, had preprinted preservation letters which law enforcement could use to
request that the company preserve the content of text messages. Officer McDowell
explained that Verizon “loosely guarantee[d] three to five days” worth of text messages
prior to the date the request for preservation was made. He stated that no subpoena was
needed for a preservation letter but that officers would typically obtain a subpoena after
filing the letter with the cell phone company. He said that the procedure was available in
March 2011.
On cross-examination, Officer McDowell stated that it was possible to delete
information from a cell phone remotely and that “it would not be difficult for one of [the
Defendant’s] associates, a family member, anyone else that would have the same interest
as him in getting rid of the messages” to delete them in this manner. Officer McDowell
agreed that law enforcement could have filed a preservation letter with the Defendant’s
cell phone company to preserve his text messages. However, he noted that, as the
account holder, the Defendant could have requested them at any time.
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Sergeant Dennis McCaig, with the Dyer County Sheriff’s Office, testified that he
had been responsible for developing the security protocol for the sequestered jury. He
stated that the officers working the security detail followed two rules—jurors were not
left alone unless they were in their particular hotel room and jurors were to have no
contact with anyone outside the jury. Regarding the jurors’ phone calls, Sergeant
McCaig stated that he instructed court officers to listen to jurors’ conversations and to
stay within two feet of the jurors during the calls. Sergeant McCaig explained that the
guidelines for the family member visitations were “very strict,” and the visits were “for a
very short period of time and with immediate family members only.” He stated that he
could hear the conversations between jurors and their visitors, and he did not hear anyone
discussing the trial. Sergeant McCaig instructed court officers to listen for “key words”
like “evidence” and “trial” while listening to the conversations between jurors and
visitors.
Eight deputies and two lieutenants of the Dyer County Sheriff’s Office testified
that they were part of the security detail for the sequestered jury during the Defendant’s
trial. Their testimony was consistent and generally repetitious. Court officers were on
duty twenty-four hours a day at the hotel where the jury stayed. Jurors were also
monitored by video surveillance, and cameras were set up on both ends of the hall of the
hotel in which the jury stayed. Jurors were supervised while on smoke breaks, and jurors
had no outside contact during those breaks. Jurors would occasionally use the exercise
room at the hotel in groups, and court officers supervised the jurors’ use of the exercise
room. Two or more court officers supervised the jury during family member visits, and
jurors were instructed not to discuss the case. Jurors were allowed to make one phone
call a day from a specific hotel phone. The jurors’ hotel rooms were not equipped with
phones. A log with the juror’s name, the date and time, the number called, whom the
juror called, the juror’s relationship to that person, and the topic of the conversation was
maintained. A member of the court security detail would remain close to the juror during
their phone call to insure the juror did not speak about the trial. None of the court
security detail heard or saw anything to indicate that the jurors at any time discussed the
case.
Several members of the jury also testified. Juror Johnson explained that the jury
had been sequestered during the three week trial and that, during that time, deputies went
with the jurors “everywhere [they] went.” Juror Johnson stated that she never discussed
the facts of the case with anyone outside of the jury. She further testified that, to her
knowledge, no other jurors spoke to anyone outside the jury about the case. Juror
Johnson recalled that on several occasions the jury was allowed visitation with family
members. She stated that she and other jurors were made aware that, if they were caught
discussing the case with family, the trial would end. Juror Johnson testified that she did
not discuss the case during family member visitation and that she never heard other jurors
- 41 -
talking about the case at that time. Juror Johnson testified that two to three deputies
supervised the family member visitation and stood “on the outside watching everybody.”
Juror Johnson testified that there were occasional “smoke breaks” for jurors but that a
deputy was always supervising them. Juror Johnson recalled that, during deliberations,
another juror discussed a letter written by the Defendant with a “very dark” poem at the
bottom of it, which had been introduced at trial. The juror said that the Defendant was
“highly intelligent” and had a “dark side.”
On cross-examination, Juror Johnson stated that jurors were allowed to make
phone calls to family members, and the calls were recorded on a call log. She recalled
that a deputy was always in the room with a juror when she made a phone call, and the
deputy could hear her side of the conversation. Juror Johnson recalled that during
deliberations another juror said that the Defendant’s “granddaddy was a big farmer who
had money, and that he had been known for buying his family members out of trouble
with his money.” This juror also said that the Defendant’s grandfather was paying his
legal fees.
Juror Vestal testified that she would occasionally go on a smoke break at the hotel
with other jurors and that there was always a deputy outside with them. She stated that
they were not approached by anyone during the smoke breaks and that the jurors did not
discuss the case while on smoke breaks. Juror Vestal stated that she went to the exercise
room at the hotel a couple of times and that a deputy was in the room supervising jurors
while they exercised. She recalled that, a few times, jurors gathered in their hotel rooms
to watch movies, talk, and play cards. She stated that she was able to make phone calls
only while supervised by a deputy, and she explained that all of her phone calls were
logged by deputies. Juror Vestal said that she never had a conversation about the trial
during her phone calls. Juror Vestal participated in the two family member visitations;
she stated that she never discussed the trial with visitors. Juror Vestal testified that she
did not recall a juror saying anything about the Defendant’s grandfather. On cross-
examination, Juror Vestal explained that one juror read the letter written by the
Defendant to other jurors during deliberations. The juror also read the poem at the end of
the letter, which Juror Vestal believed the Defendant had written. Juror Vestal did not
recall any jurors “saying anything negative or positive” regarding the poem.
Juror Holland testified that he served as a juror at the Defendant’s trial. He
recalled that he would occasionally join other jurors during smoke breaks and that a
deputy always accompanied jurors for those breaks. Juror Holland testified that the only
time he was left alone was “[w]hen [he] went to sleep at night.” He explained that there
was not a phone in his hotel room, and jurors were not allowed to have cell phones.
When he wanted to make a phone call, he had to go into a hotel room with a deputy, who
monitored his conversations. Juror Holland stated that he never discussed the case during
- 42 -
these phone calls. He stated that, when he would go to the exercise room, a deputy would
stand at the door and watch. He recalled that there were several deputies in the room
during family member visitations and that he never heard other jurors discussing the case
with family members during those meetings. On cross-examination, Juror Holland stated
that one juror requested a magnifying glass during deliberations so that she could read the
poem at the end of the Defendant’s letter. Juror Holland said that he believed that the
Defendant had written the poem but that the jurors did not talk about it “a whole lot,” and
no one attempted to interpret the poem. He stated that he did not hear any juror comment
about the Defendant’s grandfather.
Juror Bennett, a juror at the Defendant’s trial, testified that when she went on
smoke breaks or to the exercise room a deputy always accompanied her and the other
jurors, and they were never left unattended. She stated that deputies maintained a call log
of all of the jurors’ phone calls, and a deputy was in the room while she was on the
phone. Juror Bennett said that she never had a conversation about the trial during her
phone calls. She stated that no one attempted to tell her anything about the case during
these conversations. Juror Bennett recalled that there were several deputies watching the
jurors during family member visits, and the deputies were in a position to overhear their
conversations. Juror Bennett never heard anyone talking about the trial during the visits.
Juror Bennett explained that she had “heard of the Bargerys most all of [her] life”
because she lived nearby but that she did not know the family personally. During
deliberations, she mentioned that a member of the Bargery family was “a well[-]known
farmer in Lake County.” She explained:
I had said that I had known his grandmother, Miss Billie, for several
years, and I hated that she was having to go through what she was having to
go through. And that’s the only thing I remember ever saying about that.
On cross-examination, Juror Bennett said that she did not recall discussing the
Defendant’s father’s death during deliberations nor did she recall saying that the
Defendant’s grandfather “always bought those boys out of trouble[.]” Regarding the
poem on the Defendant’s letter, Juror Bennett stated that she believed he had written it.
Juror Edwards testified that she served as a juror at the trial. She recalled that
deputies escorted jurors when they wanted to use the exercise room and take smoke
breaks. Juror Edwards said that deputies never left jurors unattended and that no one
outside the jury attempted to talk to her about the Defendant’s case. She recalled that the
deputies made a call log of each juror’s phone calls and that deputies were in the same
room while jurors were on the phone. She said that, during the phone calls, she never had
a conversation about the trial. During family member visitations, the deputies were in the
same area monitoring the interaction. She stated that she never spoke to visitors about
- 43 -
the case and that she did not overhear any other jurors speaking about it. Juror Edwards
recalled that she played cards two times with other jurors in a hotel room, but they were
“very careful” not to discuss the trial. She testified that, at no point during the trial, was
she provided information by anyone outside the jury. On cross-examination, Juror
Edwards stated that she did not recall Juror Bennett talking about the Defendant’s family.
Regarding the poem on the Defendant’s letter, Juror Edwards stated that she was not sure
if the Defendant had written the poem.
Following a hearing, the trial court entered a written order denying the motion for
new trial. This timely appeal follows.
Analysis
I. Motion to Suppress
Before trial, the Defendant filed a motion to suppress, requesting that the trial
court suppress all evidence obtained as a result of the illegal seizure, search, and arrest of
the Defendant. At an evidentiary hearing, Chief Kenny Lee of the Ridgely Police
Department testified that he received a phone call on March 4, 2011, from an anonymous
caller who stated that the Defendant was “trying to sell guns.” Chief Lee then “passed
the tip along” to the Lake County Sheriff’s Department, the agency investigating the
victims’ murders.
Deputy Patrick Leake of the Lake County Sheriff’s Department testified that,
during the investigation at the crime scene, investigators determined that guns and
jewelry were missing from the Shell residence. After the sheriff’s department received
an anonymous tip that the Defendant was “selling guns around town,” Deputy Leake was
tasked with locating the Defendant in order to ask him about the guns. Deputy Leake,
along with Deputy Mario Montgomery, patrolled the county for several hours before
seeing the Defendant’s vehicle at the residence of Dennis Chisholm. Deputy Leake
intended to conduct a knock and talk at the Chisholm residence. He parked his patrol car
in the driveway, exited the vehicle, and knocked on the front door of the residence.
When Mr. Chisholm answered the door, Deputy Leake asked Mr. Chisholm if the
Defendant was at the residence, and Mr. Chisholm replied that he was there. Deputy
Leake then asked for permission to enter the residence, saying that he “needed to talk to
[the Defendant].” Mr. Chisholm told Deputy Leake to “come on in.” Once inside,
Deputy Leake saw Mr. Chisholm’s son, Curt, standing in the kitchen and asked,
“[W]here did [the Defendant] go?” Curt told the deputy that the Defendant “just ran out
the back door.” Deputy Leake went to the open back door, looked outside, and saw the
Defendant standing by a shed. While standing in the doorway, Deputy Leake said to the
Defendant, “Hunter, come here,” and the Defendant “walked right to [him].” Deputy
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Leake said, “Let’s go out front. We need to talk to you.” The Defendant responded,
“Okay.” Deputy Leake did not have his weapon drawn and did not make any threats to
the Defendant. The Defendant and Deputy Leake walked back through the residence and
out the front door. By the time they got to the driveway, additional officers had arrived at
the residence. There were four or five police cars, but the cars did not have their blue
lights activated. Deputy Leake did not place handcuffs on the Defendant or touch the
Defendant, and he did not ask the Defendant any questions. Deputy Leake testified that
he noticed no signs that the Defendant was under the influence of drugs or alcohol.
Deputy Jason Tubbs asked the Defendant for consent to search his car, and the
Defendant gave consent. The Defendant said, “[Y]eah, search it, there’s nothing in
there.” Moments later, Deputy Allison arrived and read the Defendant his Miranda
rights. Deputy Allison asked the Defendant if he had sold any guns, and the Defendant
said that he had not. Deputy Allison then asked for consent to search the Defendant’s
vehicle, and the Defendant again consented. Deputy Leake testified that deputies made
no threats and did not attempt to coerce the Defendant.
Deputy Leake recalled that when they began searching the Defendant’s car, he
conducted a pat down of the Defendant for weapons for “officer safety.” Deputy Leake
first asked the Defendant, “Can I pat you down? Do you have anything on you?” The
Defendant responded, “Go ahead, there’s nothing on me or in my car.” Upon conducting
the pat down, Deputy Leake noticed a square object in the right cargo pocket of the
Defendant’s pants. Deputy Leake was unsure of what the object was; he thought that it
could have been a small gun in a case. Deputy Leake removed the object from the
Defendant’s pocket and found that it was a digital scale in a leather case and that the
scale had marijuana residue on it.
Deputy Leake asked Mr. Chisholm for consent to search the yard to make sure
there were no “weapons or drugs or anything back there.” Mr. Chisholm consented to the
search. Deputy Leake found several baggies containing marijuana in the backyard “in a
pretty straight line,” leading to where he had seen the Defendant.
Chief Deputy Jason Allison testified that, on March 4, 2011, he responded to the
crime scene at the Shell residence after the victims’ bodies were discovered by family
members. Deputy Allison cleared the house, “making a quick sweep of the house.” He
saw that the house appeared to have been ransacked; he saw a wallet laying in the floor
and jewelry spread out on a bed. Investigators learned from the victims’ family members
that several guns and some pieces of jewelry were missing from the residence.
Deputy Allison testified that he received a call from Chief Lee, who told him that
he had received a tip that the Defendant had been “selling guns in town.” He also learned
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that the Defendant was “kin” to the Shell family by marriage. He told Deputy Leake to
talk to the Defendant and ask if he had sold any guns that day. That evening, Deputy
Allison heard a radio transmission from Deputy Leake that he had located the
Defendant’s vehicle at Dennis Chisholm’s residence. Deputy Allison then heard a
second radio transmission from Deputy Leake that the Defendant “just ran out the back
door.” He responded to the Chisholm residence, arriving approximately two minutes
after the transmission. There were four or five deputies standing outside with the
Defendant and a couple of Tiptonville City officers sitting in their patrol cars on the
street. The Defendant, who was standing in the driveway, was not handcuffed, officers
did not have their weapons drawn, and no one was searching the Defendant’s car.
However, Deputy Tubbs told Deputy Allison that the Defendant had given consent to
search his vehicle.
Deputy Allison read the Defendant his Miranda rights, and the Defendant
indicated that he understood his rights. Deputy Allison testified that he was familiar with
the signs of intoxication, and the Defendant did not appear to be under the influence of
any intoxicant. He asked the Defendant if he had any guns or if he had sold any guns that
day. When the Defendant denied having or selling guns, Deputy Allison asked for
permission to search his car. The Defendant responded, “Yes, sir, go ahead, there’s
nothing in there.” It was a “very casual conversation,” and the Defendant was not
threatened or coerced into giving consent. Deputy Allison searched the front passenger
side door. He saw a pill bottle on the floor board, which contained pills that appeared to
be Xanax, but the bottle did not contain a label. He removed the pill bottle and a cell
phone. He and Sheriff Avery then saw a knife between the seats, and Sheriff Avery said,
“I think there’s blood on this.” Deputy Tubbs was searching the trunk, and he reported,
“Chief, we got costume jewelry in the back.” At that time, Deputy Allison told everyone
to stop searching and “back out of the vehicle.” He knew that the vehicle would need to
be processed because they had possibly found items from the Shell residence. Deputy
Leake informed Deputy Allison of the digital scale and marijuana residue in the
Defendant’s pocket, and Deputy Allison arrested the Defendant for possession of drug
paraphernalia.
Sheriff Bryan Avery testified that he went to the Chisholm residence after hearing
Deputy Leake’s radio transmission that he had found the Defendant’s vehicle. When he
arrived, the Defendant was standing in the driveway; he did not appear to be under
duress, he was not in handcuffs, and officers did not have their weapons drawn. After the
Defendant consented to a search of his vehicle, Sheriff Avery and Deputy Allison found a
knife near the center console. The knife had a “red substance” on it where the blade and
the handle met.
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Deputy Jason Tubbs testified that Deputy Allison instructed deputies that, if they
saw the Defendant, they should stop and ask if he was selling guns. Deputy Tubbs
testified that he went to the Chisholm residence after hearing Deputy Leake’s radio
transmission that he had located the Defendant but that the Defendant was “running out
the back door.” When Deputy Tubbs arrived at the residence, the Defendant and Deputy
Leake were coming out the front door of the house. Deputy Leake did not have his
weapon drawn and was not touching the Defendant, and the Defendant never said that he
wanted to leave. Deputy Tubbs asked the Defendant for consent to search his vehicle.
The Defendant consented to the search and asked Deputy Tubbs, “What’s this about, Owl
Hoot?” Deputy Tubbs recalled that the Defendant then took a step towards the vehicle as
if he was going to open the door for Deputy Tubbs when Deputy Allison pulled into the
driveway. Deputy Tubbs informed Deputy Allison that the Defendant had given consent
to search his car. Deputy Allison also asked for permission to search the vehicle, and the
Defendant stated, “Yes, sir, go ahead.” Deputy Tubbs searched the trunk of the vehicle.
The trunk was “pretty packed,” but underneath everything, Deputy Tubbs found a Crown
Royal bag containing jewelry. When Deputy Allison instructed everyone to “[g]et away
from the vehicle,” Deputy Tubbs closed the trunk.
Deputy Corey Glidewell testified that Deputy Allison told deputies to “be on the
lookout” for the Defendant because the Defendant was supposed to have been selling
guns that may have come from the Shell residence. Deputy Glidewell arrived at the
Chisholm residence after Deputy Leake and Deputy Montgomery. Deputy Glidewell saw
Deputy Leake perform a pat down search of the Defendant while they were under the
carport in the driveway. Deputy Leake told the Defendant that he was going to pat down
the Defendant “for safety.”
Dennis Chisholm testified that, on March 4, 2011, he was at his residence on
Headden Drive in Tiptonville with his wife and son, Curt, when Deputy Leake knocked
on his door. Deputy Leake asked if the Defendant was there and if he could speak to the
Defendant. Mr. Chisholm told Deputy Leake that the Defendant “just went out the back
door.” At that time, Deputy Leake “came through the house to the door that [the
Defendant] had left out of.” Two other officers stood inside the door but did not come
through the house with Deputy Leake. Mr. Chisholm later counted twenty-four officers
outside the front of the house and saw that there were patrol cars blocking the
Defendant’s car in the driveway. Both Mr. Chisholm and his wife, Rachelle Chisholm,
testified that, in their interactions with the Defendant earlier that afternoon, the Defendant
appeared to be intoxicated.
Deputy Mario Montgomery testified that, after the sheriff’s department received
information from “someone” that the Defendant “had been trying to sell a stolen pistol or
a computer,” he and Deputy Leake found the Defendant’s vehicle at the Chisholm
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residence on Headden Drive. Deputy Montgomery said that he had known the Defendant
for several years and was familiar with the Defendant’s car. Deputy Montgomery said
that they pulled in the driveway and “parked behind [the Defendant’s] vehicle.” Deputy
Montgomery explained that he was standing in the carport area when he heard Deputy
Leake say, “He’s running out the back door.” Deputy Montgomery entered the fenced
backyard where he saw the Defendant beside a shed, petting some puppies. Deputy
Montgomery recalled that Deputy Leake asked the Defendant if he could conduct a pat
down for his safety while they were still in the backyard. The Defendant said, “I don’t
have anything on me . . . you can search me if you like.” When Deputy Leake patted
down the Defendant, he felt “bulges” in the Defendant’s jacket. When Deputy Leake
asked what it was, several bags of marijuana fell onto the ground. Deputy Montgomery
testified that, after the discovery of the bags of marijuana, Deputy Leake placed the
Defendant in handcuffs and walked “through the [fence] gate back onto the concreted
driveway.” When they got to the front yard, the Defendant asked him, “This doesn’t
have anything to do with the . . . Shells’ murder, does it?” Deputy Montgomery told him
that he was “not at liberty to discuss anything with [the Defendant] at th[at] time.” He
told the Defendant that he was just there to “pick him up” and that an investigator
“wanted to speak with [the Defendant].”
Following the hearing, the trial court entered a memorandum opinion, which read
in pertinent part:
[W]hile officers were investigating a gruesome murder scene, they
discovered that there [were] jewelry and guns missing. During the
investigation at the crime scene, they received a call from Chief Kenny Lee
stating that an unidentified informant had advised them that [the Defendant]
was attempting to sell guns. Knowing that guns had been taken from the
Shell home and with this tip, the Lake County Sheriff’s Department
deputies were notified to locate [the Defendant], and question him about
whether or not he had been selling guns. Sheriff Avery, [] Deputy Allison,
[] Agent Bishop and [] Agent Ferguson continued their investigation at the
scene. Deputy Leake located the [D]efendant’s car at the Dennis Chisholm
home in Tiptonville. Deputy Leake went to the home and knocked on the
front door and asked Mr. Chisholm if [the Defendant] was there. He was
told that he was there. Deputy Leake was invited in to talk to [the
Defendant]. At this point, Kirk Chisholm standing in the kitchen[,] stated
that [the Defendant] had just run out the back door. The Sheriff’s
Department was notified that the [D]efendant had run out the back door.
Deputy Leake called for the [D]efendant[,] who was in the backyard. The
[D]efendant came to the house. They went out the front of the house at
which point the [D]efendant was asked by Deputy Tubbs if they could
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search his car. At this time, [] Deputy Allison arrived. The [D]efendant
had already been [M]irandized, and Chief [Deputy] Allison [M]irandized
him again and also got permission to search the vehicle. At this point,
Deputy Leake performed a pat down and found drug paraphernalia. During
the search of the vehicle, the Lake County Sheriff’s Department found
evidence of jewelry and a knife which appeared to have blood on it. Up to
this point, the [D]efendant had not been in custody. The defense argues
that he was unable to leave because he was blocked in and because there
appeared to be an overwhelming number of law enforcement officers
present. The [D]efendant, however, was not in custody and no custodial
interrogation had taken place at that time. He was then placed under arrest
for being in possession of drug paraphernalia. He was taken to the Sheriff’s
Department where he was again [M]irandized and he was interviewed. He
had asked a question at the Chisholm home as to whether or not this
involved Owl Hoot Road. The Shell home was on Owl Hoot Road.
Although the [D]efendant was never formally advised the reason for the pat
down or a search of his vehicle, it appears that the [D]efendant knew why
the requests were made. At no time at the Chisholm home were any
weapons drawn or any threats or attempts to coerce the [D]efendant [made].
The [D]efendant was not handcuffed when his consent to search his vehicle
was given or when his consent to a pat down was given. The search of the
vehicle started after the [D]efendant had been [M]irandized and after he had
given permission to search the vehicle.
The Court does not find that there was a formal seizure of the
[D]efendant until after the pat down. The Court also finds that the Terry
pat down was constitutionally valid as it was supported by reasonable
suspicion of criminal activity. In addition to the anonymous tip, all of the
officers involved were aware that there had been a gruesome murder. They
were aware that there was a relationship between the [D]efendant and the
parties murdered. They also were aware that jewelry and guns had been
taken from the crime scene. When Deputy Leake went to the Chisholm
home, it appeared that the [D]efendant was running out the back door.
With all this information, the Court finds that a Terry stop was proper under
the circumstances of this case.
The Court finds also that[,] although the Defendant may not have
appeared to have been himself, there is no evidence to conclude that he was
under the influence of alcohol or drugs so that he was unable to understand
the request being made of him or the Miranda Rights which he was given
on multiple occasions. The Court, therefore, finds that he gave consent to
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search the vehicle and consent to make the pat down although it does not
appear necessarily that consent for the pat down was necessary. Although
there were many officers present and the driveway was blocked, the Court
does not feel that the consent to search the vehicle should be suppressed
because of a coercive environment. The defendant was not threatened or
coerced in any way. He was not placed under arrest or handcuffed until
after the pat down when drug paraphernalia was discovered. The conduct
of all the officers present does not negatively affect the validity of the
consent.
Accordingly, the trial court denied the Defendant’s motion to suppress.7
On appeal, the Defendant contends that his rights under the Fourth Amendment of
the United States Constitution and Article I, section 7 of the Tennessee Constitution were
violated by the trial court’s denial of his motion to suppress evidence obtained by the
search of his person and automobile. The Defendant contends that the trial court: (1)
erroneously relied upon the anonymous tip as a basis for the detention; (2) erroneously
found that the Defendant was not in custody when he was searched by Deputy Leake; (3)
erroneously found that, although the Defendant was never formally advised of the reason
for the pat down search or a search of his vehicle, it appeared that the Defendant knew
why the requests were made; (4) erred in finding there was no formal seizure of the
Defendant until after the pat down; and (5) erred in finding the Terry pat down was
constitutionally valid and supported by reasonable suspicion. The State responds that the
trial court properly denied the motion to suppress because the Defendant’s encounter with
law enforcement was consensual “up to and including the time digital scales containing
marijuana residue were discovered on his person.” Alternatively, the State asserts that
any Terry stop was supported by reasonable suspicion.
A. Standard of Review
When reviewing a motion to suppress, this court is bound by the trial court’s
findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and
resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable
7
The Defendant subsequently filed a motion to alter or amend the trial court order denying the
motion to suppress. Following a second evidentiary hearing, however, the trial court found that “there
was no material change in the testimony of various witnesses” and concluded, after reviewing the
transcript of the Defendant’s preliminary hearing, the transcript of a defense expert, and the transcript of
evidence from the initial motion to suppress hearing, that there was no basis for altering or amending the
trial court’s original memorandum opinion.
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inferences that may be drawn therefrom. Id. We review the trial court’s conclusions of
law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005). When reviewing a trial
court’s ruling on a motion to suppress, this court may consider the entire record,
including the proof presented at the suppression hearing as well as at trial. State v.
Thacker, 164 S.W.3d 208, 248 (Tenn. 2005); State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001); State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998).
