Kevin Batts' Weekly Court Report

The Court Report

February 12-16, 2007

Kevin Batts

EVIDENCE/DEADLY WEAPONS

State v. Anthony Bonds - W2006-00501-CCA-R3-CD (Shelby County)

Affirms attempted especially aggravated robbery. Evidence sufficient. Proof established that the Appellant approached the victim with a 2 x 4 in his hand and demanded money. When the victim refused to give him money, the Appellant proceeded to beat the victim multiple times with the 2 x 4, which the Court of Criminal Appeals has found to be a deadly weapon. The evidence also established that the victim suffered serious bodily injury as a result of the beating. It was established that the Appellant suffered broken ribs, was unconscious for nine days, and spent seventeen days in the hospital intensive care unit.

EVIDENCE/CONSOLIDATION/CONFESSION
State v. Barry Brown - W2005-01539-CCA-R3-CD (Shelby County)

Affirms two counts of aggravated robbery. This is a "bump and rob" case, where defendant was convicted of robbing multiple victims after wrecking into them. Two incidents involving separate victims were consolidated and tried together because they involved what the trial court deemed a common scheme or plan. Evidence sufficient. Both victims testified that the defendant used his vehicle to cause an accident. He then approached the victims' vehicles with an accomplice. During each incident, one assailant brandished a weapon, a knife in the first incident and a pistol in the other. Defendant took jewelry and money from the first victim and took a cell phone and other items from the second victim. Defendant argues that because the gun was incapable of being fired, it cannot be considered a deadly weapon. However, the standard in aggravated robbery is that the weapon used is "fashioned to lead the victim to reasonably believe it to be a deadly weapon." The defendant brandished the weapon at night and pointed it at the victim in a manner to make him believe that it was capable of causing him harm if he resisted. Defendant argues that there was no testimony regarding his use of a weapon in the robbery involving the knife. However, victim testified that the defendant removed the jewelry while his accomplice held the knife to the victim's throat. Defendant's involvement in that robbery meets the statutory definition of aggravated robbery in that the victim was deprived of her property by the defendant while his accomplice brandished a knife. Defendant offers no authority to support his position that he held less responsibility for this aggravated robbery because he was not the person holding the knife. Affirms trial court's consolidation of two of the offenses. Trial court found that a distinct design or unique method was used in committing the offenses. These crimes contained such unusual particularities that a reasonable person could believe it unlikely that different persons committed them. The car employed by the defendant was registered to his brother who was in jail at the time of the incidents. This evidence supports the identification of the defendant because it was the defendant's brother's car and, because the brother was in jail, the defendant had access to the car for use in these crimes. Trial court made sufficient inquiry into the issue of whether evidence of one offense would be admissible in a trial of the other offense if they were to remain severed. Trial court did not err in allowing testimony regarding defendant's statement to police that he committed only two of the robberies and that someone else was responsible for the remainder of them (he did not specify to the officer which two robberies he committed). Defendant's statement is relevant and falls under an exception to the hearsay rule. Trial court found that the fact the defendant said he was responsible for two robberies was probative and decided to allow the State to enter the portion of his statement regarding his responsibility but excluded the portion of the statement where he acknowledged that he knew about other robberies.

RIGHT TO CONFRONTATION
State v. Douglas Sims - E2006-00380-CCA-R3-CD (Hamblen County)

Affirms aggravated robbery. The trial court did not err by admitting preliminary hearing testimony into evidence. The appellant argues that he was not allowed to question the victim fully at the preliminary hearing. However, the trial court concluded that the defense's cross-examination of the victim was detailed and articulate. Although the trial court noted that the general sessions court limited counsel's cross-examination of the victim "in some respects," the court ultimately refused to hold that Crawford's prior opportunity for cross-examination requirement was not met. The appellant thoroughly questioned the victim about his activities on the night of the crime and why he had a large amount of money with him. Even if the admission of the victim's preliminary hearing testimony violated the appellant's right to confrontation, the error was harmless. A police officer testified at trial that he spoke with the victim soon after the robbery. Without any objection from the defense, the officer testified about the victim's version of the crime. The evidence at trial also established that less than two hours after the robbery, the appellant was arrested with over thirteen hundred dollars in his pocket. He later admitted to officers that he robbed and cut the victim.