B. Police-Citizen Encounters
It is well-settled that courts have divided police-citizen encounters into three
different categories: (1) a full scale arrest which must be supported by probable cause; (2)
a brief investigatory detention which must be supported by reasonable suspicion; and (3)
brief police-citizen encounters which require no objective justification. State v. Daniel,
12 S.W.3d 420, 424 (Tenn. 2000) (citing Brown v. Illinois, 422 U.S. 590 (1975); Terry v.
Ohio, 392 U.S. 1, 20-22 (1968); Florida v. Bostick, 501 U.S. 429, 434 (1991)). “Of the
three categories, only the first two rise to the level of a ‘seizure’ for constitutional
analysis purposes.” State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008).
The United States and Tennessee Constitutions protect citizens from unreasonable
searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000). “[A] warrantless search or seizure is presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the search or seizure was conducted pursuant to one of the
narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55
(1971)). A seizure occurs when “in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he or she was not free to leave.”
Daniel, 12 S.W.3d at 425 (internal citations omitted). “In order to determine whether a
particular encounter constitutes a seizure, a court must consider all the circumstances
surrounding the encounter to determine whether police conduct would have
communicated to a reasonable person that the person was not free to decline the officer’s
request or otherwise terminate the encounter.” Id. (quoting Bostick, 501 U.S. at 440)
(internal quotation marks omitted). The factors that a court should consider when
determining whether a seizure has occurred include, but are not limited to, “the time,
place and purpose of the encounter; the words used by the officer; the officer’s tone of
voice and general demeanor; the officer’s statements to others who were present during
the encounter; the threatening presence of several officers; the display of a weapon by an
officer; and the physical touching of the person of the citizen.” Id. at 425-26 (internal
citations omitted). The Fourth Amendment is implicated when a police officer:
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(1) pursues an individual who has attempted to terminate the contact by
departing; (2) continues to interrogate a person who has clearly expressed a
desire not to cooperate; (3) renews interrogation of a person who has earlier
responded fully to police inquiries; (4) verbally orders a citizen to stop and
answer questions; (5) retains a citizen’s identification or other property; (6)
physically restrains a citizen or blocks the citizen’s path; [or] (7) displays a
weapon during the encounter.
Id. at 426 (citing 4 Wayne R. LaFave, Search & Seizure, § 9.3 (a), at 104 (3d ed. 1996 &
Supp. 1999) (collecting cases)).
C. Consent Exception to the Warrant Requirement
Consent is one of the recognized exceptions to the warrant requirement.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order to be valid, consent must
be “‘unequivocal, specific, intelligently given, and uncontaminated by duress or
coercion.’” State v. Ingram, 331 S.W.3d 746, 760 (Tenn. 2011) (quoting State v. Berrios,
235 S.W.3d 99, 109 (Tenn. 2007)) (internal quotation marks omitted). “Whether an
individual voluntarily consents to a search is a question of fact to be determined from the
totality of the circumstances.” Berrios, 235 S.W.3d at 109. “The pertinent question is . .
. whether the [individual’s] act of consenting is the product of an essentially free and
unconstrained choice. If the [individual’s] will was overborne and his or her capacity for
self-determination critically impaired, due process is offended.” State v. Cox, 171
S.W.3d 174, 185 (Tenn. 2005) (citing Schneckloth, 412 U.S. at 225-26). Factors to be
considered when evaluating the voluntariness of consent include the time and place of the
encounter; whether the encounter was in a public or secluded place; the number of
officers present; the degree of hostility; whether weapons were displayed; whether
consent was requested; and whether the consenter initiated contact with the police. Id.
The State bears the burden of proving that the consent was freely and voluntarily given.
State v. Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).
Here, the evidence shows that, after Deputy Leake saw the Defendant’s car at the
Chisholm residence, he parked his patrol car in the driveway, exited the vehicle, and
knocked on the front door of the residence. Mr. Chisholm answered the door, and
Deputy Leake asked if the Defendant was there. Mr. Chisholm replied in the affirmative
and invited Deputy Leake into the residence to speak to the Defendant. Curt Chisholm,
who was standing in the kitchen, stated that the Defendant had “just run out the back
door.” Deputy Leake went to the open back door, looked outside, and saw the Defendant
standing by a shed in the backyard. Deputy Leake did not approach the Defendant. He
stood rather in the doorway and called to the Defendant, “Hunter, come here,” and the
Defendant “walked right to [him].” Deputy Leake explained that he needed to talk to the
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Defendant and suggested that they “go out front.” The Defendant and Deputy Leake then
walked back through the residence to the front of the house and stood in the driveway.
Additional officers had arrived at the residence by this time; there were approximately
five patrol cars in the driveway and on the road. There were four or five deputies
standing outside with the Defendant and some officers sitting in their patrol cars on the
street. However, the blue lights on the patrol cars were not activated.
When the Defendant came outside, Deputy Tubbs asked the Defendant for consent
to search his vehicle, and the Defendant gave consent. The Defendant said, “[Y]eah,
search it, there’s nothing in there,” and then the Defendant asked Deputy Tubbs, “What’s
this about, Owl Hoot?” The Defendant took a step towards the vehicle as if he was going
to open the door for Deputy Tubbs when Deputy Allison pulled into the driveway.
Deputy Tubbs informed Deputy Allison that the Defendant had given consent to search
his car. After providing the Defendant his Miranda rights, Deputy Allison asked the
Defendant if he had sold any guns, and the Defendant said that he had not. Deputy
Allison then asked if he could search the Defendant’s vehicle, and the Defendant again
consented. At this point, Deputy Leake asked the Defendant if he could perform a pat
down search for officer safety and asked the Defendant, “Do you have anything on you?”
The Defendant responded, “Go ahead, there’s nothing on me or in my car.” Deputy
Leake performed a pat down and found a set of digital scales, which contained marijuana
residue. While searching the Defendant’s car, deputies discovered jewelry in the trunk
and a bloody knife in between the front seats. Deputy Allison placed the Defendant
under arrest for possession of drug paraphernalia.
Under the totality of the circumstances, we conclude that the deputies’ initial
interaction with the Defendant was a consensual encounter and that the search of his
person and vehicle were based on the Defendant’s voluntary consent. Deputy Leake
lawfully approached the Chisholm residence to conduct a “knock and talk,” which
required no basis for suspecting the Defendant of having committed a crime. See State v.
Cothran, 115 S.W.3d 513, 522 (Tenn. Crim. App. 2003). The evidence shows that the
deputy was invited to enter the residence by Mr. Chisholm. Deputy Leake did not go out
into the backyard after the Defendant but stood in the doorway and called for the
Defendant. The Defendant showed no hesitation in speaking with Deputy Leake and
“walked right to [him].” As they came back through the residence, Deputy Leake did not
touch the Defendant or place him in handcuffs. When Deputy Tubbs asked the
Defendant for consent to search his vehicle, the Defendant expressed a desire to
cooperate with the officers. The Defendant replied, “[Y]eah, search it, there’s nothing in
there,” and he stepped towards the vehicle as if to open the door for the deputies. After
being given his Miranda warnings, the Defendant again consented to a search of his
vehicle. The Defendant also consented to Deputy Leake’s pat down search, which led to
the finding of the drug paraphernalia. The deputies made no threats toward the
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Defendant or attempts to coerce him to consent to the search, and no weapons were
drawn. His responses to the requests for consent showed no indication that the Defendant
was ambivalent or equivocal in his consent. Further, the trial court determined that there
was no evidence to conclude that the Defendant was under the influence of alcohol or
drugs such that he was unable to understand his Miranda rights and the requests being
made of him.
The Defendant contends that the initial encounter with Deputy Leake was not
consensual because of the overwhelming number of police officers outside the Chisholm
residence and because his vehicle was blocked in the driveway. However, the evidence
shows that the Defendant gave no indication he wanted to leave, and there is no
allegation that deputies physically restrained him. Daniel, 12 S.W.3d at 426. The
Defendant also argues that that Deputy Leake had no cause to conduct the pat down
search because he did not have reasonable suspicion of criminal conduct. However,
Deputy Leake did not need reasonable suspicion because the Defendant freely and
voluntarily consented to the pat down search.
On balance, we agree with the trial court that the Defendant’s initial encounter
with the deputies was consensual; he voluntarily consented to the search of his person
and vehicle. He was not “seized” until Deputy Leake found him in possession of drug
paraphernalia, at which time deputies had probable cause to arrest the Defendant. This
issue is without merit.
II. Exclusion of Statements Made by Mr. Hill and Mr. Hernandez
During several jury-out hearings, the Defendant testified about various out-of-
court statements objected to by the State as hearsay. In one hearing, the Defendant
testified that Mr. Hill told him during the drive to the Kentucky state line that he and Mr.
Hernandez had already agreed upon the sale price for the marijuana by the pound.
However, Mr. Hill stated that he was going to try to get the people from Kentucky to buy
the marijuana for more money and, at the same time, he was going to tell Mr. Hernandez
that “he couldn’t get what they had agreed on, that he could only get less.” Mr. Hill said
that he was going to “short” Mr. Hernandez. He then instructed the Defendant that, if he
were ever asked about the marijuana, he needed to “take up” for Mr. Hill and tell Mr.
Hernandez that there was “nothing going on.”
The Defendant additionally testified about a phone conversation he overheard
between Mr. Hill and Mr. Hernandez when the Defendant and Mr. Hill were at the
Kentucky state line. He explained that there was a dispute between Mr. Hill and Mr.
Hernandez and that the Defendant heard Mr. Hill tell Mr. Hernandez that he could not
sell the marijuana for $1100 or $1300 per pound and that the people from Kentucky were
- 54 -
only willing to pay $700 or $750 per pound. The Defendant testified, “[Mr. Hill] was
saying he couldn’t help the fact that they were saying that it wasn’t good marijuana and
he said he was trying to sell it but [Mr. Hernandez] was gonna have to work with him on
it.”
The Defendant also testified that he heard a conversation between Mr. Hill and
Mr. Hernandez while at Cabin 9. Mr. Hernandez told Mr. Hill that it “wasn’t his weed
and he couldn’t just go back and tell the people that he . . . brought it down from that he
couldn’t sell it.” Mr. Hernandez complained that “they had already agreed on the amount
and that he couldn’t . . . just get less for it like that.” Mr. Hernandez said that it was
“good weed.”
In another jury-out hearing, the Defendant testified about his conversation with
Mr. Hernandez during the drive to Jackson. Mr. Hernandez stated that the Defendant was
supposed to start picking him up from Texas and driving him to West Tennessee. Mr.
Hernandez explained that it was too risky and dangerous for him to use the bus any
longer and that he was afraid “they were gonna get caught riding on the bus.” Mr.
Hernandez told the Defendant:
It’s a lot safer and easier for [the Defendant] to use [his] car moving the
stuff. They could move a lot more marijuana and that . . . [the Defendant]
would be driving from Texas to pick him up and take him back every time.
The Defendant testified that, at this time, he knew he was in “way [] over his
head[.]” The Defendant told Mr. Hernandez he did not mind picking him up at the bus
station. Mr. Hernandez asked, “Has [Mr. Hill] not talked to you about this?” He then
told the Defendant, “Look, we’re not using the bus no more [sic]. It’s done. It’s way too
dangerous. We can’t take that risk anymore. You’re - you’re the bus. You’re gonna be
coming to pick me up from Texas and driving me back and forth.” The Defendant stated
that he told Mr. Hernandez that he was in school and lived at home with his mother.
However, Mr. Hernandez stated that “[t]he decision’s already been made. You are the
bus from now on.” Mr. Hernandez said that he had “already talked to [his] people” and
that they would all “be making a lot more money.”
The Defendant testified that he did not argue further with Mr. Hernandez; the
Defendant thought that Mr. Hill would “be reasonable” about the situation because Mr.
Hill “knew that [the Defendant] was in school [and] that [he] wouldn’t have time to do
it.” However, the Defendant testified that, when he later asked Mr. Hill about the plan
for him to drive to Texas, Mr. Hill told the Defendant that it was “already a done deal . . .
that it was gonna be better for everybody, that everybody was gonna be making a lot
more money.”
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The Defendant further testified that, during the ride to Jackson, Mr. Hernandez
was worried about going back to Texas without the money that he was supposed to have.
Mr. Hernandez blamed Mr. Hill for this and asked the Defendant, “[W]hy would [Mr.
Hill] do[] this to me? Why is he doing this?” The Defendant stated:
[Mr. Hernandez] asked me that and he kept saying, “I don’t know what I’m
gonna do when I get back. I don’t know what I’m gonna tell them.” He
went through all the prices. That’s when he said, “We agreed on [sic] I was
supposed to get [$]1100 or $1300 for every pound.” He’s telling me “I’m
only getting this and I know that it’s crap; that I should be getting more and
I don’t know what I’m gonna tell the people that I got it from. It’s not my
weed. I gotta tell them something and they’re not gonna be happy about
that.”
The Defendant responded to Mr. Hernandez by saying, “I don’t think that [Mr. Hill]
would be doing anything like that and all the times that I’ve been with him he hasn’t done
that from what I know.”
Mr. Hernandez then asked the Defendant what the Defendant thought about
driving and “selling more weight.” The Defendant told Mr. Hernandez that he did not
know enough people and that he could not drive to Texas. However, Mr. Hernandez
asked for the Defendant’s cell phone number, and he placed his number into the
Defendant’s cell phone under the name “Lobo.”
The Defendant testified that he called Mr. Hill after dropping off Mr. Hernandez.
The Defendant told Mr. Hill that Mr. Hernandez knew Mr. Hill was “shorting him.”
When the Defendant told Mr. Hill that Mr. Hernandez wanted him to sell marijuana, Mr.
Hill became angry with the Defendant. Mr. Hill then instructed the Defendant to “come
straight to [Mr. Hill’s] house.” The Defendant explained that Mr. Hill was mad initially
because he thought that the Defendant had told Mr. Hernandez about “shorting him[.]”
The Defendant described the rest of his conversation with Mr. Hill at Mr. Hill’s
residence, as the following:
He started asking me again what all I’d said to [Mr. Hernandez] and
what all [Mr. Hernandez] had said to me, talking about the day before on
the way to Jackson. And I told him again that . . . it seemed to me that [Mr.
Hernandez] was wanting me to sell marijuana for him, that he had put his
number in my phone but I had told him that I couldn’t sell marijuana for
him; that I couldn’t do any of that. I couldn’t do it. And [Mr. Hill] told me,
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“You did the right thing. You made the smart choice. You did the right
thing.”
The Defendant testified that he was scared during this conversation with Mr. Hill because
he believed that Mr. Hill “at any moment . . . was just gonna rear back and smack [him].”
The Defendant testified at an additional jury-out hearing about a conversation he
had with Mr. Hill during the 11:42 p.m. phone call on March 3. The Defendant explained
that Mr. Hill demanded that he “[g]et up and come over here” because “we’ve gotta do
something.” When he got to Mr. Hill’s residence, Mr. Hill walked over to his car and
told the Defendant, “We got somewhere we’ve gotta go. They’re gonna be following
us.” Mr. Hill then directed the Defendant to drive out to Owl Hoot Road. Once there, he
ordered the Defendant to pull into the driveway of the victims’ residence. The Defendant
asked, “What’s going on?” Mr. Hill replied, “Just pull in the f***ing driveway.”
The Defendant also testified that, after the murders, Mr. Hill told him to “find a
way into” the victims’ laptop and to “hold everything” in his car until morning. The
following day at Mr. Hill’s residence, Mr. Hill instructed the Defendant to sell the
victims’ property quickly so “we don’t have to worry about it anymore.” Mr. Hill also
threatened him saying, “Because we know where your family’s at. We know where
you’re all at out on the highway. We know where your granddaddy lives over in the
Ville. We know where your grandparents live. You know what’ll happen.”
The trial court ruled that the Defendant was seeking to admit this evidence for the
truth of the matters asserted. The trial court noted that Rule 803(3) allows for the
admission of statements of intent “to prove the declarant’s future conduct but not to prove
the future conduct of another person,” and the trial court determined that the purpose of
the Defendant’s proposed testimony was to try “to prove the plan of what you’re referring
to as the Mexican Cartel or the Mexican Mafia.” The trial court stated that it had also
considered the Defendant’s due process rights and found that it did not “override, in this
situation, the rules of evidence[.]”
On appeal, the Defendant asserts that the trial court erroneously excluded as
hearsay portions of the Defendant’s testimony regarding statements made by Mr. Hill and
Mr. Hernandez.8 The Defendant contends that the statements were non-hearsay offered
to show the impact on the listener and that the statements were admissible under the state
8
In his brief, the Defendant additionally contends that the trial court erroneously excluded
portions of the Defendant’s testimony regarding statements made by “the Mexicans.” However, he fails
to identify any statements purportedly made by “the Mexicans” that the trial court ruled inadmissible.
Accordingly, the Defendant has waived consideration of this issue. See Tenn. R. Ct. Crim. App. 10(b);
see also Tenn. R. App. P. 27(a)(7)(A).
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of mind hearsay exception pursuant to Rule 803(3) of the Tennessee Rules of Evidence.
Further, the Defendant argues that the proposed testimony—which consisted of Mr.
Hill’s plan to “short” Mr. Hernandez, Mr. Hernandez’s plan to use the Defendant as “the
bus,” and the threats made to the Defendant by Mr. Hill and Mr. Hernandez—was critical
to establishing the defense of duress. He asserts that the trial court’s rulings denied the
Defendant his constitutional right to present a defense. The State responds that the trial
court properly excluded the evidence as hearsay and, alternatively, that any error was
harmless because the substance of the evidence was introduced in other ways during the
presentation of the defense case.
A. Hearsay
Under the Tennessee Rules of Evidence, “hearsay” is any statement, other than
one made by the declarant while testifying at trial or in a hearing, offered into evidence to
prove the truth of the matter asserted. Tenn. R. Evid. 801. Hearsay statements are not
admissible unless they fall within one of the evidentiary exceptions or some other law
renders them admissible. Tenn. R. Evid. 802. One exception long-recognized by
Tennessee courts is the state of mind hearsay exception, which applies to:
[a] statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it relates
to the execution, revocation, identification, or terms of declarant’s will.
Tenn. R. Evid. 803(3). The Advisory Commission Comment concerning the exception
provides that “[t]he Commission contemplates that only the declarant’s conduct, not
some third party’s conduct, is provable by this hearsay exception.” Id., Advisory
Comm’n Cmts.; State v. Leming, 3 S.W.3d 7, 17-18 (Tenn. Crim. App. 1998).
Additionally, this court has held that evidence under this Rule is only admissible when
the declarant’s state of mind would be relevant. State v. Burns, 29 S.W.3d 40, 47 (Tenn.
Crim. App. 1999).
Declarations are non-hearsay when they are used to prove the effect on a listener:
[A]ny time the statement is used to prove the hearer or reader’s
mental state upon hearing the declaration, words repeated from the witness
chair do not fall within the hearsay exclusion. The statement fails the test
of hearsay because it is not used to prove the truth of the matter asserted in
the statement.
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Neil P. Cohen, et al., Tennessee Law of Evidence, § 8.01[7], at 8-23 (5th ed. 2005)); see
also State v. Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980) (noting that the
victim’s statement was not hearsay because it was offered for its effect on the hearer, the
defendant, and established evidence of his motive in returning to the scene of the crime
later in the day and threatening the victim); State v. Carlos Jones, No. W2008-02584-
CCA-R3-CD, 2010 WL 3823028, at *14-15 (Tenn. Crim. App. Sept. 30, 2010), perm.
app. denied (Tenn. Mar. 9, 2011) (concluding that declarant’s statements were non-
hearsay and were properly admitted to prove the effect they had on the listener).
Even if a statement qualifies as a hearsay exception or is non-hearsay, it must be
relevant to be admissible. Tenn. R. Evid. 402. Evidence is considered relevant if it has
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. However, Rule 403 of the Tennessee Rules of Evidence
provides, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” “Unfair prejudice” is defined as “[a]n undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Advisory
Committee Note to Federal Rule of Evidence 403).
In Kendrick v. State, our supreme court addressed the standard of review
applicable to the review of hearsay statements:
The standard of review for rulings on hearsay evidence has multiple
layers. Initially, the trial court must determine whether the statement is
hearsay. If the statement is hearsay, then the trial court must then
determine whether the hearsay statement fits within one of the exceptions.
To answer these questions, the trial court may need to receive evidence and
hear testimony. When the trial court makes factual findings and credibility
determinations in the course of ruling on an evidentiary motion, these
factual and credibility findings are binding on a reviewing court unless the
evidence in the record preponderates against them. State v. Gilley, 297
S.W.2d [739], 759-61 [(Tenn. Crim. App. 2008)]. Once the trial court has
made its factual findings, the next questions—whether the facts prove that
the statement (1) was hearsay and (2) fits under one [of] the exceptions to
the hearsay rule—are questions of law subject to de novo review. State v.
Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v.
Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005).
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454 S.W.3d 450, 479 (Tenn. 2015).
In his brief, the Defendant identifies ten sets of statements that he contends the
trial court erred by excluding. We will address each in turn.
1. Mr. Hill’s statements about his plan to short Mr. Hernandez
The Defendant acknowledges that Mr. Hill’s statements about his plan to cheat
Mr. Hernandez were hearsay but asserts that they were admissible under the state of mind
hearsay exception found in Rule 803(3) because they were statements of Mr. Hill’s plan
or design. He contends that Mr. Hill’s shorting of Mr. Hernandez led to a dispute
between Mr. Hill and Mr. Hernandez and, ultimately, the killing of the victims. The State
concedes that Mr. Hill’s statements could amount to a “plan” under Rule 803(3) and that
they would be admissible to show that Mr. Hill had, in fact, carried out that plan. The
State argues, however, that Mr. Hill’s cheating Mr. Hernandez would establish a “motive
to retaliate against [Mr.] Hill, not [the Defendant].” In excluding the evidence, the trial
court determined that the true purpose of the statements was to establish the
Mexikanemi’s role in the murders. Because only the declarant’s conduct, not some third
party’s conduct, is provable by the state of mind hearsay exception, we conclude that the
testimony was not admissible under Rule 803(3). See Tenn. R. Evid. 803(3), Advisory
Comm’n Cmts.; Leming, 3 S.W.3d at 17-18; State v. Farmer, 927 S.W.2d 582, 595
(Tenn. Crim. App. 1996).
2. Statements made by Mr. Hill to Mr. Hernandez as Mr. Hill carried out his plan
to short Mr. Hernandez
The Defendant contends that the statements made by Mr. Hill to Mr. Hernandez as
Mr. Hill carried out his plan to short Mr. Hernandez were admissible because they were
non-hearsay. He asserts that they were not offered for the truth of the matter asserted but
to show the impact on the Defendant. However, the Defendant did not testify about the
effect these statements had on him during the defense proffer. Thus, we cannot
determine the relevance of the statements’ impact on the Defendant. The Defendant has
a duty to prepare a record that conveys “a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of the appeal.” Tenn. R. App. P.
24(b). The scope of appellate review is limited to the facts established in the record.
Tenn. R. App. P. 13(c). In the absence of an adequate record on appeal, this court must
presume that the trial court’s rulings were supported by sufficient evidence. See Vermilye
v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979). Because the Defendant did not
testify about the effect these statements had on him during the defense proffer, we must
conclude that the trial court’s ruling was proper.
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3. Statements by Mr. Hill and Mr. Hernandez about their plan for the Defendant to
transport drugs from Texas
The Defendant argues that the statements made by Mr. Hill and Mr. Hernandez
that the Defendant would be required to transport large amounts of marijuana from Texas
to Tennessee were admissible under the state of mind hearsay exception because they
were statements of their plan or intent for the purposes of Rule 803(3). We agree that
Mr. Hill’s and Mr. Hernandez’s statements concerning the Defendant’s transporting
marijuana to Texas were statements of intent or plan for purposes of Rule 803(3) which
would be admissible to prove conduct in conformity with the plan. However, in
excluding the evidence, the trial court determined that the Defendant’s purpose in
admitting the statements was to establish the Mexikanemi’s plan or role in victims’
murders—not that of Mr. Hill or Mr. Hernandez. Because only the declarant’s conduct,
not some third party’s conduct, is provable by the state of mind hearsay exception, we
conclude that the testimony was not admissible under the exception. See Tenn. R. Evid.
803(3), Advisory Comm’n Cmts.; Leming, 3 S.W.3d at 17-18; Farmer, 927 S.W.2d at
595.
In any event, as noted by the trial court and the State, the substance of this
testimony was admitted at trial. Specifically, the Defendant testified that, while driving
Mr. Hernandez to the bus station in Jackson, Mr. Hernandez told the Defendant that
“from now on” the Defendant would be going to Texas to pick up Mr. Hernandez and the
marijuana instead of Mr. Hernandez taking a bus. The Defendant further testified that he
attempted to talk to Mr. Hill about driving back and forth to Texas. He explained why he
could not do it, but Mr. Hill did not accept his explanation. Mr. Hill said that the
Defendant did not have any choice about whether to drive Mr. Hernandez. The
Defendant is not entitled to relief on this ground.
4. Mr. Hernandez’s statements to the Defendant indicating that Mr. Hernandez knew that
Mr. Hill was shorting him
The Defendant asserts that Mr. Hernandez’s statements indicating that Mr.
Hernandez knew that Mr. Hill was shorting him were admissible under Rule 803(3)
because they established Mr. Hernandez’s fear and concern of “going back to his
superiors without the money because it was not his marijuana.” The Defendant argues
that the testimony showed Mr. Hernandez’s then-existing state of mind and “the reason
for the actions taken in response.” However, even if the statements concerned Mr.
Hernandez’s state of mind, Mr. Hernandez’s state of mind would not be relevant. Mr.
Hernandez did not kill the victims, and his statements would only be relevant to provide
the reason for the actions of third parties, i.e., the Mexikanemi members. Thus, we
conclude that the testimony was not admissible under Rule 803(3). See Tenn. R. Evid.
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803(3), Advisory Comm’n Cmts.; Leming, 3 S.W.3d at 17-18; Farmer, 927 S.W.2d at
595.
5. Statements made by Mr. Hernandez and Mr. Hill during their argument at Cabin 9
The Defendant asserts that the statements made by Mr. Hernandez and Mr. Hill
during their argument at Cabin 9 were offered for the purpose of establishing their state
of mind and for the impact those statements had on the Defendant. Upon review, we note
that the Defendant did not testify about the impact the statements had on him during the
defense proffer. Additionally, despite the trial court’s initial ruling, the Defendant
testified about the argument at Cabin 9 during trial. The Defendant testified that he drove
Mr. Hill back to Cabin 9, and they both went into the cabin. The Defendant testified that
there was “an intense discussion” between Mr. Hill and Mr. Hernandez at that time and
that it looked like the men were going to fight. Mr. Hernandez was angry and scared and
“wasn’t happy with the way things were going.” The Defendant explained that, although
the agreed-upon sale price for the marijuana had been between $1100 and $1300 per
pound, Mr. Hernandez was “getting considerably less” from Mr. Hill—around $700 to
$800 per pound. Because the Defendant was able to put this evidence before the jury,
any error in the trial court’s ruling did not affect the judgment or result in prejudice to the
judicial process. See Tenn. R. App. P. 36(b); State v. Rodriguez, 254 S.W.3d 361, 375
(Tenn. 2008). The Defendant is not entitled to relief.
6. Mr. Hernandez’s and Mr. Hill’s response to the Defendant’s refusal to be the driver to
and from Texas
The Defendant asserts that the responses from Mr. Hernandez and Mr. Hill to the
Defendant’s refusal to drive were admissible for the impact on the Defendant, i.e., “to
show why the Defendant became alarmed and fearful.” Once again, it appears from the
record that, despite the trial court’s ruling, the Defendant was allowed to present the
substance of these statements. Specifically, the Defendant testified that he realized he
was “in over his head” when Mr. Hernandez spoke of the plan to use the Defendant to
transport him and marijuana from Texas. The Defendant testified that Mr. Hernandez did
not accept his refusal to drive; instead, Mr. Hernandez asked the Defendant for his phone
number because he wanted to be able to contact the Defendant directly. The Defendant
testified that, rather than arguing with Mr. Hernandez about it, he decided to talk to Mr.
Hill about the plan. He stated that he believed Mr. Hill would “be reasonable” about the
situation because Mr. Hill knew that the Defendant lived at home with his mother. The
Defendant stated, however, that when he explained to Mr. Hill why he could not do it,
Mr. Hill did not accept his explanation. Mr. Hill said that the Defendant did not have any
choice about whether to drive Mr. Hernandez. Because the Defendant was able to put
this evidence before the jury, any error in the trial court’s ruling did not affect the
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judgment or result in prejudice to the juridical process. See Rodriguez, 254 S.W.3d at
375. The Defendant is not entitled to relief based on this claim.
7. Mr. Hernandez’s statements to the Defendant that the Defendant would be dealing
directly with him instead of Mr. Hill and would be “selling more weight”
The Defendant argues that Mr. Hernandez’s statements that the Defendant would
be dealing directly with him instead of Mr. Hill and would be “selling more weight” were
admissible for the impact on the Defendant and not for the truth of the matter asserted. It
appears from the record that, in fact, the Defendant testified to these statements at trial.
He testified that Mr. Hernandez stated that the Defendant was “gonna be selling more
marijuana, a lot of . . . large amounts of marijuana.” The Defendant explained that Mr.
Hernandez asked the Defendant for his phone number because he wanted to be able to
contact the Defendant. Mr. Hernandez then stored his phone number in the Defendant’s
cell phone under the name “Lobo.” The Defendant also testified that, during the
conversation, he realized that he was in “way [] over his head” but that, rather than
arguing with Mr. Hernandez, he decided to talk to Mr. Hill about the plan. The
Defendant’s trial testimony is nearly identical to his proffered testimony. As such, any
error in the trial court’s ruling did not affect the judgment or result in prejudice to the
judicial process, and we see no basis for relief based on the Defendant’s claim.
8. Mr. Hill’s conversations with the Defendant about Mr. Hernandez
The Defendant argues that Mr. Hill’s statements and questions about Mr.
Hernandez were admissible under Rule 803(3) to show Mr. Hill’s state of mind and were
also admissible to “provide the reason for [the Defendant]’s fear.” From a review of the
record, it is clear that the Defendant testified to the substance of his conversations with
Mr. Hill about Mr. Hernandez. He testified that Mr. Hill was mad at Mr. Hernandez “for
approaching [the Defendant] to sell marijuana” and that, by their second phone call, Mr.
Hill was “very mad” at the Defendant as well. Once at Mr. Hill’s residence, Mr. Hill
began “grilling” the Defendant about what he had said to Mr. Hernandez. The Defendant
assured Mr. Hill that he had “take[n] up” for Mr. Hill. However, Mr. Hill did not believe
the Defendant. The Defendant testified that he feared Mr. Hill would “smack” him. He
said that he was scared of what Mr. Hill was accusing him of and felt threatened by Mr.
Hill. The further Defendant testified:
Because what we were talking involved way, way, way more than what I
was prepared to do and it was on so many levels on top of what I was, what
I could ever be. And I knew that there was [sic] some serious people
involved and I couldn’t - I didn’t want to be involved in this. And they
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were - they were telling me that I was involved, that I was gonna be
involved, that I didn’t have any choice about it.
Here, the trial court clearly allowed the Defendant to testify extensively about the
conversations with Mr. Hill about Mr. Hernandez and about the impact of those
conversations on the Defendant. There is nothing in the defense proffer that was not
testified to by the Defendant at trial. Because the Defendant was able to put this evidence
before the jury, any error did not affect the judgment or result in prejudice to the judicial
process. See Rodriguez, 254 S.W.3d at 375. Accordingly, the Defendant is not entitled
to relief on this ground.
9. Mr. Hill’s statement during his late-night phone call to the Defendant that “[t]here’s
something we’ve gotta do”
The Defendant contends Mr. Hill’s statement that “[t]here’s something we’ve
gotta do,” although hearsay, was admissible under Rule 803(3) to establish Mr. Hill’s
state of mind. The trial court ruled that the statement was not admissible. We agree with
the Defendant that the statement at issue reflects Mr. Hill’s then-existing mental state and
intent to do “something” and would be admissible to prove Mr. Hill’s future conduct.
Nevertheless, the trial court determined that the purpose of the Defendant’s proposed
testimony was to try “to prove the plan of what you’re referring to as the Mexican Cartel
or the Mexican Mafia.” Because the testimony was offered to prove conduct of not only
the declarant but of another person, the testimony was not admissible under Rule 803(3).
See Tenn. R. Evid. 803(3), Advisory Comm’n Cmts.; Leming, 3 S.W.3d at 17-18;
Farmer, 927 S.W.2d at 595.
Although not specifically argued by the Defendant on appeal, the statement could
have been admissible as non-hearsay for the effect it had on the Defendant, i.e., that it
caused the Defendant to get out of bed and drive to Mr. Hill’s residence on the night of
the murders. See Venable, 606 S.W.2d at 301. We conclude, however, that any error in
excluding Mr. Hill’s statement was harmless because the Defendant was allowed to
testify about the effect that Mr. Hill’s phone call had on him. The Defendant testified
that, after the call, he put clothes back on and went to Mr. Hill’s residence because the
Defendant did not want Mr. Hill to continue to be angry with him. The Defendant is not
entitled to any relief on this ground.
10. Mr. Hill’s statements to the Defendant after the murders threatening the Defendant’s
family
The Defendant contends that the trial court erred in excluding Mr. Hill’s threat the
morning after the murders. Specifically, the Defendant testified that Mr. Hill said, “[W]e
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know where your family’s at. We know where you’re all at out on the highway. We
know where your granddaddy lives over in the Ville. We know where your grandparents
live. You know what’ll happen.” The Defendant argues that Mr. Hill’s statements were
not offered for the truth of the matter asserted but for the non-hearsay purposes of
providing context for and explaining why the Defendant was selling or attempting to sell
the victims’ property. The State appears to respond that any error in the exclusion of this
testimony was harmless because the Defendant was able to put before the jury the “tall
Mexican’s” threats on the night of the murders and because the Defendant was allowed to
testify that as a result of his conversation with Mr. Hill the following morning he “had to
sell all the stuff quick . . . so that [they] wouldn’t have to worry about it.”
Upon review, we agree with the Defendant that Mr. Hill’s statements were non-
hearsay because they were offered for the effect on the hearer, the Defendant, and would
tend to establish that the Defendant was acting under duress when he sold the victims’
property as instructed by Mr. Hill the day after the crime. See Venable, 606 S.W.2d at
301. Nevertheless, we cannot conclude that the error more probably than not affected the
judgment. As noted by the State, the Defendant testified extensively regarding the threats
made the previous night when the victims were killed. Specifically, the Defendant
testified that the “tall Mexican” told him, “This is what happens to people who think that
they can f*** with us” and stated, “You are going to do every[thing] and anything that
you’re told to do or this s*** [will] happen again.” The Defendant testified that he was
not at the victims’ residence that night of his own free will and that he did not want to
enter the house. He went in because the “tall Mexican” made him. The Defendant
further testified to his fear and terror following the murders and stated, “They thought
that they had just killed my great-granny and [Mr. Hill] knew where my mama lived,
where my brothers lived.” Moreover, the Defendant testified that he asked Mr. Hill what
to do with the victims’ property and that he acted to sell the victims’ property based on
Mr. Hill’s instructions. The Defendant testified that, when he sold the items taken from
the victims’ residence, he was not acting of his own free will. He said that he had not
wanted to sell the items. Accordingly, the Defendant is not entitled to relief based upon
the trial court’s erroneous exclusion of Mr. Hill’s statements.
B. Right to Present a Defense
“Exclusions of evidence may violate the Due Process Clause of the Fourteenth
Amendment of the United States Constitution even if the exclusions comply with rules of
evidence.” State v. Flood, 219 S.W.3d 307, 315-16 (Tenn. 2007). “Principles of due
process require that a defendant in a criminal trial have the right to present a defense and
to offer testimony.” Id. at 316 (citing Chambers v. Mississippi, 410 U.S. 284, 294
(1973); State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000)). In Washington v. Texas, the
United States Supreme Court stated:
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The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense, the
right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies. Just as an
accused has the right to confront the prosecution’s witnesses for the
purpose of challenging their testimony, he has the right to present his own
witnesses to establish a defense. This right is a fundamental element of due
process of law.
388 U.S. 14, 19 (1967).
The right to present witnesses, while of critical importance, is not absolute.
Brown, 29 S.W.3d at 432 (quoting Chambers, 410 U.S at 295). “In the exercise of this
right, the accused, as is required of the State, must comply with established rules of
procedure and evidence . . . .” Chambers, 410 U.S. at 302. Rules of procedure and
evidence are designed to assure fairness and reliability in the criminal trial process. Id.
“So long as the rules of procedure and evidence are not applied arbitrarily or
disproportionately to defeat the purposes they are designed to serve, these rules do not
violate a defendant’s right to present a defense.” Flood, 219 S.W.3d at 316 (citing
United States v. Scheffer, 523 U.S. 303, 308 (1998)).
Based on our review, the evidence excluded by the trial court as hearsay consisted
of Mr. Hill’s statements about his plan to short Mr. Hernandez; Mr. Hernandez’s
statements indicating that he knew that Mr. Hill was shorting him; Mr. Hill’s statement
that “we’ve gotta do something”; and Mr. Hill’s statements after the murders threatening
the Defendant’s family. In order to determine whether the exclusion of this evidence
rises to the level of a constitutional violation, we consider whether: (1) the excluded
evidence is critical to the defense; (2) the evidence bears sufficient indicia of reliability;
and (3) the interest supporting exclusion of the evidence is substantially important.
Brown, 29 S.W.3d at 433-34 (citing Chambers, 410 U.S. at 298-301). We must carefully
consider the facts of the case to determine whether the constitutional right to present a
defense was violated by this exclusion of evidence. See id. at 433.
1. Evidence critical to the defense
The United States Supreme Court has recognized that an exclusion of evidence is
unconstitutional when it “significantly undermine[s] fundamental elements of the
defendant’s defense.” See Scheffer, 523 U.S. at 315. The question of whether excluded
evidence is critical to a defense is a fact-specific inquiry. See Chambers, 410 U.S. at 303.
Types of evidence previously recognized as critical to the defense include: evidence that
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someone else confessed to the crime, Chambers, 410 U.S. at 300; evidence that a minor
victim had sex with an adolescent to establish an alternative basis for the child’s injury,
Brown, 29 S.W.3d at 434-36; evidence of the defendant’s hypnotically enhanced
memories to his establish his recollection of the crime, Rock v. Arkansas, 483 U.S. 44, 62
(1987), and testimony about the circumstances and voluntariness of the defendant’s
confession, Crane v. Kentucky, 476 U.S. 683, 691 (1986).
In this case, Mr. Hill’s plan to short Mr. Hernandez and Mr. Hernandez’s
knowledge of the plan would establish a motive for Mr. Hernandez and the Mexikanemi
to retaliate against Mr. Hill, not against the Defendant. Additionally, although Mr. Hill’s
threat to the Defendant following the murders would tend to show that the Defendant was
acting under duress when selling the victims’ property, the Defendant was allowed to
testify about the threats from the “tall Mexican” and about the fear and terror he felt
following the murders. The Defendant testified that he was not at the victims’ residence
that night of his own free will and that he did not want to enter the house. He went in
because the “tall Mexican” made him. The Defendant also stated that, when he sold the
items taken from the victims’ residence, he was not acting of his own free will. He said
that he was acting on Mr. Hill’s instructions and that he had not wanted to sell the items.
The Defendant testified that Mr. Hill knew where his family lived and that he “wasn’t
gonna let that happen to [his] family.” Thus, evidence that the Defendant was acting
under duress was presented to the jury. Likewise, although the jury did not hear Mr.
Hill’s statement that “we’ve gotta do something,” the jury heard the effect Mr. Hill’s
statement had on the Defendant—the purpose for which it would have been admissible.
Because the exclusions did not significantly undermine any elements of the defense, the
exclusions did not consist of the type of evidence that has previously been recognized as
critical, and in light of the Defendant’s additional testimony concerning duress, we
conclude that the excluded testimony was not critical to the defense.
2. Sufficient indicia of reliability
We agree with the Defendant that Mr. Hill’s statements regarding his shorting of
Mr. Hernandez and Mr. Hernandez’s statements that he knew Mr. Hill was shorting him
have some indicia of reliability. Both Mr. Hill and Mr. Hernandez testified at trial that
Mr. Hernandez brought marijuana from Texas, which Mr. Hill was to sell for an agreed-
upon price. Additionally, Mr. Hill testified that he paid Mr. Hernandez considerably less
than what Mr. Hernandez wanted for it because, according to Mr. Hill, the marijuana was
of poor quality. Mr. Hernandez, however, testified Mr. Hill had “ma[de] up stories about
[how] the weed [wa]s no good.” The Defendant’s testimony about Mr. Hill’s statement
that “we’ve gotta do something,” however, bares no indicia of reliability except that the
defense offered phone records that showed Mr. Hill called the Defendant at 11:42 p.m. on
the night of the murders. Finally, nothing indicates that the Defendant’s testimony—that
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Mr. Hill threatened him and his family following the murders—was reliable. We
conclude that, although the excluded statements about Mr. Hill shorting Mr. Hernandez
and Mr. Hernandez’s awareness of this contain some indicia of reliability, this
consideration is not determinative under the facts and circumstances of this case.
3. Interest supporting exclusion
Here, the interests supporting exclusion are the interests behind Rule 802 of the
Tennessee Rules of Evidence. Rule 802 provides generally that hearsay is not admissible
and serves an important interest in excluding testimony that is untrustworthy. The United
States Supreme Court described the interest behind the hearsay rule in Chambers:
The hearsay rule, which long has been recognized and respected by
virtually every State, is based on experience and grounded in the notion that
untrustworthy evidence should not be presented to triers of fact. Out-of-
court statements are traditionally excluded because they lack the
conventional indicia of reliability: they are usually not made under oath or
other circumstances that impress the speaker with the solemnity of the
statements; the declarant’s word is not subject to cross-examination; and he
is not available in order that his demeanor and credibility may be assessed
by the jury.
410 U.S. at 298 (citing California v. Green, 399 U.S. 149, 158 (1970)).
As we have previously determined, Mr. Hill’s statements about his plan to cheat
Mr. Hernandez and Mr. Hernandez’s statements indicating that he knew Mr. Hill was
cheating him do not fall within a recognized hearsay exception and were, thus, excluded
based on their unreliability. Accordingly, the interests behind Rule 802 supported the
exclusion of this testimony. Moreover, the exclusion of this evidence did not
significantly undermine any elements of the defense. See Scheffer, 523 U.S. at 315. We
conclude, therefore, that the trial court’s exclusion of this testimony did not deny the
Defendant the right to present a defense.
Mr. Hill’s statement that “we’ve gotta do something” and his statements
threatening the Defendant’s family following the murders were admissible for the non-
hearsay purpose of showing their effect on the listener, and the interests behind Rule 802
did not support the exclusion of this testimony. However, in light of our earlier
conclusion that this evidence bares no indicia of reliability and our conclusion that the
Defendant’s testimony was not critical to the defense, we conclude that the trial court’s
exclusion of this testimony did not deny the Defendant the right to present a defense.
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III. Exclusion of Testimony from the Defendant’s Crime Scene Expert
The Defendant next contends that the trial court abused its discretion by excluding
relevant and material testimony from the Defendant’s crime scene investigation expert,
Ms. Johnson, which would have corroborated the Defendant’s testimony that the victims
were killed by more than one perpetrator. He contends that the trial court failed to apply
the correct legal standard governing the admission of Ms. Johnson’s testimony and that
the trial court’s error was “determinative and highly prejudicial” because it eliminated the
Defendant’s corroborating evidence and “left the prosecution free to repeatedly and
emphatically argue that there was no evidence to corroborate the Defendant’s testimony.”
The State responds that the trial court properly excluded Ms. Johnson’s testimony as
speculative and that, in any event, any error is harmless because Dr. Valdez testified to
the same matters.
At a jury-out voir dire hearing conducted before her testimony, Ms. Johnson
testified that she was a forensic specialist based out of Florida. Ms. Johnson explained
that, as a forensic specialist, she collected and analyzed forensic evidence from crime
scenes and participated in crime scene reconstruction. She explained that, as part of her
work as a crime scene reconstructionist, she would “study a case, take the forensic
evidence from the case and form a hypothesis . . . and then [] test the hypothesis and then
come up with the final conclusion” of what she believed occurred at a crime scene.
When asked if she was able to use forensic facts to determine whether or not a crime was
committed by more than one person, Ms. Johnson stated, “Sometimes that’s possible.
You may have an opinion based upon your training and experience throughout the years.”
Ms. Johnson reviewed her extensive credentials, including her education, training,
and more than thirty years of experience in crime scene analysis. Ms. Johnson explained
that she began her career in 1967 working for the FBI as a fingerprint examiner. She then
worked with the Florida Department of Law Enforcement, where she was trained to
conduct crime scene analysis for the State of Florida. Following her training, Ms.
Johnson worked as a crime scene analyst for ten counties in conjunction with other law
enforcement agencies. Ms. Johnson explained that she started her own forensics training
business where she trained local law enforcement in Florida and other states on
bloodstain pattern analysis and basic and advanced crime scene analysis. She stated that
she also opened her own lab in Pensacola, where she screened evidence for fingerprints,
DNA, gunshot residue, and trace materials. Ms. Johnson stated that she could look at
crime scene photographs and, based upon her education, training, and experience, testify
as to whether a crime scene was properly documented. Ms. Johnson further stated that
she was certified as a “Senior Crime Scene Analyst” by the International Association for
Identification—the oldest and largest forensic association both in the United States and
internationally. She stated that she had conducted bloodstain pattern analysis in
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“[t]housands” of cases. Regarding crime scene reconstruction, Ms. Johnson explained,
“When you first get to a crime scene oftentimes it’s hard to sort out what has happened.
But based upon the documentation, the analysis of the crime scene and the forensic
evidence at the scene, . . . you start to put the pieces together.” She stated that the job of
a crime scene reconstructionist was to “sequence things” at a crime scene and put the
events that occurred at the scene “in order.” She testified that she had trained law
enforcement officers, prosecutors, and defense attorneys on “basic and advanced crime
scene techniques, basic and advanced blood stain pattern analysis” and that she had
previously testified as an expert in crime scene analysis “[n]umerous times.”
Regarding the Defendant’s case, Ms. Johnson testified that she had reviewed and
analyzed the evidence collected by the TBI and the Lake County Sheriff’s Office,
including the photographs, crime scene video, and lab reports, and she stated that she had
independently examined and tested the tangible items of evidence collected. She testified
that she could “look at crime scene photographs based upon [her] education and training
and experience and tell [] if a scene has been properly documented or not.” Additionally,
she reiterated that as a crime scene analysist she could “look at the forensic evidence and
look at the scene and form a hypothesis.” The Defendant tendered Ms. Johnson as an
expert in “the area of crime scene investigation, blood spatter and crime scene analysis,
evidence identification, and concerning the procedures and protocols required [for the
proper collection and examination of evidence].”9
During Ms. Johnson’s subsequent trial testimony before the jury, the following
colloquy occurred:
[DEFENSE COUNSEL]: The State’s scenario is that [the
Defendant] acted alone by himself, attacked the Shells and carried out . . .
these two murders. The defense’s position is that there were four people
that went in the house and attacked the Shells and killed them, killed them
quickly. I want you to assume that those are the two positions. Based upon
your experience, education and expertise in the field of crime scene
reconstruction, analysis and examination and your years of experience,
which, if either, of those scenarios is consistent with what you found?
[THE STATE]: Objection.
THE COURT: Now, wait just a second. Approach the bench.
9
Although the trial court did not specifically state that Ms. Johnson was qualified to give an
expert opinion following the jury-out voir dire, it is apparent from her subsequent testimony before the
jury that the trial court concluded she was qualified to give expert testimony.
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...
THE COURT: You’re far afield, [defense counsel].
[DEFENSE COUNSEL]: I don’t think so.
THE COURT: I think you are.
[THE STATE]: Your Honor --
THE COURT: It’s not in her area of expertise.
[THE STATE]: And she’s testified that she didn’t have enough to do
a reconstruction. She said the evidence wasn’t gathered, Your Honor.
THE COURT: I’m gonna sustain the objection.
During a subsequent jury-out hearing, the Defendant made an offer of proof
regarding Ms. Johnson’s proposed testimony. The following exchange occurred:
[DEFENSE COUNSEL]: Based upon your review of the TBI
evidence that was presented to you, documents in the file, the lab reports,
your own independent testing, your experience, education and expertise and
your analysis of the evidence in this case, I want you to assume two
different scenarios. The first scenario is the State’s position that [the
Defendant] acted alone, went into this house sometime the late evening of
March the 3rd . . . and brutally attacked these two individuals, acted alone.
The second scenario is that four individuals went into the house, three at a
time -- three Mexicans with knives and a 6’1” 279-pound man went in who
also had a knife and that they killed these people with these violent attacks.
Based upon the blood spatter that came from the victims, based upon the
position of the furniture that’s in the house as shown in the photographs,
which of those two scenarios is the most consistent with the evidence
presented?
[MS. JOHNSON]: The one with the three individuals.
[DEFENSE COUNSEL]: Why?
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[MS. JOHNSON]: Because I -- By looking at the scene and all the
evidence that I reviewed, to me this was a more controlling attack versus
someone who’s trying to ward off two individuals.
[DEFENSE COUNSEL]: Okay. Assuming that someone stabbed
Mr. Clarence Shell seven up to nine times, and assuming that they stabbed
Mrs. Shell multiple times, which scenario would be more consistent?
[MS. JOHNSON]: Again, the one with the three individuals. More
controlling.
Ms. Johnson explained that a “controlling attack” meant that “[s]omeone is basically
attacking each person separately at the same time.”
The State cross-examined Ms. Johnson regarding her proffer, and the following
exchange took place:
[THE STATE]: Ms. Johnson, you testified about the failure to
document and record evidence already today, is that correct?
[MS. JOHNSON]: Yes.
[THE STATE]: And that evidence would be necessary for you to
reconstruct the crime scene, is that correct?
[MS. JOHNSON]: The collection of that evidence, yes.
[THE STATE]: Yes, ma’am. And that evidence was not collected?
[MS. JOHNSON]: No.
[THE STATE]: So the opinion you just stated is based on
assumption?
[MS. JOHNSON]: The opinion is based upon the forensic evidence
that I looked at to include the crime scene photographs, the TBI’s
documentation, the evidence that was collected from [the Defendant] and
all the other evidence.
[THE STATE]: Okay.
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[MS. JOHNSON]: That is my opinion.
[THE STATE]: That’s what I’m saying. You’re not able to
reconstruct because the evidence isn’t there?
[MS. JOHNSON]: I may be able to go further with reconstruction as
far as sequencing who was killed first or second based upon the blood
evidence but I can’t go any further than I’ve just stated.
[THE STATE]: And the blood spatter that you saw in the
photograph, without further measurement, further pictures, can you come to
any results from that blood spatter?
[MS. JOHNSON]: No, sir.
[THE STATE]: Okay. And so [your] opinion is based strictly on
the number of wounds that they had and the lack of any signs of struggle?
[MS. JOHNSON]: And also, that obviously there was personal
contact with both individuals because they both had defensive injuries.
[THE STATE]: Thank you.
[MS. JOHNSON]: So that would put the perpetrator up close and
personal versus twenty-five feet away. So I would expect some spatter of
blood . . . on that individual.
....
[THE STATE]: What . . . specifically did you see that would
indicate more than one perpetrator from the evidence?
[MS. JOHNSON]: If it’s a controlling situation there may be no
evidence of that.
[THE STATE]: Okay. So that’s what I’m saying. There is no
evidence of a second perpetrator?