MIRANDA/PROBABLE CAUSE/CORROBORATION

State v. Jimmy D. Pickett - M2005-02434-CCA-R3-CD (Franklin County)

Affirms first degree premeditated murder and especially aggravated robbery. Case involves the shooting and subsequent robbery of the victim while he was asleep in his bed. The trial court properly denied the appellant's motion to suppress his statements to investigators. Agent testified that he gave the appellant Miranda warnings when officers arrested him and that he re-Mirandized the appellant several days later before the appellant's interview. Witnesses testified that the appellant agreed to speak with them and that he was alert and did not appear to be under the influence of anything. Days later, appellant sent word through his brother and a corrections officer that he wanted to speak with the investigator. Officers took the appellant to the investigator's office and gave the appellant Miranda warnings, and the appellant stated that he wanted to speak without his attorney present. Because the appellant initiated the contact, his right to counsel was not violated. Officers had probable cause to arrest the appellant. Officer spoke with the victim's sister, and she told him that the appellant and the victim had been "hanging out together" and that the victim was missing. After speaking with her, Officer spoke with the appellant. Officer noticed that the appellant was nervous, and the appellant admitted seeing the victim three days before the victim failed to report to work. Officer discovered the victim's decaying body in his bed. Neighbors told Investigator that the appellant had been living with the victim. Neighbor reported that she last saw the victim alive with the appellant. Investigator discovered that the appellant had left the home with the back door standing open and a cooler full of ice and beer in a pickup at the house, indicating a hasty retreat and resulting in a legitimate inference that the appellant was involved in the victim's death. After searching for the appellant, officers found him hiding in a tractor trailer's sleeper berth which had a temperature of one hundred ten degrees. The evidence sufficiently corroborated appellant's confessions. Appellant told officers he stood in the doorway of the victim's bedroom and shot the sleeping victim with a sixteen-gauge shotgun. Appellant covered the victim with a sheet that had been on the floor, picked up the spent shotgun shell, and carried the victim's pants to the living room. There, he took money out of the victim's wallet. He left the shotgun in the Bean's Creek area and abandoned the victim's wallet in a creek in Moore County. Officers found the victim's decomposing body in bed and covered with a clean sheet, and a pair of pants were in the living room. Officers did not find a spent shotgun shell in the bedroom. They went to the Bean's Creek area and located the shotgun and unused shells, and police found the victim's wallet in Moore County.

CONFESSION/EVIDENCE/CONSECUTIVE SENTENCING
State v. Robert T. Downey - M2005-02335-CCA-R3-CD (Montgomery County)

Affirms especially aggravated robbery, conspiracy to commit especially aggravated robbery, aggravated burglary, and reckless endangerment. Remanded for new sentencing hearing on the issue of consecutive sentencing. Trial court did not err in ruling that the defendant's written statement was voluntary and admissible at trial. Officers told the appellant that his co-defendants were in custody and were telling their version of the story. Investigator told the appellant that giving a statement could not hurt him and could possibly help him. Investigator explained that the police could explain the appellant's cooperation to the district attorney's office in exchange for possible leniency in bond or sentencing. The Court of Criminal Appeals has previously found that such statements were not sufficient to overbear an accused's will so as to render a statement involuntary. Appellant's request to give his written statement at a later time was not a clear and unequivocal expression that he wished to remain silent. The appellant's comment indicates that he was willing to continue his statement, just at another time. Evidence supports conviction for especially aggravated robbery. Proof shows co-defendant Brown approached the appellant about robbing the victim. Appellant agreed to commit the robbery and recruited Green to help him. Brown drove the men to victim's residence. Appellant, carrying a metal flashlight and accompanied by Green, entered the residence. When he encountered the victim in his bedroom, the appellant hit the victim on the head six times using the flashlight. Appellant and Green took over $3000, a jar full of change, and the victim's television from the residence. Appellant, Green, and Brown left the victim at the residence and later split the proceeds from the robbery. Victim's son found him the next day, severely beaten. The victim was hospitalized for over a month. At the time of trial, the victim's head was still misshapen, and he continued to suffer from confusion. The metal flashlight was employed as a "deadly weapon." A deadly weapon is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Objects other than traditional weapons may, depending on their use, be deadly. Remanded for a new sentencing hearing regarding the propriety of consecutive sentencing. The trial court summarily imposed consecutive sentencing due to the appellant being a dangerous offender; the court did not explain its finding nor did it make the requisite Wilkerson findings that the sentences are necessary in order to protect the public from the appellant's further misconduct and the terms are reasonably related to the severity of the offenses. There is no evidence in the record that the trial court considered the Wilkerson factors before ordering consecutive sentencing.