[MS. JOHNSON]: I didn’t see any evidence of a second perpetrator.
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[THE STATE]: Thank you.
[MS. JOHNSON]: With the evidence that was collected and
processed.
At the conclusion of the defense proffer, the trial court commented, without
elaboration or explanation, “I’m even more confident after hearing your offer of proof
[that] I was correct in sustaining the objection.” The trial court further addressed the
issue in its order denying the Defendant’s motion for new trial, stating that Ms. Johnson’s
testimony was excluded because “the evidence that she was prepared to give was
speculative.”
A. Tennessee Rules of Evidence 702 and 703
The admissibility of expert testimony is governed by Tennessee Rules of Evidence
702 and 703. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007); Brown v. Crown
Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005). Rule 702 states, “If scientific,
technical, or other specialized knowledge will substantially assist the trier of fact to
understand the evidence or determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion
or otherwise.” Tenn. R. Evid. 702. Rule 703 provides that
[t]he facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. The court
shall disallow testimony in the form of an opinion or inference if the
underlying facts or data indicate lack of trustworthiness.
Tenn. R. Evid. 703. Our supreme court has further defined the role of the trial court in
assessing the propriety of expert testimony:
Trial courts act as gatekeepers when it comes to the admissibility of expert
testimony. Their role “is to ensure that ‘an expert, whether basing
testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field.’” A court “must assure itself that the
[expert’s] opinions are based on relevant scientific methods, processes, and
data, and not upon an expert’s mere speculation.”
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State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations omitted).
When determining the admissibility of expert testimony, the trial court must first
determine whether the witness is qualified by knowledge, skill, experience, training, or
education to give an opinion within the limits of the witness’s expertise. Scott, 275
S.W.3d at 402; State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002). “The determinative
factor is whether the witness’s qualifications authorize him or her to give an informed
opinion on the subject at issue.” Stevens, 78 S.W.3d at 834. Additionally, trial courts
“must analyze the science and not merely the qualifications [of the expert].” Scott, 275
S.W.3d at 402 (quoting McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn.
1997)) (internal quotation marks omitted). Our supreme court explained in Scott:
Analyzing the science requires the trial court to consider whether the
“basis for the witness’s opinion, i.e., testing, research, studies, or
experience-based observations, adequately supports that expert’s
conclusions” to ensure that there is not a significant analytical gap between
the expert’s opinion and the data upon which the opinion is based. As part
of this analysis, the courts should consider how and why the expert was
able to extrapolate from certain data to the conclusions that he or she has
reached. When assessing the connection between an expert’s conclusions
and the underlying data upon which those conclusions are based, expert
testimony may warrant exclusion where “there is simply too great an
analytical gap between the data and the opinion proffered.”
Id. at 402-03 (internal citations and footnote omitted).
Courts should also consider the methodological and foundational reliability of the
expert’s testimony. Id. at 403. In McDaniel, our supreme court provided the following
non-exhaustive list of factors for a trial court to consider in assessing methodological and
foundational reliability:
(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to
peer review or publication; (3) whether a potential rate of error is known;
(4) whether . . . the evidence is generally accepted in the scientific
community; and (5) whether the expert’s research in the field has been
conducted independent of litigation.
955 S.W.2d at 265; see also Scott, 275 S.W.3d at 403-04. Trial courts need not apply
these factors rigidly. Copeland, 226 S.W.3d at 302. Moreover, because not all expert
testimony will “fit” with these factors, the exact considerations that may be appropriate
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will vary depending upon “the nature of the issue, the witness’s particular expertise, and
the subject of the expert’s testimony.” Brown, 181 S.W.3d at 277.
Our supreme court has acknowledged that not all expert testimony is based on
scientific theory and methodology and that some expert testimony is based on
“nonscientific ‘specialized knowledge,’ that is, the expert’s experience.” Stevens, 78
S.W.3d at 832-33. In determining whether nonscientific expert testimony should be
admitted, trial courts may consider the following:
(1) the McDaniel factors, when they are reasonable measures of the
reliability of expert testimony; (2) the expert’s qualifications for testifying
on the subject at issue; and (3) the straightforward connection between the
expert’s knowledge and the basis for the opinion such that no “analytical
gap” exists between the data and the opinion offered.
Id. at 834-35. A trial court “may make a finding of reliability if the expert’s conclusions
are sufficiently straightforward and supported by a rational explanation which reasonable
[persons] could accept as more correct than not correct.” Id. at 834 (internal quotation
marks omitted).
It is well-established that questions regarding the admissibility, relevancy, and
competency of expert testimony are left to the broad discretion of the trial court. Brown,
181 S.W.3d at 273; State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). “We may not
overturn the trial court’s ruling admitting or excluding expert testimony unless the trial
court abused its discretion.” Brown, 181 S.W.3d at 273; see also McLeod, 937 S.W.2d at
871. A trial court abuses its discretion “when it applies incorrect legal standards, reaches
an illogical conclusion, bases its decision on a clearly erroneous assessment of the
evidence, or employs reasoning that causes an injustice to the complaining party.” Scott,
275 S.W.3d at 404-05 (citing Konvalinka v. Chattanooga-Hamilton County Hosp. Auth.,
249 S.W.3d 346, 358 (Tenn. 2008)).
In disallowing Ms. Johnson’s testimony that it had been a “controlling attack,” in
which the victims were attacked simultaneously by multiple people, the trial court stated
that the testimony was “outside her area of expertise.” However, Ms. Johnson’s
extensive credentials and more than thirty years of work in the field show that she was
highly qualified “by knowledge, skill, experience, training, [and] education” to provide
expert testimony on the subject matters proffered by the defense. Scott, 275 S.W.3d at
402. Additionally, it appears that there was not a significant analytical gap between Ms.
Johnson’s opinion and the data upon which it was based. See id. at 402-03; Stevens, 78
S.W.3d at 834-35. Ms. Johnson testified that she reviewed the crime scene photographs,
the evidence collected from the Defendant, the TBI’s documentation, and the blood
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spatter. She explained that the evidence showed a more “controlling attack,” meaning
that the victims were attacked “separately [and] at the same time,” and thus, the evidence
was more consistent with the scenario proposed by the defense that three individuals
were involved in the murders rather than one. Ms. Johnson testified that this conclusion
was based on the position of the furniture in the residence, the number of stab wounds,
the lack of any signs of a struggle, the defensive wounds found on the victims, and the
proximity of the perpetrator to both victims. Ms. Johnson acknowledged that her
conclusions were limited by the lack of adequate collection and documentation of
evidence by investigators and explained that she was unable to go further in
reconstructing the crime scene “as far as sequencing who was killed first or second based
upon the blood evidence.” As to the methodological and foundational reliability of her
testimony, we note that the State did not object to the reliability of her field of expertise
itself and that testimony about crime scene analysis and reconstruction is routinely
admitted in criminal cases. See e.g., Stevens, 78 S.W.3d at 828, 831; State v. William
Langston, No. W2015-02359-CCA-R3-CD, 2017 WL 1968827, at *5-6 (Tenn. Crim.
App. May 12, 2017), Rule 11 app. filed; State v. Christopher Michael Ferrell, No.
M2015-01011-CCA-R3-CD, 2016 WL 6819784, at *9 (Tenn. Crim. App. Nov. 18,
2016), perm. app. denied (Tenn. Mar. 9, 2017); State v. Pamela Taylor, No. W2012-
02535-CCA-R3-CD, 2014 WL 4922629, at *32, 34 (Tenn. Crim. App. Sept. 30, 2014),
perm. app. denied (Tenn. Jan. 16, 2015); State v. Deon Lamont Cartmell, No. M2012-
01925-CCA-R3-CD, 2014 WL 3056164, at *7, 11 (Tenn. Crim. App. July 7, 2014),
perm. app. denied (Tenn. Nov. 20, 2014); State v. Cyntoia Denise Brown, No. M2007-
00427-CCA-R3-CD, 2009 WL 1038275, at *30 (Tenn. Crim. App. Apr. 20, 2009), perm.
app. denied (Tenn. Sept. 28, 2009). The State points to the trial court’s finding in
denying the Defendant’s motion for new trial that Ms. Johnson’s proffered testimony was
properly excluded because it was “speculative” and argues that because Ms. Johnson
testified that she “didn’t see any evidence of a second perpetrator . . . [w]ith the evidence
that was collected and processed[,]” her conclusions were speculative. However, before
this statement, Ms. Johnson had testified to the facts and evidence that supported her
conclusion that the murders were part of a “controlling attack.”
In this case, Ms. Johnson was qualified to give an expert opinion regarding her
analysis of the crime scene; her opinion that the evidence supported a conclusion that the
victims were attacked simultaneously in a “controlling attack” did not have a significant
analytical gap; the methodology did not provide grounds for exclusion; and her testimony
would have assisted the trier of fact in determining whether the Defendant’s story was
credible. We conclude that the trial court abused its discretion by basing its decision on a
clearly erroneous assessment of the evidence.
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Regarding trial errors, our supreme court has previously stated:
All errors are not the same, nor do they have the same effect on the
judicial process in general or on a particular trial. Accordingly, for the
purpose of the harmless error analysis, this Court has recognized three
categories of error—structural constitutional error, non-structural
constitutional error, and non-constitutional error. State v. Powers, 101
S.W.3d 383, 397 (Tenn. 2003); State v. Garrison, 40 S.W.3d 426, 433-34
(Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999). The
distinctions between these categories of error are more than academic
because they define the standards that the appellate courts use to determine
whether each category of error can be harmless.
Rodriguez, 254 S.W.3d at 371. Structural constitutional error requires automatic reversal.
Id. (citing Cottingham v. Cottingham, 193 S.W.3d 531, 537 (Tenn. 2006); State v. Scott,
33 S.W.3d 746, 755 n. 6 (Tenn. 2000)). Non-structural constitutional error does not
require automatic reversal but shifts the burden to the State to prove beyond a reasonable
doubt that the error is harmless. Id. at 371-72 (citing State v. Allen, 69 S.W.3d 181, 190
(Tenn. 2002); State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006)). Non-constitutional error
places the burden on the Defendant to prove “that the error more probably than not
affected the judgment or would result in prejudice to the judicial process.” Id. at 372.
The State asserts that any error in the exclusion of Ms. Johnson’s testimony was
harmless based on the testimony of Dr. Valdez. We disagree. Although Dr. Valdez
testified that, in his estimation, “a single person could not have committed the murders,”
Dr. Valdez was not an expert in forensic crime scene analysis. He testified as an expert
in gangs. We agree with the Defendant that Ms. Johnson’s proffered testimony was
significant because it would have corroborated the Defendant’s testimony that the
murders were committed by multiple perpetrators and rebutted the State’s theory that the
Defendant acted alone. Without Ms. Johnson’s expert testimony, the Defendant’s
testimony was largely uncorroborated by other proof. Accordingly, we believe that the
error resulted in prejudice to the judicial process, and the trial court’s error cannot be
considered harmless. The Defendant is entitled to a new trial.
B. Right to Present a Defense
In his brief, the Defendant also asserts that he has a constitutional right to offer the
testimony of witnesses and that his right to present a defense was implicated by the trial
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court’s exclusion of Ms. Johnson’s expert testimony.10 As previously discussed,
“[e]xclusions of evidence may violate the Due Process Clause of the Fourteenth
Amendment of the United States Constitution even if the exclusions comply with rules of
evidence.” Flood, 219 S.W.3d at 315-19. “Principles of due process require that a
defendant in a criminal trial have the right to present a defense and to offer testimony.”
Id. (citing Chambers, 410 U.S. at 294); Brown, 29 S.W.3d at 431. In order to determine
whether the exclusion of this evidence rises to the level of a constitutional violation, we
consider whether: (1) the excluded evidence is critical to the defense; (2) the evidence
bears sufficient indicia of reliability; and (3) the interest supporting exclusion of the
evidence is substantially important. Brown, 29 S.W.3d at 433-34 (citing Chambers, 410
U.S. at 298-301).
Applying this test to the facts of this case, we agree with the Defendant that Ms.
Johnson’s proffered testimony would have corroborated the Defendant’s testimony that
the murders were committed by multiple perpetrators and rebutted the State’s theory that
the Defendant alone killed the victims. During closing arguments, the State argued
repeatedly that there was no evidence to corroborate the Defendant’s version of events.
For example, the State argued:
And there’s no forensic or physical evidence of any kind that points to
anyone else other than the [D]efendant.
....
Every piece of physical evidence, tangible evidence, [and] testimony other
than the [D]efendant’s own testimony points to him and him only.
....
[I]n order for you to conclude that anyone else was involved in this you
have to believe the [D]efendant. And you heard his testimony and . . . it’s
just not believable.
...
10
We note that the Defendant’s assertion is contained in one sentence of his brief, and the brief
contains no analysis of this issue. As such, the issue is dangerously close to being considered waived by
the court. See Tenn. R. Ct. Crim. App. 10(b); see also Tenn. R. App. P. 27(a)(7)(A). Due to the nature of
the case and the gravity of the Defendant’s convictions, however, we will review the issue in the interest
of justice.
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And the reason I’m telling you [that] you can’t believe his story is where is
there any corroboration or proof that what he’s telling you is the truth?
Where is there any proof that there’s these other three gang members there?
That [Mr.] Hill’s there?
...
Did [the Defendant’s experts] give you one thing to substantiate [the
Defendant’s] story after four years? Not a word.
...
Did they bring in one witness that substantiates [the Defendant’s] story?
No.
Establishing corroboration of the Defendant’s story was clearly critical to his
defense. The Defendant was charged with first-degree murder in the deaths of two
victims, and the State was seeking the death penalty. The trial court allowed Agent
Bishop to testify for the State that he did not see any indication of a violent struggle
between multiple people. Ms. Johnson’s proffered testimony that the crime scene was
consistent with the Defendant’s claim that there were multiple perpetrators was a
significant part of the otherwise slim evidence corroborating the Defendant’s testimony
about the murders. Therefore, the proof sought to be introduced in this case was
substantially critical to the defense. Additionally, Ms. Johnson’s proffered testimony
contains sufficient indicia of reliability. As previously explained, Ms. Johnson was
highly credentialed and had over thirty years’ experience in her area of expertise, and she
provided a reasonable explanation for the basis of her opinion. Dr. Valdez’s testimony
that it was an “overwhelming attack” supported Ms. Johnson’s proffered testimony, and
the lack of blood on the Defendant’s overalls, jeans, boots, and hat and inside his car
supported her conclusion that the evidence was more consistent with the defense theory.
Thus, it appears that Ms. Johnson’s testimony was reliable. Finally, because we have
determined that the trial court erred in excluding Ms. Johnson’s testimony under Rules
702 and 703, the interest supporting exclusion is clearly not sufficient to prohibit the
presentation of her testimony as part of the defense.
As explained previously, although Dr. Valdez opined that “a single person could
not have committed the murders[,]” he was not an expert in forensic crime scene
analysis; he testified as an expert in gangs. Ms. Johnson’s proffered testimony would
have corroborated the Defendant’s story that the murders were committed by multiple
perpetrators and rebutted the State’s theory that the Defendant acted alone. Without Ms.
Johnson’s expert testimony, the Defendant’s testimony was largely uncorroborated by
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other proof. For these reasons, we conclude that the Defendant’s constitutional right to
present a defense was violated by the trial court’s exclusion of Ms. Johnson’s proffered
testimony and that the State has not established that the error was harmless beyond a
reasonable doubt. See Rodriguez, 254 S.W.3d at 372. Accordingly, the Defendant is also
entitled to a new trial on this basis.
IV. Prosecutorial Misconduct
The Defendant argues that he is entitled to a new trial because of prosecutorial
misconduct. Specifically, he contends that prosecutors: (1) improperly interfered with a
defense expert witness, causing the expert witness to withdraw; (2) misused a
confidential offer of settlement to prepare Mr. Hill’s testimony; (3) withheld exculpatory
evidence consisting of Mr. Hill’s statements and Agent Carter’s report; and (4) made
numerous improper statements during rebuttal closing argument. The State responds that
the Defendant’s claims are meritless and that he has failed to establish prosecutorial
misconduct warranting a new trial.
A. Improper Interference with a Defense Expert Witness
During a jury-out hearing at trial, the following exchange occurred regarding a
designated defense expert witness, Lieutenant Anthony Carter of the Memphis Police
Department:
[DEFENSE COUNSEL]: Your Honor, I am -- regret having to bring
this up, but something has happened with regard to one of our fact
witnesses and our expert witnesses, that I think impacts this trial and
impacts [the Defendant’s] right to a fair trial with due process. We had,
and have had since well before this affidavit was filed in -- obtained in
September of 2013. And it was provided to -- I believe we provided it to
the general and his office with a disclosure, well, at least the substance of it,
anyway.
....
[DEFENSE COUNSEL]: Okay. We contacted several law
enforcement people to learn if there were gangs operating in this area. We
learned that there were. Virtually every county except Lake County has
acknowledged that they were and are. [Lieutenant] Carter is a 28-year
veteran African-American, was contacted, he agreed, yes, they are here, and
he agreed to testify about their activities and their modus operandi. We
disclosed [Lieutenant] Carter, and it’s my understanding, from what we
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have been informed by [Lieutenant] Carter and people who work with him,
that he had obtained permission from his director, to participate as a fact
witness, not as a law enforcement officer, but as a fact witness and as an
expert. It is my understanding that the Assistant District Attorney General
Lance Webb contacted the higher-ups in the drug task force and asked
them, [“]What in the world is he doing?[”] As a result of that, . . . Michael
Hardy came down on [Lieutenant] Carter and said, [“]It’s probably best you
don’t do this.[”] So [Lieutenant] Carter is now not going to testify because
of that pressure.
[GENERAL] BIVENS: Your Honor, if I could clarify the record.
Mr. Webb didn’t contact anybody. When I got the CV on [Lieutenant]
Carter and saw that he was an active officer with the Memphis Police
Department, I contacted District Attorney Amy Weirich in Memphis and
asked General Weirich if she was aware of [Lieutenant] Carter, and that he
was shown as an expert witness for the defense in this case. She said, “I
know him. That’s unusual. He is no longer with the task force, has not
been on the task force for some time.” She said, “I’ll find out what’s going
on.” She contacted MPD and simply asked, you know, what he was doing
testifying as a defense expert in the case. I think I even have the email back
from her, that she forwarded me, that she had received from the deputy
chief down there. The deputy chief said that he found out that [Lieutenant]
Carter was working a secondary job with a private investigative firm in
Memphis, that [defense counsel’s] office had contacted, and that he was
doing this as his secondary job. There was nothing in those emails about
any action being taken against him, anything like that. I did contact . . . the
head of that task force that he had been formerly on and asked him about
rebuttal witnesses, and he gave me some names, and we have talked to
those people. The other thing, Your Honor, I would point out is, the only
thing we received, that said in that email, is he had been asked about gang
activity in Tipton County, is what Investigator Clark told the people that
had spoken to him. We’ve not taken any action to try to have him
disciplined in any manner or prevent him from testifying, Your Honor.
[DEFENSE COUNSEL]: There is pressure placed without threats.
There’s --
THE COURT: What is it that you’re suggesting, [defense counsel]?
[DEFENSE COUNSEL]: Your Honor, I suggest that we have a
mistrial. But I’m reluctant to -- when -- when the State there is no conflict
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between a fact witness who testifies, who happens to work for the State,
and the State -- the State has an obligation not just to prosecute. The State
has an obligation to find the truth. And when the State puts pressure
directly or indirectly on a witness in a case, it deprives the defense [of] due
process.
[GENERAL] BIVENS: Again, Your Honor, all we did was inquire
about his background, that he was shown as an officer now on the police
department -- Memphis Police Department. We inquired of District
Attorney Weirich as to what his background was, was he still on the task
force, was he still employed with the Memphis PD. We took no other
action. And the only action she took, Your Honor, was to inquire with the
deputy chief were they aware that he was testifying. And . . . their reply
was, yes, he has a secondary job with Hogan -- I can’t remember the name
of the private investigator that is employed by [defense counsel’s] firm in
this case.
THE COURT: [Defense counsel], if he refuses to testify, you’ll just
have to find somebody else.
The Defendant then filed as an exhibit to the record an affidavit previously
prepared by Lieutenant Carter. The affidavit read, in pertinent part:
1. My name is Anthony Carter. I am currently serving as a lieutenant
for the Memphis Police Department in Memphis, Shelby County,
Tennessee. I have been a law enforcement officer in West Tennessee for
28 years. I have been active in gang investigations throughout my entire
career, including several homicide investigations, and am currently the
Assistant Commander for the Multi-Agency Gang Unit for West
Tennessee. I have extensive training and education in the recognition of
and activities of gangs who are often involved in violent criminal activities,
including robbery, homicides, and random acts of gang violence. In my
training, education, and experience as a law enforcement officer, I have
studied the behaviors, activities, operations, rivalries, insignia, colors, and
emblems of various gangs.
2. The Law Office of J. Houston Gordon, counsel for [the Defendant],
requested that I review crime scene photographs, evidentiary photographs,
autopsy reports, and autopsy photographs from the homicides of Clarence
and Sue Shell in Lake County, Tennessee. In reviewing the photographs
taken by law enforcement at the crime scene on March 4, 2011 and later
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provided to [d]efense counsel, I saw two specific photographs of two pieces
of torn blue plaid fabric lying on the ground. The fabric pieces were on top
of the grass and leaves despite the recent rain, indicating that the fabric had
been placed or dropped in the yard within a very short time of when the
photographs were taken. The photographs of the fabric pieces, both out of
place and seemingly fresh, were of particular interest to me, because of the
design and colors of the fabric and the appearance of possible stains and/or
matter on or around the fabric.
3. Based upon my education, training and years of experience, the
fabric shown in the photographs taken at the scene is consistent with the
colors, patterns and type of material displayed and at times worn by the
predominantly Mexican gang, the Surenos. The Surenos, based on my
training and experience, were active in West Tennessee in 2011.
4. I have reviewed the photographs and diagrams showing the nature,
location, and severity of the wounds to Clarence and Sue Shell in the two
autopsy reports and autopsy photographs, both Clarence and Sue Shell
appeared to suffer multiple lacerations and puncture wounds, including
slicing wounds across both victims’ necks. In both murders, the perpetrator
would have to have been in close, direct contact with the victim. The
perpetrator(s) clearly targeted the neck region on both victims, transecting
the carotid artery of both Clarence and Sue Shell with the slicing wounds.
5. Based upon my education, training, experience and my review of the
photographs and reports regarding the murders of Clarence and Sue Shell,
both the types of injuries and wounds sustained by the victims and the
brutality of the crime are consistent with similar crimes carried out by
Mexican gangs, such as the Surenos and Mexican Mafia, as well as the
Mexican cartels, such as Los Zetas. These Mexican gangs and cartels
frequently have enforcers and/or assassins commit these type of brutal
slayings in an effort to “send a message” to someone who has crossed them
in any way, including cheating the gang/cartel in a crime related business
transaction. It is also not unusual for a gang member to call on another
gang member from outside his area to carry out “hits” on designated
victims in order to keep the requesting gang/gang member from being
implicated.
During the hearing on the Defendant’s motion for new trial, Amy Weirich testified
that she was the District Attorney General for Shelby County, Tennessee. General
Weirich stated that she received a phone call from one of the prosecutors in the
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Defendant’s case, General Bivens, concerning an officer with the Memphis Police
Department, Lieutenant Anthony Carter. Regarding the phone call, General Weirich
testified:
As best I can recall, General Bivens called to let me know that there
had been an officer with the Memphis Police Department who had been --
who was going to potentially testify for the defense in a murder case. And
General Bivens was calling to find out if I knew who this officer was and if
I knew any officers that might be willing to also come and testify in rebuttal
for the State.
General Weirich testified that, at the time she received the phone call from
General Bivens, Lieutenant Carter was a member of a multi-agency gang unit which
focused on gang enforcement and suppression. General Weirich stated that she was
chairman of the board of the multi-agency gang unit. As a result of her conversation with
General Bivens, General Weirich called Director Tony Armstrong of the Memphis Police
Department. She explained that she called Director Armstrong to “give him a heads-up”
about Lieutenant Carter’s testifying for the defense.
On cross-examination, General Weirich stated that during her conversation with
General Bivens about Lieutenant Carter she said, “I know him, that’s unusual.” She
explained that it was “[u]nusual that he would be testifying on behalf of the defense as an
expert in the area of gangs, unusual that he would be testifying in a court other than [in]
Shelby County, just, the circumstances were unusual.” She told General Bivens that she
would “find out what’s going on,” and then she contacted Director Armstrong.
Lieutenant Anthony Carter of the Memphis Police Department testified that he had
worked for the police department for thirty-one years and had investigated gang-related
crime since 1991. Lieutenant Carter stated that he reviewed the crime scene photographs
at the request of defense counsel. Lieutenant Carter explained that, at the time he was
contacted by the defense, he also worked for a private investigator at Haney &
Associates. He recalled that he was scheduled to come and testify on behalf of the
Defendant, but he was approached by one of his commanders “who thought it would be a
conflict of interest for [Lieutenant Carter] to come and testify in this particular case.” He
stated that the commander did not say that he could not come to court but “strongly
intimated that [he] probably shouldn’t do it.” Lieutenant Carter testified:
Well, what he told -- came to me and said was that he had been
contacted -- he didn’t say who contacted him, but he had been contacted in
regards to me coming and testifying. And my immediate supervisor first
approached me, and then my chief had a conversation with me. And I just
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felt like, because I’ve been in this department for [thirty] years at the time,
that I didn’t want to have any conflicts. I haven’t had any problems, I
didn’t want to have any now. So it just -- just took the steam out of me
even wanting to get involved.
He stated that, but for the pressure put on him, he would have testified at trial.
On cross-examination, Lieutenant Carter agreed that his commander did not tell
him that he could not testify but stated that it was a conflict of interest. The chief also
told him that it would be a conflict of interest. Lieutenant Carter stated that, but for the
conversation with the chief, he would have testified at the Defendant’s trial. He then
identified an affidavit he prepared after his review of the case, which summarized what
his expert testimony would have been if called as a witness by the Defendant.
In denying the Defendant’s motion for new trial, the trial court found that there
was “no basis for [the Defendant’s] claim that the State interfered with Lieutenant Carter
testifying in this case.” The court concluded that the evidence “merely show[ed] that
District Attorney Bivens contacted District Attorney Weirich only about a possible
rebuttal witness.”
On appeal, the Defendant asserts that the prosecutor, acting through the Shelby
County District Attorney General, caused a designated defense expert witness, Lieutenant
Carter, to withdraw from testifying on the Defendant’s behalf. The State responds that
the prosecutor’s office did not improperly interfere with the Defendant’s expert witness.
A defendant’s right to present his own witnesses to establish a defense constitutes
a fundamental element of due process and is protected by the Compulsory Process Clause
of the Sixth Amendment. Washington, 388 U.S. at 19. “. . . Washington v. Texas clearly
established that, under the Sixth Amendment, a state may not arbitrarily deny a defendant
the right to call a witness whose testimony is relevant and material to the defense.” Davis
v. Straub, 430 F.3d 281, 290 (6th Cir. 2005) (citing Washington, 388 U.S. at 23).
Government conduct that rises to the level of “substantial interference” with a witness’s
“free and unhampered determination to testify” violates this right. United States v.
Foster, 128 F.3d 949, 953 (6th Cir. 1997); see, e.g., Webb v. Texas, 409 U.S. 95, 98
(1972) (per curiam) (reversing the defendant’s conviction when the trial court severely
admonished the sole witness proffered by the defense who declined to testify as a result);
United States v. Thomas, 488 F.2d 334, 336 (6th Cir. 1973) (reversing a conviction
obtained after a Secret Service agent, in an ex parte communication, advised a defense
witness of possible prosecution if he testified). Even when such interference occurs,
however, a violation of a defendant’s right to call witnesses in his defense is subject to
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harmless error analysis. United States v. Emuegbunam, 268 F.3d 377, 400 (6th Cir.
2001); Foster, 128 F.3d at 953 & n. 4.
In this case, after the prosecutor learned that Lieutenant Carter intended to testify
on the Defendant’s behalf, he called the prosecutor in Shelby County who, in turn, called
Lieutenant Carter’s supervisors to ask “what [Lieutenant Carter] was doing testifying as a
defense expert in the case.” Lieutenant Carter was then approached by both his
commander and the chief of police, who informed him that it would be a “conflict of
interest” for him to testify for the Defendant, and Lieutenant Carter’s commander
“strongly intimated that [he] probably shouldn’t do it.” Lieutenant Carter said that, based
on these conversations, he was no longer willing to testify. He explained that he had
been with the police department for thirty years and stated, “I haven’t had any problems,
I didn’t want to have any now.” Based on Lieutenant Carter’s affidavit and testimony, it
is clear that his proposed testimony was relevant and material to the defense. Moreover,
it appears that the words used by Lieutenant Carter’s superiors “could well have exerted
such duress on the witness’[s] mind as to preclude him from making a free and voluntary
choice whether or not to testify.” Davis, 430 F.3d at 287 (quoting Webb, 409 U.S. at 98)
(internal quotation marks omitted). Moreover, we can discern no valid reason for the
Shelby County prosecutor’s inquiring into “what [Lieutenant Carter] was doing testifying
as a defense expert in the case,” nor can we see how Lieutenant Carter’s testimony was a
conflict of interest as the Memphis Police Department had no part in the investigation
into the victims’ murders. Under these facts, we conclude that the government actors’
conduct substantially interfered with Lieutenant Carter’s prior determination to testify, in
violation of the Defendant’s constitutional right to present his own witnesses to establish
a defense.
Our inquiry does not end here, however. As previously stated, a violation of a
defendant’s right to call witnesses in his defense is subject to harmless error analysis.
Emuegbunam, 268 F.3d at 400. Lieutenant Carter was being offered as an expert witness
to testify about Mexican gang activity in West Tennessee and about how aspects of the
murders were consistent with the modus operandi of these gangs. During trial, the
Defendant presented a gang expert, Dr. Valdez, who testified to the same matters. The
Defendant has not explained how Lieutenant Carter’s testimony would not have been
cumulative to that of Dr. Valdez. Accordingly, we conclude that the interference in this
case was harmless beyond a reasonable doubt.
B. Misuse of a Confidential Offer of Settlement
The Defendant also contends that prosecutors improperly provided the
Defendant’s confidential offer of settlement to TBI agents who then revealed information
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in the offer during an interview with Mr. Hill.11 The trial court addressed this claim as
follows:
Next, the [D]efendant raises [as] error a claim that the prosecution
improperly disclosed the contents of [the D]efendant’s confidential offer of
settlement . . . . The [D]efendant claims that witness, Shondell Hill,
therefore, changed his testimony. There is no evidence in the record to
indicate that [Mr.] Hill was advised of any confidential offer from the
defendant to the State.
...
Agent Bishop testified that he never read any proffer letter although
he was told there was one. He knew the gist of the letter. He did not visit
with [Mr.] Hill. He testified that Mr. Van Hoosier of the T.B.I. directed the
Lake County officers to see [Mr.] Hill. He did not know anything that they
discussed. There was no evidence from either Mr. Hill or any other witness
that any confidential offer settlement was discussed with [Mr.] Hill. The
Court notes that [Mr.] Hill was a defense witness. The Court does not
know the contents of the confidential offer. There is nothing to suggest that
[Mr.] Hill was to receive any benefit from testifying or not testifying. The
Court does not see how any such information could have caused [Mr. Hill]
to change his testimony, if, in fact, he did change any testimony. The Court
does not find any prosecutorial misconduct on the part of the State.
The record supports the trial court’s findings in this regard. At the motion for new
trial hearing, Agent Bishop testified that he knew only the “gist” of the Defendant’s
proposed settlement offer. He stated that he never read the settlement offer, he did not
interview Mr. Hill about the offer, and he did not know what was said by Lake County
investigators during their interview with Mr. Hill. Moreover, a copy of the confidential
offer of settlement does not appear in the record, making it impossible to determine
whether Mr. Hill had been made aware of the information contained in the offer based on
his trial testimony. The Defendant failed to establish that prosecutors divulged the
contents of the confidential proposed settlement offer or that investigators in any way
discussed the contents of the offer with Mr. Hill.12 Thus, he has not proven his claim of
11
It is unclear from the record what was contained in this offer of settlement. As noted below,
the offer was not introduced into evidence at trial.
12
We also note that the Defendant failed to cite to any applicable case law in support of his
argument in his brief.
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prosecutorial misconduct in the handling of the confidential settlement offer. He is not
entitled to relief on this ground.
C. Withholding of Exculpatory Evidence
The Defendant also contends that prosecutors withheld exculpatory evidence in
the form of a written report, containing statements made by Mr. Hill during an interview
with TBI Special Agent Joshua Carter in June 2014. The Defendant contends that Mr.
Hill’s trial testimony could have been impeached, and the Defendant’s corroborated,
through the testimony of Agent Carter. However, Agent Carter was not identified as a
witness because his report was not produced by the State before trial.13 The State
responds that the Defendant has failed to establish a Brady violation.
In Brady v. Maryland, the United States Supreme Court held that “suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). In order to establish a
Brady violation, four prerequisites must be met:
1. The defendant must have requested the information (unless the evidence
is obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “The prosecution is not required to
disclose information that the accused already possesses or is able to obtain . . . or
information which is not possessed by or under the control of the prosecution or another
governmental agency.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)
(citing State v. Caldwell, 656 S.W.2d 864, 897 (Tenn. Crim. App. 1983) and Banks v.
State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). The defendant must prove, by a
13
Although it is not entirely clear, it appears from the record that, following the motion for new
trial hearing, General Webb contacted Agent Carter to inquire whether a report had been made following
the TBI’s second interview with Mr. Hill. On April 7, 2016, Agent Carter sent General Webb an undated
written report, which contained Agent Carter’s “recollection of an oral interview he conducted with [Mr.]
Hill on June 19, 2014.” General Webb then turned over Agent Carter’s report to the Defendant.
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preponderance of the evidence, that a Brady violation has occurred. Edgin, 902 S.W.2d
at 389.
In order to establish a Brady violation, the evidence need not be admissible; it only
needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn.
Crim. App. 1993). Favorable evidence includes evidence that “provides some significant
aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story,
calls into question a material, although not indispensible, element of the prosecution’s
version of events, or challenges the credibility of a key prosecution witness.” Johnson v.
State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (internal quotation marks omitted). Evidence is
material under Brady “only if there is a reasonably probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985) (citing Strickland v. Washington, 466
U.S. 668, 694 (1984)). A “reasonable probability” is “a probability sufficient to
undermine the confidence in the outcome.” Id. (internal quotation marks omitted).
Here, the record establishes that the Defendant requested the information at issue,
and the trial court ordered the State to turn over all such reports by law enforcement.
Further, the State does not dispute that it failed to provide Agent Carter’s report to the
defense until after trial. The evidence appears favorable to the Defendant as it would
have identified Agent Carter as a witness and potentially assisted the Defendant in his
attempts to impeach Mr. Hill’s testimony.
As previously noted, however, to make out a Brady claim the Defendant must also
show that “there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. The Defendant
argues that Agent Carter’s report contained numerous “patently false statement[s]” made
by Mr. Hill to Agent Carter and asserts that he could have impeached Mr. Hill with these
false statements at trial. Mr. Hill’s trial testimony was generally consistent with his
statement to Agent Carter; however, the Defendant contends that the following
statements made by Mr. Hill to Agent Carter were false: that, on March 4, 2011, he had
multiple missed phone calls from the Defendant around 4:00 a.m.; that he received a text
message from the Defendant at 6:30 a.m., in which the Defendant asked Mr. Hill to call
him; and that he called the Defendant early that same morning.
In addressing this issue, the trial court found that the issues raised from the report
were covered in the Defendant’s cross-examination of Mr. Hill, and we agree. A review
of the record shows that the Defendant cross-examined Mr. Hill in detail about the
number and timing of the phone calls and texts between Mr. Hill and the Defendant,
using the stipulated phone records. For example, Mr. Hill acknowledged during cross-
examination that his phone records did not show that the Defendant called him five or six
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times on the morning of March 4. The Defendant had access to the stipulated phone
records and used those to impeach Mr. Hill’s testimony. Thus, we cannot conclude that
the result of the proceeding would have been different had the State turned over Agent
Carter’s report. The Defendant is not entitled to relief on this ground.
D. Improper Statements During Rebuttal Closing Argument
The Defendant alleges multiple instances of prosecutorial misconduct based on
statements made by General Bivens during rebuttal closing argument. The Defendant
contends that General Bivens: (1) made improper and repeated attacks on defense
counsel; (2) improperly shifted the burden of proof; (3) misstated evidence; and (4)
mocked and ridiculed the Defendant. The State responds that the Defendant waived the
issue by failing to raise a contemporaneous objection and that the Defendant has failed to
establish plain error based on General Bivens’ statements.
The trial court has wide discretion in controlling the course of arguments and will
not be reversed absent an abuse of discretion. Terry v. State, 46 S.W.3d 147, 156 (Tenn.
2001). Closing argument by a prosecutor “is a valuable privilege that should not be
unduly restricted.” State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). That said,
Tennessee courts have recognized numerous prosecutorial arguments as improper. It is
improper for a prosecutor to engage in derogatory remarks, appeal to the prejudice of the
jury, misstate the evidence, or make arguments not reasonably based on the evidence.
State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008). Additionally, a prosecutor’s argument
should not “reflect unfavorably upon defense counsel or the trial tactics employed during
the course of the trial.” State v. Hill, 333 S.W.3d 106, 131 (Tenn. Crim. App. 2010).
In State v. Goltz, 111 S.W.3d 1 (Tenn. Crim. App. 2003), this court listed “five
general areas of prosecutorial misconduct” that can arise during closing argument:
(1) intentionally misleading or misstating the evidence;
(2) expressing a personal belief or opinion as to the truth or falsity of the
evidence or defendant’s guilt;
(3) making statements calculated to inflame the passions or prejudices of
the jury;
(4) injecting broader issues than the guilt or innocence of the accused; and
(5) intentionally referring to or arguing facts outside the record that are not
matters of common public knowledge.
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Goltz, 111 S.W.3d at 6.
“In determining whether statements made in closing argument constitute
reversible error, it is necessary to determine whether the statements were improper and, if
so, whether the impropriety affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367
(Tenn. Crim. App. 1996). In Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976),
this court listed the following factors to be considered when determining whether the
improper conduct of a prosecutor affected the verdict to the prejudice of the defendant:
(1) the conduct complained of viewed in context and in light of the facts and
circumstances of the case; (2) the curative measures undertaken by the court and the
prosecution; (3) the intent of the prosecutor in making the improper statement; (4) the
cumulative effect of the improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case. Id. at 344.
As noted by the State, the Defendant failed to make any contemporaneous
objections to General Bivens’ rebuttal closing argument. The failure to make a
contemporaneous objection constitutes waiver of an issue on appeal. State v. Gilley, 297
S.W.3d 739, 762 (Tenn. Crim. App. 2008); see also Tenn. R. App. P. 36(a) (stating that
“[n]othing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error[]”).
However, “[w]hen necessary to do substantial justice,” this court may “consider an
error that has affected the substantial rights of a party” even if the issue was waived.
Tenn. R. App. P. 36(b). Such issues are reviewed under plain error analysis. State v.
Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). In State v. Adkisson, 899 S.W.2d 626
(Tenn. Crim. App. 1994), this court listed five factors to be applied to determine when
alleged trial error constitutes “plain error”:
a) the record must clearly establish what occurred at trial;
b) a clear and unequivocal rule of law must have been breached;
c) a substantial right of the accused must have been adversely affected;
d) the accused did not waive the issue for tactical reasons; and
e) consideration of the error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 641-42.
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In State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000), our supreme court
“formally” adopted this analysis, stating that “the Adkisson test provides a clear and
meaningful standard for considering whether a trial error rises to the level of plain error
in the absence of an objection[.]” In order to be entitled to plain error relief, all five
factors must be established, and “complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established.” Smith, 24 S.W.3d at 283. Further, “‘the plain error must [have been] of
such a great magnitude that it probably changed the outcome of the trial.’” Id. (quoting
Adkisson, 899 S.W.2d at 642). The Defendant bears the burden of persuading the
appellate court that the trial court committed plain error. State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007).
1. Improper attacks on defense counsel
During his rebuttal closing, General Bivens stated, “Ladies and gentlemen, four
years later [defense counsel] and his staff and [the Defendant] come up with this great
story about how he was forced to do all this by a gang.” The Defendant asserts that
General Bivens’ comment was an improper attack upon defense counsel and constituted
plain error. The State responds that defense counsel injected the quality of his own
investigation into his closing argument and that General Bivens’ remarks “highlighted
that [the Defendant’s] trial testimony was a recent and previously unrevealed version of
events carefully calculated to fit the facts that defense counsel had unearthed.”
In its review of this issue, the trial court stated:
The Court finds that [General] Bivens did state in his rebuttal
argument, “four years later [defense counsel] and his staff and [the
Defendant] come up with this great story about how he was forced to do all
this by a gang.” The State claims that this response was an invited
response. It is improper to accuse defense counsel and his staff of
developing the story of the [D]efendant. The Court, however, in light of
the defense presented, finds that the response was an invited response. The
statement was an isolated statement by [General Bivens] and the evidence
of guilt was very strong. The Court also instructed the jury that any
statement of counsel was not to be considered as evidence and further that
the jury was to disregard any statement of counsel which it found not to be
part of the evidence introduced at the trial.
We agree with the trial court that it was improper for General Bivens to accuse
defense counsel and his staff of coming up with the Defendant’s story. However, when
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viewed in the context of the facts of the case, we conclude that the improper conduct did
not affect the verdict to the prejudice of the Defendant. The comment was an isolated
one, and defense counsel did not object or mention the comment in his motion for
mistrial made after General Bivens’ rebuttal closing argument. Here, the record does not
establish either that “the accused did not waive the issue for tactical reasons” or that
“consideration of the error is ‘necessary to do substantial justice.’” See Smith, 24 S.W.3d
at 282. Accordingly, we cannot say that the prosecutor’s argument, even if improper,
rises to the level of “plain error.”
2. Improper shifting of the burden of proof
The Defendant also contends that General Bivens improperly shifted the burden of
proof when he repeatedly argued to the jury that there was no corroboration to the
Defendant’s story that he acted under duress. He asserts that the comments “clearly
[misled] the jury as to the burden of proof as to the defense of duress.” The State
responds that General Bivens was questioning the credibility of the Defendant’s story and
that he was not required to explain to the jury the burden of proof. We agree with the
State. Moreover, the trial court instructed the jury on the State’s general burden of proof
of beyond a reasonable doubt in a criminal case and additionally instructed that the State
had the burden to establish beyond a reasonable doubt that the Defendant was not acting
under duress. Accordingly, General Bivens’ comments do not constitute plain error.
3. Misstating evidence
The Defendant asserts that General Bivens misstated the evidence when he argued
that: (a) the Defendant told investigators “I must have used a knife. The knife is in my
car. I stabbed them[]”; (b) Ms. Nugent saw a “goldish” car with “Texas plates but . . .
never saw anybody at the car”; (c) the Hispanic man approached Mr. Eddlemon looking
for the Defendant “[t]hree or four days before this murder”; (d) Mr. Reynolds and Ms.
Jones saw the Defendant withdrawing money from the ATM “at about 9 or 9:30” the
night of March 3; (e) Ms. Hinson’s and Mr. Corum’s testimony conflicted as to whom the
Defendant dropped off first on March 3; (f) Dr. Valdez testified that “in Mexico the
cartels will attack the families to send a message but not so much in the states because of
law enforcement. It’s common in Mexico but not in the states[]”; (g) Dr. Valdez testified
that Mr. Hernandez was a “low ranking gang member”; and (h) Trooper Sipes stated that
the “big drug grow over in Obion County had absolutely no connections with Lake
County.” The State responds that General Bivens did not intentionally misstate evidence
and that the Defendant is not entitled to relief under plain error analysis.
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Regarding this issue, the trial court found:
In his statement to the [TBI], the [D]efendant stated, “it had to have been
the knife I used,” although [General Bivens] misstated, “I stabbed them, the
knife is in my car,” it is not . . . an intentional misstatement. The Court
notes that there are several transcripts of testimony. This trial lasted three
weeks. The same would be true about other misstatements made by the
State as set out above. Any such misstatements are isolated and do not
appear to be intentional and many of them are not total misstatements of the
facts. Again, . . . General Bivens was arguing a case that had lasted for
three weeks with multiple transcripts of evidence. The jury also was
specifically directed that no statements by either attorney should be
considered as evidence and that they were to disregard any argument made
by the attorneys which the jury did not find was supported by the evidence.
The Court also notes that the evidence of [the D]efendant’s guilt was
overwhelming. The Court does not find that the [D]efendant was deprived
of a fundamentally fair trial by any alleged misstatement.
Upon review, we agree with the trial court’s assessment of this issue. Although
there may be some discrepancies between the evidence and General Bivens’ rebuttal
closing argument, it does not appear that the discrepancies were intentional on General
Bivens’ part, and the discrepancies were not so egregious that they drew an objection
from the Defendant. As noted by the trial court, some of the alleged misstatements “are
not total misstatements of fact.” For example, although Dr. Valdez did not say that Mr.
Hernandez was a “low ranking gang member,” he did state that Mr. Hernandez had a
“lower raking position” in the Mexikanemi. In any event, the trial court plainly
instructed the jury that argument of counsel was not evidence and that it should disregard
comments not supported by the evidence. Under these circumstances, the Defendant has
not established plain error.
4. Mocking the Defendant
Additionally, the Defendant contends that General Bivens improperly mocked and
ridiculed him during rebuttal closing argument, accusing the Defendant of “dramatics”
and “acting” during trial. The State responds that the Defendant’s in-court behavior was
part of the evidence and that, because he testified and placed his credibility at issue,
argument about the Defendant’s demeanor was proper.
During his rebuttal closing argument, General Bivens stated, “Whoo, some
dramatics. What class had he just taken a test in? Theater. Oh, I can’t take it. The
smell, the taste of the blood.” Following trial, defense counsel filed affidavits asserting
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that General Bivens was “changing the pitch of his voice and using his body to imitate
and exaggerate [the Defendant’s] statements” when he made these statements. In the
order denying the motion for new trial, the trial court noted the Defendant’s claim that the
prosecutor’s comments on the Defendant’s in-court behavior were improper but did not
specifically address the claim. Upon review, we conclude that, even if improper, General
Bivens’ conduct did not affect the verdict to the prejudice of the Defendant when viewed
in context and in the light of the facts of the case. See Judge, 539 S.W.2d at 344.
Moreover, if General Bivens’ comments and behavior were as “undignified,
contemptuous and derisive” as claimed by defense counsel, we can only assume that the
Defendant waived his objection for tactical reasons. Consequently, the Defendant is not
entitled to relief under a plain error analysis.
V. Denial of Motion to Dismiss Indictment
At the conclusion of the State’s case-in-chief, the Defendant made a motion to
dismiss the indictment based on the State’s “failure . . . to preserve and protect evidence
which was exculpatory or likely to be exculpatory to the [D]efendant,” which the trial
court denied. The Defendant specifically argued that the State failed to collect blood
stains, including stains on the carpet and kitchen table, and failed to obtain fingerprints
from the crime scene. The Defendant further argued:
The State did not preserve the door handles, the glass on the front
door, the glass on the gun case, the door handle of the gun case, the shotgun
shells box that had been opened, the shotgun shell that was on the floor,
where shotgun shells are not normally found. They did not preserve any of
the jewelry that was located on the bed itself. They did not preserve the
sheets. They did not preserve -- in that room alone, we pointed out at least
ten items that were part of the ransacking, including the computer box, the
CD discs that was in the floor, various pieces of paper that were out of the
drawer. There was a drawer taken out of the bureau, but no -- nothing was
preserved of it.
...
That’s the first one -- the first part of this motion.
The Defendant explained that the second part of his motion was based on
investigators’ failure to preserve the secondary crime scene at Cabin 9, which the
Defendant argued contained exculpatory evidence. Finally, the Defendant argued that,
after he was taken into custody, all of the text messages on his cell phone from a certain
period of time were intentionally deleted by someone other than the Defendant.
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On appeal, the Defendant argues that the trial court erred in denying his motion to
dismiss the indictment. He contends that he was denied a fair trial by: (1) the officers’
intentional destruction of relevant, material, exculpatory evidence; (2) the State’s failure
to collect, obtain, and preserve exculpatory evidence; and (3) the trial court’s subsequent
refusal to provide the jury with Special Jury Instruction No. 5, regarding spoliation of
evidence. The State responds that the Defendant has failed to prove a violation pursuant
to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999).
In Ferguson, our supreme court “explained that the loss or destruction of
potentially exculpatory evidence may violate a defendant’s right to a fair trial.” State v.
Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing Ferguson, 2 S.W.3d at 915-16).
The court determined that the due process required under the Tennessee Constitution was
broader than that required under the United States Constitution and rejected the “bad
faith” analysis adopted by the United States Supreme Court. Id. at 784-85 (quoting
Arizona v. Youngblood, 488 U.S. 51, 58 (1988), which stated that “unless a criminal
defendant can show bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law.”) Instead, the court in
Ferguson adopted a balancing approach in which a trial court to must determine
“[w]hether a trial, conducted without the [lost or] destroyed evidence, would be
fundamentally fair.” Id. at 785 (quoting Ferguson, 2 S.W.3d at 914.)
When a defendant raises a Ferguson claim, a trial court must first “determine
whether the State had a duty to preserve the evidence.” Merriman, 410 S.W.3d at 785.
“[T]he State’s duty to preserve evidence is limited to constitutionally material evidence
described as ‘evidence that might be expected to play a significant role in the suspect’s
defense.’” Id. (quoting Ferguson, 2 S.W.3d at 917). To meet this constitutional
materiality standard, “the evidence must potentially possess exculpatory value and be of
such a nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” Id. (footnote omitted).
If the proof demonstrates the existence of a duty to preserve and further shows that
the State has failed in that duty, a court must proceed with a balancing analysis involving
consideration of the following factors:
1. The degree of negligence involved;
2. The significance of the destroyed evidence, considered in light of the
probative value and reliability of secondary or substitute evidence that
remains available; and
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3. The sufficiency of the other evidence used at trial to support the
conviction.
Ferguson, 2 S.W.3d at 917 (footnote omitted). The trial court is required to balance these
factors to determine whether conducting a trial without the missing evidence would be
fundamentally fair. Merriman, 410 S.W.3d at 785. “If the trial court concludes that a
trial would be fundamentally unfair without the missing evidence, the trial court may then
impose an appropriate remedy to protect the defendant’s right to a fair trial, including, but
not limited to, dismissing the charges or providing a jury instruction.” Id.
This court reviews the trial court’s decision concerning the fundamental fairness
of a trial conducted without the missing evidence under a de novo standard of review. Id.
at 791. The trial court’s findings of fact, however, are entitled to substantial deference on
appeal and are conclusive unless the evidence preponderates against them. See id. (citing
Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). We review
the trial court’s choice of remedy for a Ferguson violation under the abuse of discretion
standard. Id.
A. Intentional Destruction of Exculpatory Evidence
The Defendant contends that after his arrest, while he was handcuffed and in
custody, all text messages sent and received before 9:20 p.m. on March 4, 2011, were
intentionally deleted from his cell phone. He alleges that text messages between Mr. Hill
and the Defendant would have corroborated the Defendant’s testimony about “a drug deal
gone bad,” Mr. Hill’s threats to the Defendant, Mr. Hill’s role in the murders, and the
duress the Defendant was under. The Defendant asserts that the State had a duty to
preserve the evidence after the cell phone was seized by officers and that the deletion of
the evidence made his trial fundamentally unfair and warranted dismissal of the
indictment. However, when addressing the issue in the order denying the motion for new
trial, the trial court found:
All of the officers who came in contact with the [D]efendant’s cell phone
denied under oath having deleted any text messages before he surrendered
the phone. On the night of his arrest, the [D]efendant had an opportunity to
delete text messages. The only proof [that] the State destroyed evidence is
the conclusion that the defense reaches that text messages were destroyed
while the cell phone was in the custody of the State. It is significant to note
also from the testimony at trial and on Motion for New Trial that text
messages can be deleted remotely on cell phones. The Court does not find
that the State deleted the text messages. The defense also had an
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opportunity to retrieve any text messages after they had been employed and
before the carrier systematically deleted the messages.
The evidence does not preponderate against the trial court’s factual findings. The
officers who possessed the Defendant’s cell phone following his arrest testified that they
did not delete or attempt to delete any text messages from the cell phone. The
Defendant’s expert, Mr. Davis, agreed that the Defendant could have deleted all of the
text messages before his arrest. Mr. Davis also stated that some drug dealers will delete
their text messages shortly after the messages are received so that no record of the text
messages exists. He stated that it was “[j]ust as possible” that the Defendant deleted the
messages shortly after they were received as it was that someone else deleted the
messages from the cell phone after his arrest. At the motion for new trial hearing, Officer
McDowell testified that it was possible to delete information from a cell phone remotely
and that “it would not be difficult for one of [the Defendant’s] associates, a family
member, anyone else that would have the same interest as him in getting rid of the
messages” to delete them in this manner. Officer McDowell further testified that, as the
account holder, the Defendant could have requested that the cell phone company preserve
his text messages at any time. Based on the foregoing, the Defendant failed to establish
destruction of evidence by the State. Accordingly, he is not entitled to relief under
Ferguson.
B. Law enforcement’s Failure to Collect and Preserve Exculpatory Evidence
The Defendant also asserts that the State violated Ferguson when TBI
investigators failed to collect additional blood samples and check for latent fingerprints at
the victims’ residence and when they failed to collect and preserve the bloody towel and
fruit punch cans at Cabin 9. The State replies that investigators did not fail to preserve
any evidence which it had a duty to preserve. Relying on this court’s opinion in State v.
Brock, 327 S.W.3d 645 (Tenn. Crim. App. 2009), the State contends that it had no duty to
preserve these items because they were never taken into evidence by police. In Brock,
the defendant raised a Ferguson claim based upon the State’s failure to collect fingerprint
evidence and a bloody shoeprint on the carpet near the victim’s body. Id. at 698. This
court concluded that due process did not require the State to collect the evidence in
question. Id. at 699. The court explained:
On the one hand, the State is not required to investigate cases in any
particular way: “Due process does not require the police to conduct a
particular type of investigation. Rather, the reliability of the evidence
gathered by the police is tested in the crucible of a trial at which the
defendant receives due process.” Moreover, “[i]t is not the duty of this
[c]ourt to pass judgment regarding the investigative techniques used by law
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enforcement unless they violate specific statutory or constitutional
mandates.” Accordingly, when the police have not conducted a fingerprint
analysis, there is typically no duty to preserve what is essentially
nonexistent evidence.
Id. (quoting State v. Tony Best, No. E2007-00296-CCA-R3-CD, 2008 WL 4367529, at
*13 (Tenn. Crim. App. Sept. 25, 2008), perm. app. denied (Tenn. Mar. 16, 2009))
(citations omitted); see also State v. Cordell Bufford, No. W2013-00841-CCA-R3-CD,
2014 WL 2129526, at *13 (Tenn. Crim. App. May 20, 2014), no perm. app. filed
(concluding that the defendant’s claim that “the State should have collected more
evidence because that evidence might have been exculpatory” did not meet the standard
required for a Ferguson jury instruction on the State’s duty to preserve evidence).
1. Bloody towel and fruit punch cans from Cabin 9
The proof in this case showed that the Defendant rented Cabin 9 at Boyette’s from
March 1-4. After check-out time on March 4, two housekeepers, Ms. Patterson and Ms.
Nugent, cleaned the cabin. Ms. Patterson saw a towel laying in the floor that had “a little
blood on it.” She stated that finding a towel with a small amount of blood on it was not
unusual because guests often cleaned fish in the cabins, so she rolled the towels up and
put them into a large laundry bag along with the sheets. The fruit punch cans were taken
out to the dumpster as part of the trash. Two to three days after the murders, Ms. Capps
called Sheriff Avery and informed him that the Defendant had recently rented a cabin at
Boyette’s. Sheriff Avery responded to the cabin and spoke to Ms. Patterson and Ms.
Nugent. He learned that a Hispanic man had stayed in the cabin and that the cabin had
been cleaned already. Sheriff Avery went into the cabin to look around but found that it
was clean and that there was nothing inside. Although Ms. Patterson testified that she
thought she mentioned the bloody towel to Sheriff Avery, he testified that he was not told
about the bloody towel at that time. It is not clear from the testimony whether anyone
informed Sheriff Avery about the existence of the fruit punch cans. Several weeks later,
Investigator Vernon went to Boyette’s and spoke to Ms. Patterson and Ms. Nugent. They
told him that, when they cleaned Cabin 9 on the morning of March 4, they found about a
towel with blood on it in the bathroom. Investigator Vernon testified, however, that by
this time they did not have the bloody towel, and the cabin had been cleaned. Although
Sheriff Avery told Agent Bishop about Cabin 9, Agent Bishop testified that he did not
have the cabin processed as a secondary crime scene because it was “two or three days
after the homicide[s], and . . . it was already cleaned.”
In the order denying the motion for new trial, the trial court found that “[t]here
was no proof that the evidence that the defense claimed was not gathered or preserved
would have been exculpatory for the [D]efendant.” Nevertheless, the Defendant
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speculates that the bloody towel and the fruit punch cans, found in a room he rented,
could have in some way yielded exculpatory evidence. However, we have previously
held that “[t]he mere possibility of exculpatory content does not trigger a finding that the
State failed in its general duty to preserve evidence under Ferguson.” State v. Ronnie D.
Sims, No. M2004-02491-CCA-R3-CD, 2005 WL 3132441, at *8 (Tenn. Crim. App. Nov.
22, 2005), perm. app. denied (Tenn. Mar. 20, 2006) (internal citation omitted). Here, it
appears that law enforcement was not made aware of the bloody towel until possibly
weeks after Cabin 9 had been cleaned. The towel contained only a small amount of
blood and did not raise the suspicions of Ms. Patterson and Ms. Nugent. It is unclear
when investigators learned about the fruit punch cans, but it was also sometime after the
cabin had been cleaned. Moreover, the Defendant never told investigators about Mr.
Hernandez’s staying in Cabin 9 or about Mr. Hernandez’s connection to “the three
Mexicans,” who allegedly committed the murders. Under these facts, we cannot
conclude that the State had a duty to collect the bloody towel or fruit punch cans.
Because it had no duty to collect the evidence in the first place, the State also had no duty
under Ferguson to preserve such evidence.
2. Blood stain samples and fingerprints
Similarly, the State had no duty to collect fingerprints and additional blood
samples from the victims’ residence. At trial, crime scene investigators testified
extensively about the blood samples that were collected and why they were collected.
They also testified about the feasibility of dusting for fingerprints on various surfaces.
Agent Lafferty explained that certain items of evidence collected from the scene were
dusted for fingerprints with negative results. Agent Nelson testified that there was no
evidence with any apparent evidentiary value that was not collected at the victims’
residence. In denying the Defendant’s motion to dismiss the indictment, the trial court
stated:
There’s not anything before the Court . . . to lead the Court to think that
there is any particular exculpatory evidence in that -- in all the blood
evidence, the -- the latent fingerprints, there’s not any evidence that they
found anything that would indicate that there were latent prints. They tried
to take prints from the area that might be. And all of the information that
was gathered appears to me to be the information that they would have
suspected would be the necessary information. The fact that there is blood
that was not tested, to me does not violate the law set out in the Ferguson
case.
Although the Defendant’s experts opined that additional blood samples should
have been taken and that the crime scene dusted for fingerprints, the Defendant has not
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shown that the investigative techniques used by law enforcement violated “specific
statutory or constitutional mandates.” Brock, 327 S.W.3d 699. Moreover, because the
Defendant was allowed to present considerable expert testimony to the jury about the
investigative negligence of the TBI, the “reliability of the evidence gathered by the police
[was] tested in the crucible of a trial.” Id. at 698. The Defendant is not entitled to relief.
C. Special Jury Instruction No. 5
The Defendant contends that the trial court erred when it denied his request that
the trial court charge the jury pursuant to Tennessee Pattern Criminal Jury Instruction
42.23 on the State’s duty to preserve evidence, which states in part:
If, after considering all of the proof, you find that the State failed to
gather evidence or preserve evidence, the contents or qualities of which are
an issue and the production of which would more probably than not be of
benefit to the [D]efendant, you may infer that the absent evidence would be
favorable to the [D]efendant.
Because there was no Ferguson violation in this case, as explained above, the trial
court did not err by declining to give the Defendant’s requested instruction. It is only
when a trial court concludes that “a trial would be fundamentally unfair without the
missing evidence” that a trial court may impose an appropriate remedy, such as providing
the Defendant’s requested instruction. See Merriman, 410 S.W.3d at 785-86. This issue
is without merit.
VI. Due Process Violations
The Defendant contends that the State committed a Brady violation by failing to
disclose the State’s agreement with Mr. Hernandez that he not be treated as a “suspect” in
the victims’ murders and by not disclosing Mr. Hernandez’s complete criminal record.
The Defendant also argues that the prosecutor’s objections to Mr. Hernandez’s testifying
about the Mexikanemi amounted to a violation of Napue v. Illinois, 360 U.S. 264 (1959).
The State responds that it did not violate the Defendant’s due process rights with respect
to Mr. Hernandez.
A. Brady Violation
As previously discussed, the United States Supreme Court stated in Brady that
“the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.
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Even if the defendant does not specifically request evidence, favorable evidence is
material, and its suppression is a constitutional violation, “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Bagley, 473 U.S. at 682. “Reasonable
probability” is defined as “a probability sufficient to undermine the confidence in the
outcome.” Id. The defendant bears the burden of proving a constitutional violation by a
preponderance of the evidence. Edgin, 902 S.W.2d at 389.
The prosecution’s duty to disclose Brady material also applies to evidence
affecting the credibility of a government witness, including evidence of any agreement or
promise of leniency given to the witness in exchange for favorable testimony against an
accused. Giglio v. United States, 405 U.S. 150, 154-55 (1972) (requiring the prosecution
to reveal the contents of plea agreements with key government witnesses); see also
Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).
1. Agreement with Mr. Hernandez
During trial, Mr. Hernandez testified that the prosecutor told him that, if he did not
testify, he would “be a suspect” in the victims’ murders. The Defendant contends that if
he had known about Mr. Hernandez’s agreement with the State, “the decision to call
[Mr.] Hernandez as a hostile witness would have been different.” In addressing this
issue, the trial court stated:
The defense raises as error a claim that the State failed to disclose to
the defense negotiations with [Mr.] Hernandez in an agreement that Mr.
Hernandez would not be a suspect in the Shells’ murder in return for his
testimony in support of the State. The State denies that there was any
agreement. The Court does not find that there was a specific agreement
between Mr. Hernandez and the State that he would not be a suspect if he
testified.
The record supports the findings and conclusions of the trial court. Mr.
Hernandez’s testimony that he would “be a suspect” if he did not testify does not
establish a promise of leniency in exchange for his trial testimony. Moreover, Mr.
Hernandez testified about the alleged agreement, and the Defendant had ample
opportunity to question Mr. Hernandez regarding his bias. See State v. Bolden, 979
S.W.2d 587, 590 (Tenn. 1998) (“In most instances, any potential for prejudice to a
defendant’s case will be avoided by allowing the witness to testify subject to searching
cross-examination intended to develop fully any evidence of bias or motive on the part of
the witness, or improper conduct on the part of the State.”) Finally, in his brief, the
Defendant fails to explain how the decision to call Mr. Hernandez would have been
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“different,” leaving this court to speculate as to how the Defendant suffered prejudice.
The Defendant has not established a Brady violation and is not entitled to relief.
2. Mr. Hernandez’s complete criminal record
In his brief, the Defendant asserts that he learned after trial that the State did not
produce records concerning Mr. Hernandez’s charges from Laredo, Texas of aggravated
assault with a deadly weapon, charges involving an assault with a shank on a fellow
inmate, and records showing that the federal penal system designated Mr. Hernandez as
“High Risk and Assaultive.” Regarding this issue, the trial court found:
The defense claims that the State failed to comply with the Court’s
order to produce all of the evidence concerning arrest and criminal records
of [Mr.] Hernandez. Mr. Hernandez testified during trial that certain
convictions in Texas were not him, but his father. It appears that the State
provided any known evidence of prior convictions. The Court also notes
that defense counsel adequately examined Mr. Hernandez about all
convictions.
We conclude that the Defendant has failed to establish a Brady violation. First, we
note that, beyond allegations in the Defendant’s motion for new trial, there is no proof in
the record of these additional charges from Laredo, Texas or of Mr. Hernandez’s alleged
designation in federal prison. Instead, the record shows that the State provided the
Defendant with evidence of Mr. Hernandez’s known prior convictions, which described
in detail Mr. Hernandez’s known criminal history, as well as his known gang
involvement. Even if the State had some duty under Brady to obtain and provide Mr.
Hernandez’s complete criminal record, any error in failing to do so is harmless beyond a
reasonable doubt. This is especially true given the Defendant’s extensive direct
examination of Mr. Hernandez concerning his criminal history, prison disciplinary
history, and gang involvement. This issue is without merit.
B. Napue Violation
During trial, Mr. Hernandez denied multiple times that he was a member of the
Mexikanemi. Mr. Hernandez stated that he was merely “an associate” of the prison gang
and that he could be “stabbed” in prison if he said he was a member of the gang when he
was not. The following exchange then took place:
[DEFENSE COUNSEL]: . . . And they have [] a constitution, don’t they?
[MR. HERNANDEZ]: I believe so.
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[DEFENSE COUNSEL]: I want [you to] look at this document and [to] ask
you if this is not the Mexican Mafia Constitution?
[MR. HERNANDEZ]: With all due respect, I can’t see that.
[DEFENSE COUNSEL]: You can’t see it?
[MR. HERNANDEZ]: No. I am not a member. I am not going to touch
something that I am not a member of.
[DEFENSE COUNSEL]: Let me ask you one of the things that’s in it.
[GENERAL BIVENS]: Your Honor, objection. He stated that he can’t
look at it. He’s not a member.
THE COURT: He can ask him if he knows the contents of the document
and he will have to lay the proper ground work . . . .
Defense counsel’s questioning then continued, as follows:
[DEFENSE COUNSEL]: You knew they had a constitution, didn’t you?
[MR. HERNANDEZ]: I heard it from some other like associates around
there like, you know, things that you know. I’m just an associate and I
didn’t want nothing [sic] to do with those people.
[DEFENSE COUNSEL]: And the [Mexikanemi] is a criminal organization.
It’s a criminal gang, isn’t it.
[MR. HERNANDEZ]: Big bad boys.
[DEFENSE COUNSEL]: Pardon?
[MR. HERNANDEZ]: Big bad boys from prison.
[DEFENSE COUNSEL]: And the big bad boys from prison run stuff
outside prison, don’t they?
[MR. HERNANDEZ]: Only they can answer that.
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The Defendant argues that the State’s objection “mislead the trial court” and
allowed false testimony to be presented to the jury and go uncorrected, which deprived
the Defendant of a fair trial. He notes that the prosecutor later conceded during closing
argument that Mr. Hernandez lied when he denied being a member of the Mexikanemi.
The Defendant asserts that the prosecutor had “an affirmative duty to prevent and correct
false testimony,” but the prosecutor objected to defense counsel’s questioning Mr.
Hernandez about the Mexikanemi in order to “protect” Mr. Hernandez.
It is well-established law that “a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under the Fourteenth
Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). As such, the State may not
knowingly present false testimony, and it has an affirmative duty to correct the false
testimony of its witnesses. State v. Giglio, 405 U.S. 150, 153-54 (1972). In order to be
granted a new trial based on the presentation of false testimony, the defendant must
establish that “the State presented false testimony; the State knew the testimony was
false, and the testimony was material.” State v. Cureton, 38 S.W.3d 64, 74-75 (Tenn.
Crim. App. 2000). If testimony is determined to be false, this court must determine
whether the false testimony could have affected the jury’s judgment. Giglio, 405 U.S. at
154 (citing Napue, 360 U.S. at 271).
We conclude that, although the State’s objection may have been unfounded, there
was no knowing presentation of false testimony by the State. The State did not present
Mr. Hernandez’s allegedly false testimony; instead, defense counsel elicited the
testimony. Moreover, the trial court did not “sustain[] the objection and foreclose[]
cross-examination,” as claimed by the Defendant. Clearly, defense counsel continued to
question Mr. Hernandez about whether he was a member of the Mexikanemi.
Additionally, Dr. Valdez testified at length about the Mexikanemi constitution, and the
document was made an exhibit at trial. Dr. Valdez further opined that Mr. Hernandez
was a member of the gang, and the State conceded that Mr. Hernandez was a member of
the Mexikanemi during closing argument. Thus, any perceived limitation on cross-
examination was harmless. The Defendant is not entitled to relief.
VII. Admission of the Defendant’s Jailhouse Letter
During cross-examination of the Defendant, the State approached the Defendant
with a letter written by the Defendant at the Lake County Jail, and defense counsel
objected on the basis that the letter had not been disclosed previously. Defense counsel
argued that he had “never seen that letter,” but the State responded that it had sent a copy
of the letter to defense counsel’s investigator before trial. The State introduced a copy of
a letter sent to defense counsel’s office dated February 7, 2013, which indicated that the
Defendant’s jailhouse letter was enclosed. Ultimately, the trial court did “not find any
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prosecutorial misconduct in this case because the defense failed to receive a copy of this
letter” and allowed the State to introduce the letter, which the Defendant acknowledged
he had written while in jail.
On appeal, the Defendant argues that the trial court erred by admitting a copy of
the Defendant’s letter based on the State’s failure to produce the letter before trial. The
State responds that the trial court did not abuse its discretion by admitting the letter into
evidence.
“Generally, the admission of evidence at trial is entrusted to the broad discretion
of the trial court, and as such, a trial court’s ruling on the admission of evidence where
relevance is questioned may only be disturbed upon a showing of an abuse of that
discretion.” State v. Martinez, 372 S.W.3d 598, 619 (Tenn. Crim. App. 2011) (citing
State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004)). An abuse of discretion occurs
when a trial court “applies incorrect legal standards, reaches an illogical conclusion,
bases its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.” Scott, 275 S.W.3d at 404-
05.
Rule 16 of the Tennessee Rules of Criminal Procedure provides that, upon a
defendant’s request, the State must disclose “the defendant’s relevant written or recorded
statements, or copies thereof, if . . . the statement is within the [S]tate’s possession,
custody, or control[.]” Tenn. R. Crim. P. 16(a)(1)(B)(i)(I). Rule 16 further provides:
If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its
time, place, and manner; and prescribe other just terms or conditions;
(B) grant a continuance;
(C) prohibit the party from introducing the undisclosed evidence; or
(D) enter such other order as it deems just under the circumstances.
Tenn. R. Crim. P. 16(d)(2).
In this case, the Defendant filed a motion for discovery under Rule 16, requesting
all relevant written statements of the Defendant. The State asserted that it had provided
the letter to the Defendant and offered proof of its mailing. Thus, the record supports the
trial court’s conclusion that there was no improper conduct on the part of the State that
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resulted in defense counsel’s not receiving the letter. Moreover, as noted by the State,
from the time the letter was introduced into evidence until the end of the Defendant’s
proof the next day, defense counsel had “nearly an entire day to examine the letter and
discuss it with [the Defendant].” Defense counsel did not recall the Defendant for the
purpose of explaining the contents of the letter, including the poem at the end. Because
the information was in the Defendant’s possession before the close of proof and he had
an opportunity to offer evidence about the letter to the jury, we fail to see how the trial
court’s ruling resulted in “an injustice to the complaining party.” Scott, 275 S.W.3d at
404-05. Accordingly, we hold that the trial court did not abuse its discretion in admitting
the Defendant’s letter into evidence. This issue is without merit.
VIII. Errors in the Trial Court’s Instructions to the Jury
A. Felony Murder Instruction
The Defendant contends that the trial court’s instructions regarding first degree
felony murder were unclear and confusing due to the trial court’s use of cross-references
to earlier instructions. Specifically, he asserts that jurors “did not realize that Felony
Murder was First Degree Murder and did not realize that their verdict would expose [the
Defendant] to the death penalty and the other two harsher punishments.” The State
responds that the trial court did not err in instructing the jury.
“[T]he trial court has a duty to provide a ‘complete charge of the law applicable to
the facts of the case.’” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). However, jury instructions must be
reviewed in their entirety, and phrases may not be examined in isolation. State v.
Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008). “An instruction should be considered
prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” State v. Majors,
318 S.W.3d 850, 864-65 (Tenn. 2008) (quoting State v. Faulkner, 154 S.W.3d 48, 58
(Tenn. 2005)) (internal quotation marks omitted). As noted by our supreme court:
[J]urors do not sit in solitary isolation booths parsing instructions for
subtle shades of meaning in the same way that lawyers might. Differences
among them in interpretation of instructions may be thrashed out in the
deliberative process, with commonsense understanding of the instructions
in the light of all that has taken place at the trial likely to prevail over
technical hairsplitting.
Rimmer, 250 S.W.3d at 31 (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)).
To determine whether a defendant is harmed by an ambiguous instruction, “we must
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consider ‘whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Rimmer, 250 S.W.3d at 31 (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). To make that determination, the “significant
question” is “‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.” Id. (quoting Estelle v.
McGuire, 502 U.S. 62, 72 (1991)). Whether jury instructions are sufficient is a question
of law, which we review de novo with no presumption of correctness. State v. Clark, 452
S.W.3d 268, 295 (Tenn. 2014).
In State v. Cravens, our supreme court stated that “all of the elements of each
offense should be described and defined in connection with that offense, although . . .
there could be cross-referencing or repetition in connection with the lesser offenses since
jury instructions in felony cases are required by statute to be written and physically
delivered to the jurors for use in their deliberations.” 764 S.W.2d 754, 756 (Tenn. 1989).
The court further held that combining the charge regarding two different degrees of
murder was not generally approved of, but did not constitute reversible error. See id.
In this case, the Defendant was charged with first degree felony murder in Counts
Three and Four. The instructions for Count Three read:
Any person who commits first degree murder is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have
proven beyond a reasonable doubt the existence of the following essential
elements:
(1) that the [D]efendant unlawfully killed the alleged victims
as set out in Counts Three and Four of the indictment;
and
(2) that the killing was committed in the perpetration of or the
attempt to perpetrate the alleged robbery or theft; that is, that
the killing was closely connected to the alleged robbery or
theft and was not a separate, distinct and independent event;
and
(3) that the [D]efendant intended to commit the alleged
robbery or theft.
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The essential elements of the offense of Especially Aggravated Robbery
and its lesser included offenses of Aggravated Robbery, Robbery and Theft
will be described and defined for you later in these instructions.
The intent to commit the underlying felony must exist prior to or concurrent
with the commission of the act causing the death of the victim. Proof that
such intent to commit the underlying felony existed before, or concurrent
with, the act of killing is a question of fact to be decided by the jury after
consideration of all the facts and circumstances. Consideration of such
factors as time, place and causation is helpful in determining whether a
killing was committed in the perpetration of the alleged robbery or theft.
The killing may precede, coincide with, or follow the robbery or theft and
still be considered as occurring in the perpetration of the robbery or theft,
so long as there is a connection in time, place and continuity of action.
“Intentionally” means that a person acts intentionally with respect to the
nature of the conduct or to a result of the conduct when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.
If you find from the proof beyond a reasonable doubt that the [D]efendant
is guilty of murder in the first degree, then it shall be your duty after a
separate sentencing hearing to determine whether the defendant will be
sentenced to death, life imprisonment without the possibility of parole or
life in prison[.]
As to Count Four, the trial court instructed, “The essential elements of First Degree
Felony Murder are identical to the essential elements of First Degree Felony Murder as
set out in Count Three of the indictment.”
Despite the Defendant’s claim to the contrary, the instructions for Count Three,
and by reference Count Four, clearly informed jurors that that the charge was first degree
murder and specifically stated that, if the jury found the Defendant guilty of the offense,
the jury would sentence the Defendant to three possible sentences: death, life without
parole, or life. When taken as a whole, we conclude that the jury instructions adequately
defined all the relevant legal terms for first degree felony murder and fairly submitted the
legal issues for the jury’s determination. See Majors, 318 S.W.3d at 864-65. Thus, any
error in the trial court’s instruction was harmless, and the Defendant is not entitled to
relief.
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B. Special Jury Instructions
The Defendant further asserts that the trial court erred when it failed to instruct the
jury pursuant to the Defendant’s Special Jury Instructions No. 6, 7, 9, and 10, and by
failing to instruct the jury that the Defendant had to be present when the victims were
killed to be found guilty of murder.14 He contends that the failure to give these
instructions resulted in unfair prejudice and requires a new trial. In response, the State
asserts that the trial court properly instructed the jury.
1. Special Instruction No. 6
The Defendant’s Special Jury Instruction No. 6 read:
6. Any action or attempt by law enforcement which results in the
State’s failure to preserve, or obtain, or to conceal destruction of evidence
is a circumstance which, when considered with all the facts of the case, may
justify an inference of a reasonable doubt of guilt of the [D]efendant.
While that inference is not automatically strong enough in and of itself to
warrant reasonable doubt, it may become one of a series of circumstances
from which reasonable doubt may be logically inferred. If evidence
indicates failure to preserve or obtain, or the concealment or destruction of
evidence, and this fact is proven, this fact alone does not automatically, but
may, allow you to find that the defendant is not guilty of the crime alleged.
The failure to preserve or obtain or the destruction or concealment of
evidence may be explained by proof offered or[] by the facts and
circumstances in the case. Since the failure to preserve or obtain or the
concealment or destruction of evidence, whether negligently or
intentionally, may raise a concern about the adequacy of the investigation,
you may consider this fact, if it is so proven, together with all of the other
evidence when you decide the guilt or innocence of the [D]efendant.
The weight to be given to such evidence, are questions for you to
determine.
The Defendant asserts that because the evidence showed that all text messages
sent and received between the Defendant and Mr. Hill were intentionally deleted from the
14
Under this section of the Defendant’s brief, the Defendant also challenges the trial court’s
failure to instruct the jury using Special Jury Instruction No. 5; however, we have already addressed
Special Jury Instruction No. 5 in part V., and we will not revisit it here.
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Defendant’s cell phone, it was error for the trial court to deny the Defendant’s request to
instruct the jury as to the inference raised by the destruction of evidence. However, as
previously discussed, the trial court accredited the testimony of officers, who denied
deleting any text messages from the Defendant’s cell phone. Additionally, the evidence
demonstrated that the Defendant himself had the opportunity to delete text messages
before he was taken into custody. Accordingly, the trial court correctly refused to give
the requested Special Jury Instruction No. 6.
2. Special Instruction No. 7
The Defendant’s Special Jury Instruction No. 7, regarding felony murder, was a
modified version of Tennessee Pattern Criminal Jury Instruction 7.03, in which the
Defendant changed “first degree murder” to “first degree felony murder” and added the
words “and that the killing must have had an intimate relation and close connection with
the robbery or theft” to the second full paragraph of the pattern instruction. In his brief,
the Defendant contends that the trial court erred by failing to give this modified
instruction but offers no argument or analysis to support his contention. Thus, we
conclude that the Defendant has waived our consideration of this issue. See Tenn. R. Ct.
Crim. App. 10(b); see also Tenn. R. App. P. 27(a)(7)(A).
In any event, we note that the trial court instructed the jury as to first degree felony
murder with Tennessee Pattern Criminal Jury Instruction 7.03. The trial court’s
instruction was a full, fair, and complete statement of the law as it relates to the timing
and connection of the underlying felony and the killings needed to convict someone of
felony murder. See James, 315 S.W.3d at 446. Accordingly, the trial court did not err in
refusing to provide the special jury instruction.
3. Special Instruction No. 9
The Defendant also argues that “[t]he trial court erred by failing to instruct the jury
that the ‘scientific, technical, or other specialized knowledge, skill, experience, training
or education’ of the expert was to be ‘considered’ by them[,]” as requested in Special
Jury Instruction No. 9. However, the Defendant makes no argument in his brief to
support his position, and he cites to no authority. Accordingly, we conclude that the
Defendant has waived this issue. See Tenn. R. Ct. Crim. App. 10(b); see also Tenn. R.
App. P. 27(a)(7)(A).
Waiver notwithstanding, the issue is meritless, as found by the trial court when
denying the motion for new trial:
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Next, the [D]efendant claims that the Court was in error in denying
special jury instruction request [No.] 9 dealing with expert witness
testimony. [The] Defendant claims that this special request would have
more fully explained how the jury was to consider such testimony. The
Court gave the standard charge dealing with expert testimony indicating
that such testimony should be received with caution and the jury was not
bound to accept expert testimony, but that they should give such weight and
value as they thought it deserved along with all the other evidence in the
case governed by the purpose to arrive at the truth. The Court finds that the
special request was contained in the standard charge regarding expert
witnesses.
Here, the trial court instructed the jury pursuant to Tennessee Pattern Criminal
Jury Instruction 42.02, relating to expert testimony. Because the trial court’s instruction
was a fair, full, and complete statement of the law, the trial court did not err by failing to
provide the Defendant’s Special Instruction No. 9.
4. Instruction No. 10
The Defendant also contends that the trial court erred in denying his request for
Special Jury Instruction No. 10, regarding possession of recently stolen property. Again,
the Defendant makes no argument and cites to no authority in his brief to support his
claim. Accordingly, we conclude that the Defendant has waived this issue. See Tenn. R.
Ct. Crim. App. 10(b); see also Tenn. R. App. P. 27(a)(7)(A).
In addition to being waived, the issue is meritless. In its order denying the motion
for new trial, the trial court found:
The [D]efendant claims that the Court was in error in rejecting
special jury instruction request [No.] 10 regarding duress as a defense
against inferences that could be drawn from possession of recently stolen
property. The Court gave a charge dealing with the inference that could be
drawn by having recently stolen property in one’s possession. The Court
also gave the Tennessee Pattern Instruction charge regarding duress. The
[D]efendant was seeking to have the Court modify the charge to again
instruct the jury on duress as a defense against inferences in the instruction
dealing with an inference that could be drawn from one having recently
stolen property in his possession. The duress charge was given. The jury
was instructed that it was never required to make such an inference and
further that if they found from the evidence in this case that the inference
was not warranted, they could reject any such inference. The Court finds
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that the information requested in the special request [No.] 10 is covered by
both of these charges mentioned.
We agree with the trial court. The pattern instruction provided to the jury—
Tennessee Pattern Criminal Jury Instruction 42.20 on the inference from possession of
recently stolen property—was based on the testimony of several witnesses, including the
Defendant, who testified that the Defendant was in possession of property taken from the
victims’ residence the day after the murders. The instruction informed the jury that, if it
found “beyond a reasonable doubt” that the Defendant was in possession of recently
stolen property, the jury may reasonably draw an inference that the Defendant gained
possession of said property through theft, unless the possession is “satisfactorily
explained.” 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.02. Thus, the instruction
covered the Defendant’s explanation that he was acting under duress based on threats
from Mr. Hill and “the three Mexicans” when he sold the victims’ property.
Additionally, the instruction stated that the jury was “never required to make this
inference.” Because Tennessee Pattern Criminal Jury Instruction 42.20 provided a full,
fair, and correct statement of the law regarding this inference, the Defendant would not
be entitled to relief even if the issue were not waived.
5. Instruction requiring presence for felony murder
The Defendant also asserts that the trial court erred when it refused to instruct the
jury that the State had to prove that he was present when the victims were killed, in
addition to knowingly and willfully participating in their deaths. However, in his brief
the Defendant cites to no authority for this proposition and makes no argument.
Accordingly, the Defendant has waived this issue. See Tenn. R. Ct. Crim. App. 10(b);
see also Tenn. R. App. P. 27(a)(7)(A).
In any event, the trial court properly refused this instruction. Based on the
Defendant’s testimony, the trial court instructed the jury on the theory of criminal
responsibility; however, there is no requirement under the law that someone criminally
responsible for the actions of another be present when and where the crime occurs.
Under a theory of criminal responsibility, a defendant’s presence and companionship
with the perpetrator of a felony before and after the commission of the offense are
circumstances from which that defendant’s participation in the crime may be inferred.
State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need be
shown, and the defendant need not have played a physical role in the crime in order to be
held criminally responsible for the crime. State v. Caldwell, 80 S.W.3d 31, 38 (Tenn.
Crim. App. 2002). To be held criminally responsible for the acts of another, the
defendant need only “associate himself with the venture, act with knowledge that the
offense is to be committed, and share in the criminal intent of the principal in the first
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degree.” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting
Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)); see e.g., State v.
Lewis, 919 S.W.2d 62, 66 (Tenn. Crim. App. 1995) (determining that the jury properly
found the defendant criminally responsible for felony murder which was committed by
another person outside of the defendant’s car while the defendant remained inside the
vehicle), overruled on other grounds by State v. Williams, 977 S.W.2d 101, 106 n.7
(Tenn. 1998); State v. Chad Medford, No. E2012-00335-CCA-R3-CD, 2013 WL
2424137, at *16 (Tenn. Crim. App. June 5, 2013) (concluding that the evidence was
sufficient to establish that the defendant was criminally responsible for the acts of his two
co-defendants, and thus guilty of felony murder, when the defendant provided the co-
defendants information about a safe in the victims’ residence, dropped off the co-
defendants at the victims’ residence on the night of the murder, and picked up the co-
defendants after they ran from the crime scene), no perm. app. filed. Waiver
notwithstanding, this issue is without merit.
IX. Sufficiency of the Evidence
The Defendant argues that the trial court erred by denying his motion for judgment
of acquittal because the evidence was insufficient to prove beyond a reasonable doubt
that the Defendant was not acting under duress, which is a complete defense. He further
contends that his convictions must be overturned because the State presented no
testimony to rebut his claim that he acted under duress. The State first responds that the
Defendant has waived his claim regarding the motion for judgment of acquittal.
Additionally, the State argues that the jury had sufficient evidence to reject the
Defendant’s claim of duress.
A. Motion for Judgment of Acquittal
Rule 29 of the Tennessee Rules of Criminal Procedure “empowers the trial judge
to direct a judgment of acquittal when the evidence is insufficient to warrant a conviction
either at the time the [S]tate rests or at the conclusion of all the evidence.” State v.
James, 315 S.W.3d 440, 455 (Tenn. 2010) (citing Overturf v. State, 571 S.W.2d 837, 839
& n. 2 (Tenn. 1978)). When considering a motion for judgment of acquittal, whether at
the close of the State’s proof or after the conclusion of all proof at trial, the trial court is
only concerned with the legal sufficiency of the evidence and not with the weight of the
evidence. State v. Collier, 411 S.W.3d 886, 892 (Tenn. 2013). A defendant waives his
right to appeal from the trial court’s denial of a motion for judgment of acquittal made at
the close of the State’s case-in-chief if the defendant introduces proof after making the
motion. Finch v. State, 226 S.W.3d 307, 316-17 (Tenn. 2007). In this case, the trial
court denied the motion for judgment of acquittal, and thereafter, the Defendant testified
and presented witnesses. For that reason, we agree with the State that the Defendant
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waived any claim of error for failure to grant the motion after the State rested its case.
The Defendant, however, may still challenge the denial of the motion for judgement of
acquittal made at the close of all proof. Collier, 411 S.W.3d at 893. Because “[t]he
standard by which the trial court determines a motion for judgment of acquittal at the end
of all the proof is, in essence, the same standard that applies on appeal in determining the
sufficiency of the evidence after a conviction[,]” we will review the Defendant’s claim as
a sufficiency of the evidence challenge. Id.; see also State v. Thompson, 88 S.W.3d 611,
614-15 (Tenn. Crim. App. 2000).
B. Sufficiency of the Evidence
Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
“First degree [felony] murder is . . . [a] killing of another committed in the
perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson,
rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child
neglect, rape of a child, aggravated rape of a child or aircraft piracy[.]” Tenn. Code Ann.
§ 39-13-202(a)(2) (2010). A conviction for felony murder requires no culpable mental
state “except the intent to commit the enumerated offenses . . . .” Tenn. Code Ann. § 39-
13-202(b) (2010). The intent to commit the underlying felony must exist prior to or
concurrent with the commission of the act causing the death of the victim, and whether
such intent existed is a question of fact to be decided by the jury. State v. Buggs, 995
S.W.2d 102, 107 (Tenn. 1999). “[A] jury may reasonably infer from a defendant’s
actions immediately after a killing that the defendant had the intent to commit the felony
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prior to, or concurrent with, the killing.” Id. at 108. As relevant here, “[a] person
commits theft of property if, with intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective
consent.” Tenn. Code Ann. § 39-14-103(a) (2010). Robbery is defined as “the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2010). Especially aggravated
robbery is robbery that is “(1) [a]ccomplished with a deadly weapon; and (2) [w]here the
victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a) (2010). Second
degree murder is defined as a “knowing killing of another[.]” Tenn. Code Ann. § 39-13-
210(a)(1) (2010).
The jury in this case was instructed on criminal responsibility. “A person is
criminally responsible as a party to an offense, if the offense is committed by the person’s
own conduct, by the conduct of another for which the person is criminally responsible, or
by both.” Tenn. Code Ann. § 39-11-401(a). As pertinent here, a person is criminally
responsible for the conduct of another when, “[a]cting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense[.]”
Tenn. Code Ann. § 39-11-402(2). Criminal responsibility is not a separate crime but
instead a theory by which the State may prove the defendant’s guilt based upon another
person’s conduct. State v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing
State v. Mickens, 123 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)).
“[U]nder the theory of criminal responsibility, presence and companionship with
the perpetrator of a felony before and after the commission of the crime are
circumstances from which an individual’s participation may be inferred.” State v.
Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). In order to be convicted of the crime,
the evidence must establish that the defendant in some way knowingly and voluntarily
shared in the criminal intent of the crime and promoted its commission. Maxey, 898
S.W.2d at 757; State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
When viewed in the light most favorable to the State, the evidence shows that the
victims were violently attacked and stabbed to death in their home. The Defendant
admitted that he was present at the residence at the time of the murders and that he
carried the victims’ property out of the house. The Defendant further admitted that he
sold the victims’ camera and two of their guns the next day for $35 and $100,
respectively. The Defendant destroyed evidence of the crime by burning gloves worn
during the murders. Shortly after the murders, the Defendant was found in possession of
the victims’ jewelry, laptop, and pistol, which he had been trying to sell. Investigators
found a blood-stained knife inside the Defendant’s vehicle, and subsequent DNA testing
revealed that the knife contained a mixture of both victims’ blood. Additionally, analysis
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of the Defendant’s clothing revealed the presence of Mr. Shell’s blood, and the tread of
the Defendant’s boots were consistent with the bloody shoeprints found at the crime
scene. When questioned by investigators, the Defendant had knowledge of the details of
the crime, including that the victims had been stabbed, that Mr. Shell was found in the
living room, and that Mrs. Shell was found in the kitchen. The State also presented
evidence that the TBI collected a blood droplet from Mr. Shell’s body that contained both
his and Mrs. Shell’s blood, suggesting that the same knife was used to kill both victims.
Additionally, there was testimony that a washcloth collected by the TBI contained both
victims’ blood, from which the jury could infer that the same person killed both victims
and then wiped their blood on the washcloth. Both Mr. Hill and Mr. Hernandez testified
that they were not involved in the murders, and Mr. Hill denied that he threatened the
Defendant or his family. It appears that the jury chose to accredit their testimony over
the Defendant’s, as was its prerogative. State v. Berry, 141 S.W.3d 549, 566 (Tenn.
2004).
C. Duress
At trial, the Defendant argued that he acted under duress on the night of the
murders and the following day, and based on his testimony, the trial court provided the
jury with an instruction on duress. On appeal, the Defendant contends that the State
presented no testimony to rebut his claim that he acted under duress beyond a reasonable
doubt. We disagree.
Duress is one of the general defenses codified in Part 5 of Chapter 11, Title 39 of
the Tennessee Code Annotated; specifically, section 39-11-504 provides:
(a) Duress is a defense to prosecution where the person or a third
person is threatened with harm that is present, imminent, impending and of
such a nature to induce a well-grounded apprehension of death or serious
bodily injury if the act is not done. The threatened harm must be
continuous throughout the time the act is being committed, and must be one
from which the person cannot withdraw in safety. Further, the desirability
and urgency of avoiding the harm must clearly outweigh the harm sought to
be prevented by the law proscribing the conduct, according to ordinary
standards of reasonableness.
(b) This defense is unavailable to a person who intentionally,
knowingly, or recklessly becomes involved in a situation in which it was
probable that the person would be subjected to compulsion.
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Tenn. Code Ann. § 39-11-504. The Sentencing Commission Comments to this section
advise that the duress defense requires that the offense must be committed because
another person threatens death or serious bodily injury if the offense is not committed.
Id., Sentencing Comm’n. Cmts. Additionally, there must be no reasonable means to
escape the compulsion to commit the offense. Id.; see also State v. Robinson, 622
S.W.2d 62, 73 (Tenn. Crim. App. 1980).
Because it is not an affirmative defense, a defendant need not prove duress by a
preponderance of the evidence in order to merit a jury instruction. State v. Culp, 900
S.W.2d 707, 710 (Tenn. Crim. App. 1994). Instead, if the evidence fairly raises its
applicability, the trial court is required to submit the defense to the jury, “and the
prosecution must ‘prove beyond a reasonable doubt that the defense does not apply.’” Id.
(quoting State v. Hood, 868 S.W.2d 744 (Tenn. Crim. App. 1993)). If the jury retains any
reasonable doubt about the applicability of the defense, it must acquit the defendant of
the relevant charge. Bledsoe, 226 S.W.3d at 355 (citing Tenn. Code Ann. § 39-11-
203(d)).
Upon review, we agree with the State that Mr. Hill’s and Mr. Hernandez’s
testimony that they were not involved in the murders and did not threaten the Defendant
was sufficient evidence to rebut the duress defense. Again, the jury was free to accredit
their testimony and discredit the Defendant’s testimony on this issue. Moreover, the
Defendant had reasonable means and opportunity to escape the compulsion to commit the
offenses. By the Defendant’s own testimony, the threatened harm was not continuous
and imminent. The Defendant testified that he refused to come inside the victims’
residence when Mr. Hill motioned for him. Instead, the Defendant stayed outside, with
his car, while Mr. Hill and “the three Mexicans” committed the murders. Thus, the
Defendant had the opportunity to get in his car, drive away, and “withdraw in safety.”
Tenn. Code Ann. § 39-11-504(a). This issue is without merit.
X. Imposition of Consecutive Sentences
The Defendant argues that the trial court abused its discretion by imposing
consecutive sentences. He contends that the trial court failed to find under Wilkerson that
the public would be at risk if the Defendant was not sentenced to consecutive terms. The
Defendant argues that he expressed remorse for his involvement in the offenses; multiple
witnesses testified that he was non-combative and passive and avoided conflict; he had
no prior record; and he had no behavior issues during his four years of incarceration. The
State responds that the trial court properly imposed consecutive sentences.
When the record clearly establishes that the trial court imposed a sentence within
the appropriate range after a “proper application of the purposes and principles of our
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Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). The party challenging the sentence on appeal bears the burden of
establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401 (2014),
Sentencing Comm’n Cmts.
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2014); Bise, 380 S.W.3d at 706. While the trial court should
consider enhancement and mitigating factors, such factors are advisory only. See Tenn.
Code Ann. § 40-35-114 (Supp. 2015); see also Bise, 380 S.W.3d at 699 n.33, 704; State
v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). A trial court’s “misapplication of an
enhancement or mitigation factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706.
The Tennessee Supreme Court has expanded the standard of review in Bise to trial
courts’ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d 851,
859 (Tenn. 2013). “So long as a trial court properly articulates reasons for ordering
consecutive sentences, thereby providing a basis for meaningful appellate review, the
sentences will be presumed reasonable and, absent an abuse of discretion, upheld on
appeal.” Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705).
As relevant here, a trial court may order sentences to run consecutively pursuant
Tennessee Code Annotated section 40-35-115 if the court finds by a preponderance of the
evidence that “[t]he defendant is a dangerous offender whose behavior indicates little or
no regard for human life and no hesitation about committing a crime in which the risk to
human life is high[.]” Tenn. Code Ann. § 40-35-115(b)(4). Before imposing consecutive
sentences on the basis that a defendant is a dangerous offender, the trial court must also
find “that an extended sentence is necessary to protect the public against further criminal
conduct by the defendant and that the consecutive sentences must reasonably relate to the
severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939.
In this case, the record fully supports the trial court’s sentencing decision. In
imposing consecutive sentences, the trial court considered the gruesome facts and
circumstances of the offenses and concluded that the nature and severity of the offenses
put the Defendant in the dangerous offender category. The trial court specifically
referenced Wilkerson and found that the Defendant was a danger to the public. The trial
court also observed that the Defendant had failed to “accept direct responsibility for the
crimes” as the Defendant persisted in his claim that “the three Mexicans” were
responsible for the crimes. The trial court found that the Defendant’s lack of candor and
remorse supported consecutive sentences. Under the facts of this case, we hold that the
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trial court did not abuse its discretion when it imposed consecutive sentences. The
Defendant is not entitled to relief on this claim.
XI. Denial of Motion for Recusal
The Defendant contends that the trial court erred in denying his motion for recusal
and by failing to rule that Tennessee Code Annotated section 40-11-102 was
unconstitutional as applied to the Defendant. He argues that, by denying bail prior to trial
pursuant to section 40-11-102, the trial court pre-judged the Defendant’s guilt, and it was,
therefore, impossible for the trial court to impartially carry out its duty as thirteenth juror.
The State responds that the trial court’s denial of bail did not reasonably call into
question the court’s impartiality and that section 40-11-102 is not unconstitutional as
applied to the Defendant.
On July 7, 2014, the Defendant filed a motion for release on bail pending trial. In
his motion, the Defendant sought release so that he could “effectively assist his counsel
in the presentation of his defense[.]” In denying the Defendant’s motion, the trial court
found as follows:
The Court has considered the [D]efendant’s Motion for Bond or
Bail. This case is a capital case. It involves two rather gruesome murders.
. . . [T]he Court finds that the State has found in the possession of the
[D]efendant a knife which contains DNA evidence of blood of the victims.
The State also found that . . . in March 2011, Laquisha Tyler, delivered to
the Lake County Sheriff a camera which she indicates was bought from the
[D]efendant on March 4, 2011. The [victims’] heirs have indicated that a
camera was taken from the [victims’] house. [Mr.] Chisholm also
surrendered a laptop which was later identified as belonging to the
[victims]. [Mr.] Chisholm also delivered to the Lake County Sheriff a . . .
handgun which appeared to have been taken from the [victims]. There was
also jewelry found in the trunk of the [D]efendant’s vehicle which appeared
to come from the [victims]. The Court has also considered the testimony of
forensic specialist, Janice Johnson. Her testimony is that there should be
some evidence of blood spatters in the crime scene, and that there is no
forensic evidence of the [D]efendant’s participation in th[e] murders.
Although the testimony of Janice Johnson is logical for consideration by
the jury, the Court notes that the [D]efendant had ample opportunity to
wash and destroy any biological evidence.
Article 1 § 15 of the Tennessee Constitution provides “that all
prisoners shall be bailable by sufficient sureties, unless for capital offenses,
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when the proof is evident, or the presumption is great.” Based on
consideration of all of the items mentioned above, it appears to the Court
that proof of conviction is likely and the presumption is great. The
[D]efendant has failed to rebut the presumption that the [D]efendant
committed the crimes and that the aggravating factors as stated by the State
and the documents previously filed in this case are present. The Court finds
that there is a likelihood of conviction in this case. The Court also finds
that as a matter of safety for the community and the [D]efendant that the
[D]efendant should be denied bail.15
On March 3, 2015, the Defendant filed a motion for recusal. In a written order
denying the motion for recusal, the trial court found that: (1) sufficient grounds did not
exist to require the recusal of the trial judge; and (2) section 40-11-102 was
constitutionally sound. Specifically, the trial court reasoned:
This court previously ruled [that] the [D]efendant, who is charged
with capital murder, [wa]s not entitled to bail. In so ruling, the court,
following the dictates of Tenn. Code Ann. § 40 11-102 and Article I,
Section 15 of the Tennessee Constitution, determined the State had
established through testimony at the preliminary hearing, a hearing on
motion to suppress, and the hearing on the [D]efendant’s Motion for
Bond[,] evident proof of the [D]efendant’s guilt. Thus, the court concluded
the likelihood of conviction weighed in favor of denying bail. Considering
this factor and the severity of the offense and possible sentence in
conjunction with other factors relating to the suitability for release, the
court determined bail should be denied.
....
This court does not find any person of ordinary prudence in the
court’s position, knowing all the facts known to the court, would find a
reasonable basis for questioning the court’s impartiality. This court issued
a ruling upon a legal issue after careful consideration of the evidence
presented by both sides. In so ruling, the court was called upon by statute
and the Tennessee Constitution to evaluate the strength of the State’s case
and the likelihood of the [D]efendant’s conviction based upon the evidence
15
At the motion hearing, defense counsel argued in part that the Obion County Jail where the
Defendant was housed was a “distance” from counsel’s office and that the jail had “limited facilities” in
which counsel could meet with the Defendant. Although the trial court denied the motion for bail, the
trial court agreed to transfer the Defendant from the Obion County Jail to the custody and control of the
Tipton County Sheriff.
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available to the State. The court did so based solely upon the law and the
evidence available to the court and without interjection of personal opinion
or bias.
A. Motion to Recuse
Trial judges should recuse themselves whenever they have any doubt as to their
ability to preside impartially in a criminal case or whenever their impartiality can
reasonably be questioned. Pannel v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001)
(citing State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)). Additionally, recusal is
appropriate “when a person of ordinary prudence in the judge’s position would find a
reasonable basis for questioning the judge’s impartiality.” Alley v. State, 882 S.W.2d
810, 820 (Tenn. Crim. App. 1994) (citing State v. Cash, 867 S.W.2d 741 (Tenn. Crim.
App. 1993). The judge generally need not recuse him or herself if the bias or perceived
bias is “based upon actual observance of witnesses and evidence during trial.” Id.
However, if the judge’s bias is “so pervasive that it is sufficient to deny the litigant a fair
trial, it need not be extrajudicial.” Id. Whether to grant a motion to recuse rests within
the discretion of the trial court, and this court will not reverse the trial judge’s decision
absent an abuse of discretion. Hines, 919 S.W.2d at 578. A trial court abuses its
discretion “only when the trial court has applied an incorrect legal standard, or has
reached a decision which is illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State,
185 S.W.3d 319, 337 (Tenn. 2006)).
Section 40-11-102 provides in relevant part that “[b]efore trial, all defendants shall
be bailable by sufficient sureties, except for capital offenses where the proof is evident or
the presumption great.” Tenn. Code Ann. § 40-11-102 (2014) (emphasis added). In his
brief, the Defendant argues that “when the same judge who decides to deny bail also
becomes the trial judge, his impartiality has been removed.” He asserts that section 40-
11-102’s requirement that proof of guilt be “evident” for bail to be denied “requires the
hearing judge to weigh evidence pretrial and determine the likelihood of conviction, as
the [trial] [c]ourt did here.” We note, however, that the Defendant failed to cite to any
applicable legal authority for his argument; thus, this issue is waived. See Tenn. R. Ct.
Crim. App. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”).
Nevertheless, we conclude that the trial court did not abuse its discretion in
denying the Defendant’s motion for recusal. “Adverse rulings by a trial court are not
usually sufficient grounds to establish bias.” Alley, 882 S.W.2d at 821 (internal citation
omitted). “A trial judge is not disqualified because that judge has previously presided
over legal proceedings involving the same defendant.” State v. Reid, 213 S.W.3d 792,
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815 (Tenn. 2006) (citing Hines, 919 S.W.2d at 578). Here, the trial court concluded that
no “person of ordinary prudence in the court’s position, knowing all the facts known to
the court, would find a reasonable basis for questioning the court’s impartiality.” The
trial court also concluded that it denied the Defendant’s motion to be released on bail
“after careful consideration of the evidence presented by both sides.” There is no
evidence in the record that the trial judge was subjectively biased against the Defendant
based on his denial of the Defendant’s motion to be released on bail, nor is there any
evidence of objective bias against the Defendant. The Defendant is not entitled to relief
on this ground. See State v. Vesper Denton Hicks, No. 200, 1986 WL 677, at *2 (Tenn.
Crim. App. Jan. 10, 1986), aff’d, 1987 WL 16204 (Tenn. Aug. 31, 1987) (concluding that
the trial court properly denied defendant’s motion to recuse because there were “no
remarks or actions by the trial judge which may have indicated to the jury he was not
impartial in trying this case[]” and because “[t]he record show[ed] [that] the bail order
containing the statements complained of [wa]s in full compliance with T.C.A. § 40-11-
102 . . .”).
B. Constitutionality Challenge
The Defendant also argues that Tennessee Code Annotated section 40-11-102 is
unconstitutional when “the same judge who denies bail becomes the trial judge[]”
because the trial court predetermined the Defendant’s guilt in denying bail and, therefore,
shifted the burden of proof to the Defendant when the trial court acted in its capacity as
thirteenth juror. The Defendant contends that this statute violates his right to a fair trial
as applied. The State asserts that because section 40-11-102 “does not in fact ‘remove’
the trial judge’s ‘impartiality’ . . . , the statute cannot be unconstitutional as applied to
[the Defendant].”
Regarding the Defendant’s challenge to the constitutionality of the bail statute, the
trial court determined:
The statute was designed to protect capital defendants from being
denied bail where the proof of guilt was not evident from the evidence
available to the State. Essentially, the statute was designed to ensure the
State could not secure the denial of bail merely by filing a notice of its
intention to seek the death penalty. Recognizing the severity of such
offense and the need to protect the public while also balancing the rights of
defendant[]s to bail, the Tennessee Constitution, codified at Tenn. Code
Ann. § 40-11-102, requires proof of guilt in capital cases to be “evident”
before bail may be denied. Requiring the court to make such a
determination upon a motion for bail does not remove the presumption of
innocence which continues to follow a defendant until conviction.
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Moreover, any such finding by a trial court does not create an
impermissible comment upon the evidence or a predetermination of guilt.
A finding that the proof of guilt is sufficiently evident to deny bail does not
amount to a finding of guilt beyond a reasonable doubt and does not
indicate bias on the part of the court. Therefore, [the] [D]efendant’s request
for this court to conclude the statute is unconstitutional and rescind its
previous order denying bail is, hereby, DENIED.
Our courts are charged with upholding the constitutionality of statutes whenever
possible. State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007). When analyzing the
constitutionality of a statute, we begin with the presumption that the statute is
constitutional. Id. (citing Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)). “[A]n
as ‘applied challenge’ to the constitutionality of a statute is evaluated considering how it
operates in practice against the particular litigant and under the facts of the instant case,
not hypothetical facts in other situations.” State v. Crank, 468 S.W.3d 15, 24 n.5 (Tenn.
2015) (quoting City of Memphis v. Hargett, 414 S.W.3d 88, 107 (Tenn. 2013)) (internal
quotation marks omitted). The constitutional interpretation of a statute is a question of
law which we review de novo. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009).
Upon review, we conclude that the trial court did not err in determining that the
bail statute was constitutional as applied to the Defendant. As previously noted, section
40-11-102 states, as relevant here, that “[b]efore trial, all defendants shall be bailable by
sufficient sureties, except for capital offenses where the proof is evident or the
presumption great.” Tenn. Code Ann. § 40-11-102. We agree with the trial court that a
trial court’s conclusion that the proof of the defendant’s guilt is “evident” for purposes of
a bail hearing “does not create an impermissible comment upon the evidence or a
predetermination of guilt[]” because “[a] finding that the proof of guilt is sufficiently
evident to deny bail does not amount to a finding of guilt beyond a reasonable doubt and
does not indicate bias on the part of the court.” The Defendant is not entitled to relief on
this ground.
XII. Violations of the Trial Court’s Order of Sequestration
The Defendant asserts that he is entitled to a new trial due to the violation of the
trial court’s order of sequestration and due to jurors’ exposure to “unknown contacts and
outside information.” The Defendant contends that juror separation occurred when: (1)
jurors played card games in other jurors’ hotel rooms and used the hotel exercise room;
(2) jurors were allowed to make phone calls to family members; (3) jurors met with
family members on Sundays; and (4) jurors came into contact with “unidentified persons”
at the hotel breakfast buffet each morning. Additionally, the Defendant contends that
“jurors were exposed to prejudicial ‘facts’ about [the Defendant] and his family not in
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evidence.” The State responds that the Defendant is not entitled to relief because he
failed to show that the jurors were separated or exposed to extraneous information.
A. Jury Sequestration
In criminal prosecutions in which a jury is sequestered, the trial court “shall
prohibit the jurors from separating at times when they are not engaged upon actual trial or
deliberation of the case.” Tenn. Code Ann. § 40-18-116 (2010). The purpose of the
sequestration rule is to protect juries from outside influences in order to ensure that the
jurors will base their verdict only upon evidence presented at trial and, thus, preserve a
defendant’s right to a fair trial and an impartial jury. State v. Bondurant, 4 S.W.3d 662,
671 (Tenn. 1999). However, the sequestration rule does not literally require each juror to
remain in the presence of the other jurors at all times; rather, the “real test is whether a
juror passes from the attendance and control of the court officer.” Id.
Once a jury separation has been shown by a defendant, the State then has the
burden of showing that such separation did not result in prejudice to the defendant. State
v. Jackson, 173 S.W.3d 401, 410 (Tenn. 2005) (citing Gonzales v. State, 593 S.W.2d 288,
291 (Tenn. 1980)). “It is the opportunity of tampering with a juror, afforded by the
separation which constitutes the ground for a new trial, but if such separation afforded no
such opportunity, there can be no cause for a new trial.” Gonzales, 593 S.W.2d at 291
(quoting Cartwright v. State, 80 Tenn. 620, 625 (1883)) (internal quotation marks
omitted). If the State fails to satisfy its burden of showing that the separation did not
result in prejudice to the defendant, then a new trial is required. Bondurant, 4 S.W.3d at
672 (citation omitted). A mere possibility of a separation, though, is insufficient to place
the burden upon the State to show lack of prejudice. State v. McClain, 667 S.W.2d 64,
66 (Tenn. 1984). A defendant must show that an actual separation occurred. Id.
1. Playing cards and using the hotel exercise room
Upon review, we conclude that the Defendant has failed to show a jury separation
based on jurors’ playing cards and using the hotel exercise room. First, the card games
are not separations because there is no indication that anyone other than one or more of
the jurors was in the hotel room during the games. As noted by the trial court in
addressing this issue, the jury was sequestered in a hotel where court officers were on
duty twenty-four hours a day, and there was a camera monitoring the activities of the
jurors. At most, the jurors’ meeting for card games raises a concern that jurors might
engage in premature deliberations; however, Ms. Edwards testified that jurors were “very
careful” not to discuss the trial while playing cards. As for jurors’ use of the hotel
exercise room, the record reflects that the jurors were accompanied by court officers at all
times while exercising and that jurors had no contact with third parties. Because no juror
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passed “from the attendance and control of the court officer,” the Defendant has not
established a jury separation during card games or during the use of the exercise room.
Bondurant, 4 S.W.3d at 671.
2. Making phone calls
At the end of the first day of trial, the trial court provided the jury with thorough
instructions regarding its sequestration. Within these instructions, the trial court stated,
“[Y]ou’re not gonna have your cell phone. . . . You’re not gonna have any way to
communicate outside except by the telephone that they have available for you to use.”
The Defendant did not raise an objection to the jurors’ making telephone calls at the time
but raised it as an issue in his motion for new trial. During the motion for new trial
hearing, eleven court officers and five jurors testified. The evidence established that,
during the course of trial, jurors were allowed to make telephone calls to family
members. The jurors were not allowed cell phones and the telephones in their hotel
rooms were removed. Under the supervision of court officers, jurors made telephone
calls one at a time inside a hotel room. Court officers logged the jurors’ calls, including
the name of the juror, the person called, and the subject of each call. During jurors’
telephone calls, court officers stood within two feet of the jurors and heard one full side
of the conversation. The State introduced as an exhibit an extensive call log, which
contained a description of the topic of the jurors’ conversation for each telephone call.
From our review, it appears that panels of this court have addressed this issue on a
few occasions, with varying results. In State v. Tracey Pendergrass, No. 03C01-9608-
CC-00310, 1997 WL 760724, at *7-9 (Tenn. Crim. App. Dec. 11, 1997), perm. app.
denied (Tenn. Sept. 21, 1998), the defendant argued that the trial court abused its
discretion when it refused to grant the defendant’s motion for mistrial after four jurors on
the sequestered jury were allowed to use the telephone during the jury’s deliberations to
make arrangements for staying over another night. During a hearing on the motion, the
three court officers who had taken the jurors to make their telephone calls testified. Id. at
*8. One of the officers testified that he “did not hear any portions of the conversations”
while the other court officers testified that they “did not know what was being said on the
other end of the telephone conversations.” Id. The trial court determined that there had
not “been anything improper” and that there was no “prejudice to the defendant as far as
the activities of the jury.” Id. Upon review, this court concluded that a jury separation
had occurred. Id. The court, however, concluded that the trial court had used an
erroneous test in resolving the issue and remanded the matter to the trial court for an
evidentiary hearing, in which the State would be allowed the opportunity to show that the
communications to each juror were “upon subjects not involving the trial and that no
impressions other than those drawn from the testimony were made upon the juror’s
mind.” Id. at *8-9.
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In State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, 2002 WL
1400059, at *185-86 (Tenn. Crim. App. June 28, 2002), perm. app. denied (Tenn. Feb.
18, 2003), the court again addressed this issue when the defendant asserted that a jury
separation had occurred when sequestered jurors were allowed telephone contact with
family members. However, this court concluded that allowing the jurors to call their
families in the presence of a court officer was not error. Id. at *186. Citing Bondurant,
the court reasoned that the trial court specifically instructed the jurors and the court
officers that any phone calls would occur in the officer’s presence, and there was no
evidence in the record that any juror “passed from the attendance and control of the court
officer.” Id.
Recently, in State v. Tony Edward Bigoms, No. E2015-02475-CCA-R3-CD, 2017
WL 2562176, at *17 (Tenn. Crim. App. June 7, 2017), no perm. app. filed, multiple
members of the sequestered jury made telephone calls throughout the defendant’s trial,
but a court officer was in the room with the jurors when the telephone calls were made.
Noting the factual similarities with Tracey Pendergrass, Judge Thomas concluded that a
jury separation had occurred. Id. Judge Thomas noted that the telephone calls were
made in groups of three and four jurors with all of the conversations occurring at the
same time and that, “[m]ore importantly, the court officers were able to hear only the
jurors’ side of the conversations and did not hear what the outside persons said to the
jurors.” Id. However, Judge Montgomery wrote a separate concurring opinion, in which
Judge Easter joined. Id. (Montgomery, J., concurring). Judge Montgomery concluded
that no jury separation occurred when jurors called family members in the presence of
court officers, reasoning:
The jurors in the present case remained within the custody and
control of court officers at all times relevant to the telephone calls. The
court officers were present, and the jurors were in the presence of other
jurors during the calls. The calls were brief, and what the jurors said could
be heard by the court officers. The jurors were not allowed to keep their
cell phones during the trial, and their only opportunity to use them was
brief, supervised, and communal. Neither the testifying court officers nor
the jury foreman had any indication that any information relevant to the
trial had been received during the telephone calls and, in fact, all
indications were to the contrary. In my view, the circumstances and
environment in which the calls were made created no meaningful
opportunity for a violation of the rule of sequestration to occur, and no
evidence shows that one did, in fact, take place.
Id.
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We are persuaded by the rationale in Judge Montgomery’s concurring opinion in
Tony Edward Bigoms and conclude that the Defendant has not established a separation
based on the jurors’ phone calls to family members. See also Thomas Dee Huskey, 2002
WL 1400059, at *185-86. In this case, the trial court specifically instructed the jurors
and the court officers that telephone calls would occur in the officer’s presence, and the
Defendant did not object. Moreover, the record shows that the jurors remained within the
custody and control of court officers at all times relevant to the telephone calls. Court
officers allowed jurors to make the calls, one at a time, through the use of a designated
hotel room telephone. The calls were short and were to family members only. Court
officers logged each call, noting the name of the juror, the person called, and the subject
of the call. The court officers were instructed to stand within two feet of jurors during the
telephone calls and to listen to the jurors’ conversations. From their vantage point, court
officers could hear one full side of the conversation and could observe the jurors’
demeanor and tone of voice. At the motion for new trial hearing, the court officers who
supervised the phone calls testified that there was never any indication that information
relevant to the trial had been received by the jurors during the phone calls. We conclude
that the evidence does not establish that any juror “passed from the attendance and
control of the court officer.”16 Bondurant, 4 S.W.3d at 671.
Even if the Defendant had established a separation based on the jurors’ telephone
calls to family members, we would conclude that the State met its burden of showing that
such separation did not result in prejudice to the Defendant. In addressing the issue of
juror separation, the trial court found that there was “no basis to believe that the jury ever
received any extraneous information about this trial[,]” and the record supports this
finding. Each of the court officers who supervised the jurors’ telephone calls testified
that they were close enough to hear the jurors’ conversations, and there was no indication
that the jurors’ received information about the trial during the calls. The phone call log
shows that the topics of conversation between the jurors and family members consisted of
general matters such as jurors needing supplies and jurors checking on children or other
family members. Additionally, five jurors testified that their telephone calls were
monitored and that they did not discuss anything related to the Defendant’s trial during
the calls. Consequently, any jury separation did not result in prejudice to the Defendant,
and the Defendant is not entitled to a new trial on this basis. See Bondurant, 4 S.W.3d at
672.
3. Meeting with family members on Sundays
16
Nevertheless, we agree with Judge Thomas’s admonition in Tony Edward Bigoms that “the
better practice would be to have the jurors make phone calls one at a time in the presence of a court
officer and on speaker phone so the officer can hear both sides of the conversation.” 2017 WL 2562176,
at *17.
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During the three-week trial, jurors were allowed two family member visits. The
guidelines for the visits were “very strict,” and jurors were told that, if they were caught
discussing the case with family members, the trial would end. The visits were held in a
confined space, and jurors and family members were supervised by multiple court
officers. The court officers patrolled the designated visitation area, listening in on the
conversations taking place between jurors and family members, and from the record there
is no indication that jurors visited with family members outside the designated area.
Officers could “understand what [jurors] were saying enough to know what they were
and were not talking about,” and they never heard jurors and family members discussing
the Defendant’s case. Because no juror passed “from the attendance and control of the
court officer,” the Defendant has not established a jury separation during family member
visitations. Bondurant, 4 S.W.3d at 671; see e.g., Tony Edward Bigoms, 2017 WL
2562176, at *18 (finding no jury separation when jurors and their family members were
in the same room with the doors locked, three to four court officers observed their
conversations, and jurors were instructed not to discuss the trial with family members);
James Dellinger and Gary Wayne Sutton v. State, No. E2004-01068-CCA-R3-PC, 2006
WL 1679595, at *23 (Tenn. Crim. App. June 19, 2006) (concluding that jurors were not
outside the attendance and control of the court officers when the family visitation was
confined to one large room and there was no evidence that jurors left the designated
area), perm. app. denied (Tenn. Oct. 30, 2006).
4. Coming into contact with “unidentified persons” at hotel breakfast buffet
Testimony at the motion for new trial hearing established that jurors ate breakfast
every morning at the hotel where they were sequestered. Although there would typically
be a few hotel guests eating at the same time, court officers were in the breakfast room
supervising jurors at all times. Jurors sat at tables with other jurors, and there is no
indication in the record of any interaction with third parties in the room. Because the
record does not support the Defendant’s claim of a jury separation during breakfast, he is
not entitled to relief.
B. Outside Influence
“A party challenging the validity of a verdict must produce admissible evidence to
make an initial showing that the jury was exposed to extraneous prejudicial information
or subjected to an improper outside influence.” State v. Adams, 405 S.W.3d 641, 651
(Tenn. 2013). “Extraneous prejudicial information” encompasses “the form of either fact
or opinion that was not admitted into evidence but nevertheless bears on a fact at issue in
the case,” and improper outside influence is considered “any unauthorized ‘private
communication, contact, or tampering directly or indirectly, with a juror during a trial
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about the matter pending before the jury.’” Id. at 650-51 (quoting Remmer v. United
States, 347 U.S. 227, 229 (1954)). “[W]hen it has been shown that a juror was exposed
to extraneous prejudicial information or subjected to improper influence, a rebuttable
presumption of prejudice arises, and the burden shifts to the State to explain the conduct
or demonstrate that it was harmless.” Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005)
(citing Blackwell, 664 S.W.2d at 689).
In determining whether the State has rebutted the presumption of prejudice, trial
courts should consider the following factors: (1) the nature and content of the
information or influence, including whether the content was cumulative of other evidence
adduced at trial; (2) the number of jurors exposed to the information or influence; (3) the
manner and timing of the exposure to the juror(s); and (4) the weight of the evidence
adduced at trial. Adams, 405 S.W.3d at 654. No single factor is dispositive; rather, trial
courts should consider all of the factors in light of the ultimate inquiry—“whether there
exists a reasonable possibility that the extraneous prejudicial information or improper
outside influence altered the verdict.” Id.
On appeal, the Defendant contends that jurors were exposed to “prejudicial ‘facts’
about [the Defendant] and his family not in evidence.” The Defendant’s claim is based
on Juror Johnson’s testimony that Juror Bennett told the jury that the Defendant’s
“granddaddy was a big farmer who had money, [] that he had been known for buying his
family members out of trouble with his money[,]” and that the Defendant’s “granddaddy
was paying for his legal fees.” Juror Bennett, however, recalled the conversation
differently. She testified that she mentioned during deliberations that a member of the
Defendant’s family was “a well[-]known farmer in Lake County.” She explained:
I had said that I had known his grandmother, Miss Billie, for several
years, and I hated that she was having to go through what she was having to
go through. And that’s the only thing I remember ever saying about that.
Juror Bennett testified that she did not recall saying that the Defendant’s grandfather
“always bought those boys out of trouble[.]” When asked about the issue, Juror Vestal
testified that she did not recall Juror Bennett saying anything about the Defendant’s
grandfather.
In addressing this issue, the trial court found that there was “no basis to believe
that the jury ever received any extraneous information about this trial,” and we agree.
The statement attributed to Juror Bennett does not qualify as “extraneous information”
warranting a new trial. In State v. David W. Gaddis, No. E2011-00003-CCA-R3-CD,
2012 WL 2370636, at *14 (Tenn. Crim. App. June 25, 2012), no perm. app. filed, this
court rejected a defendant’s claim that a juror’s statement concerning a defendant’s
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reputation in the community qualified as “extraneous information” and demonstrated
“juror bias.” In reaching the conclusion, the court reasoned:
It is true that one of the questions asked by the jury—inquiring as to
whether any bias might arise from a juror having allegedly stated “if you
had known David Gaddis you’d know he always gets a designated
driver”—might imply that at least one juror was aware of the defendant’s
reputation within the community. However, although notions of
“extraneous information” may encompass “a juror’s personal knowledge of
the defendant’s prior criminal record or arrest,” we are unwilling to extend
that principle so far as to encompass a juror’s personal knowledge of a
defendant’s general reputation in the community, especially in absence of
any allegation that the juror concealed the information during voir dire. If
“mere exposure to news accounts of [an] incident [is] insufficient to
establish bias,” and “jurors can have knowledge of the facts surrounding the
crime and still be qualified to sit on the jury,” then a mere allegation that a
juror may have possessed prior awareness of the defendant’s general
reputation in the community, without more, is insufficient to provide a
basis for maintaining a juror bias challenge.
Id. (internal citations and footnote omitted).
In this case, Juror Bennett’s statement appears to have come from her general
knowledge of the Defendant and his family before trial. It does not qualify as
“extraneous information” warranting a new trial. Moreover, there is no indication that a
third party imparted this knowledge to Juror Bennett during the course of the trial.
Instead, it appears that Juror Bennett brought this information with her into voir dire, and
the Defendant accepted her as a juror. Accordingly, he is not entitled to relief. See State
v. Crenshaw, 64 S.W3d 374, 393-94 (Tenn. Crim. App. 2001).
XIII. Cumulative Error
Finally, the Defendant contends that cumulative error deprived him of due process
and a fair trial and necessitates reversal. We have already concluded that the Defendant
is entitled to a new trial. However, we will discuss this issue because we also conclude
that the cumulative effect of the errors in this trial require reversal.
The cumulative error doctrine recognizes that there may be many errors
committed in trial proceedings, each of which constitutes mere harmless error in isolation
but “have a cumulative effect on the proceedings so great at to require reversal in order to
preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn.
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2010). To warrant review under the cumulative error doctrine, there must have been
more than one actual error during the trial proceedings. Id. at 77.
“Reversals for cumulative error are rare.” State v. Herron, 461 S.W.3d 890, 910
(Tenn. 2015). For cases that warrant assessment under the cumulative error doctrine, our
supreme court explained:
Of necessity, claims under the cumulative error doctrine are sui
generis. A reviewing tribunal must consider each such claim against the
background of the case as a whole, paying particular weight to factors such
as the nature and number of the errors committed; their interrelationship, if
any, and combined effect; how the [trial] court dealt with the errors as they
arose (including the efficacy—or lack of efficacy—of any remedial efforts);
and the strength of the [State’s] case. The run of the trial may also be
important; a handful of miscues, in combination, may often pack a greater
punch in a short trial than in a much longer trial.
Hester, 324 S.W.3d at 76 (quoting United States v. Sepulveda, 15 F.3d 1161, 1196 (1st
Cir. 1993)).
In this case, we have identified five errors that occurred during the course of the
Defendant’s trial, specifically: (1) the trial court’s exclusion of the Defendant’s testimony
about Mr. Hill’s threat to him the morning after the murders as hearsay; (2) the trial
court’s prohibiting the Defendant’s expert witness, Ms. Johnson, from testifying that the
crime scene was consistent with multiple perpetrators under Rule 702 and 703; (3) a
constitutional violation of the Defendant’s right to present a defense by excluding Ms.
Johnson’s testimony on this issue; (4) the State’s improper interference with the
Defendant’s gang expert, Lieutenant Carter; and (5) prosecutorial misconduct in closing
argument based on General Bivens’ statement that defense counsel and his staff had
made up the Defendant’s story in the four years between the offenses and trial.
At trial, the defense theory was that Mr. Hill and the “three Mexicans” committed
the murders and that the Defendant was acting under duress when he drove Mr. Hill and
the “three Mexicans” to and from the victims’ residence and when he sold the victims’
stolen property after the murders. In order to establish the defense of duress, the
Defendant needed to testify about the threats made to him, including those made by Mr.
Hill the day after the murders which, according to the Defendant, caused him to sell the
victims’ property. Ms. Johnson’s expert testimony would have established that the crime
did not occur in the manner asserted by the State and would have supported the
Defendant’s claim that multiple assailants killed the victims. Following the exclusion of
Ms. Johnson’s testimony, the State argued repeatedly during closing argument that there
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was no evidence corroborating the Defendant’s testimony. Then, when the prosecutor
improperly commented that defense counsel and his staff made up the Defendant’s story,
there were no remedial measures provided by the trial court. Finally, the State’s
interference with the Defendant’s gang expert, Lieutenant Carter, who had agreed to
testify that the manner in which the victims were killed was consistent with the modus
operandi of the Mexikanemi, was inexplicable and improper. His testimony would have
offered further support for the Defendant’s testimony that he did not kill the victims.
We have considered these claims against the background of the case as a whole,
we note that in many aspects the State’s case against the Defendant was strong: the
Defendant was found with the victims’ stolen property after the murders; a knife
containing the victims’ blood was found in the Defendant’s car; Mr. Shell’s blood was
found on the Defendant’s shirt; and upon his arrest, the Defendant was able to describe
details of the crime scene not publically known. However, the excluded testimony would
have corroborated the Defendant’s testimony, further established his defense of duress,
and challenged many aspects of the State’s proof. Therefore, we conclude that, even if
the Defendant’s convictions were not reversed on the basis of any one error, the sum of
these errors calls into question the reliability of the verdict and necessitates a new trial.
Conclusion
For the aforementioned reasons, the judgments of the trial court are reversed, and
the case is remanded for a new trial.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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