PCR/IAC/LESSER-INCLUDED/JURY
Harvey Phillip Hester v. State - E2005-01607-CCA-MR3-PC (Hamilton County)

The post-conviction court erred by concluding the petitioner received the ineffective assistance of counsel. Convictions were for two counts of second degree murder and one count of attempted second degree murder. The defense's theory at trial was that physical damage to the petitioner's and the victims' cars did not support the State's claim that the petitioner rammed the victims' car, causing it to wreck. The defense cross-examined the State's witnesses in an effort to develop this defense and argued at length during closing statements that while the petitioner had wanted to stop the victims, he either did not hit their car at all or did not hit it with enough force to cause it to spin out of control. Officer that inspected the petitioner's car acknowledged on cross-examination that there was no damage to the car's front bumper. At the post-conviction hearing, co-counsel testified that photographs of both cars supported the defense's theory, and petitioner testified that lead counsel believed there was a good chance the jury would return a not-guilty verdict. Counsel presented a reasonable defense in light of the State's evidence and developed that defense. Counsel's decision to argue during closing statements that the petitioner was guilty of no crime was a strategic decision that should not be second-guessed by a reviewing court. Moreover, the trial court instructed the jury on all of the lesser-included offenses of first degree murder, and the jury obviously considered lesser-included offenses, finding the petitioner guilty of second degree murder. Petitioner has failed to show he was prejudiced by counsel's not arguing he was guilty of a lesser-included offense. During closing arguments, the trial court had to dismiss a juror who was physically ill. The trial court met with counsel in chambers and announced on the record, without the jury in the courtroom, that pursuant to dicta in Bobo, it believed the petitioner could proceed with an eleven-member jury as long as his waiver of a twelve-member jury was "made in writing and with the approval of the court and the consent of the District Attorney General, and that the record should clearly show a voluntary relinquishment of that right." Co-counsel for the defense announced that the petitioner wanted to proceed with an eleven-member jury. The record reflects that the trial court handed the written waiver form to the petitioner and that the petitioner read and signed the form. The trial court informed the petitioner that any verdict would still have to be unanimous and asked the petitioner had no questions about the waiver. The jury returned to the courtroom, the trial court briefly explained why a juror had been dismissed, and closing arguments resumed. The post-conviction court erred by concluding the petitioner's reliance on counsel's unreasonably optimistic assessment of the evidence rendered the waiver of his right to a twelve-member jury involuntary and unintelligent. The trial court verbally informed the petitioner he could waive a twelve-member jury and have an eleven-member jury decide his guilt. The trial court asked the petitioner if that is what he wanted to do and if his attorneys had explained the waiver to him, and the petitioner answered both questions in the affirmative. The trial court also asked the petitioner if he understood he had the right to a mistrial and if he understood he was giving up that right, and the petitioner again said yes. The petitioner knowingly, intelligently, and voluntarily waived his right to a twelve-member jury and is not entitled to post-conviction relief.

EXPERT/SEVERENCE/EVIDENCE/RELEVANCY
State v. Mark A. Schiefelbein - M2005-00166-CCA-R3-CD / M2005-02370-CCA-R10-CO (Williamson County) Affirms seven counts of aggravated sexual battery and one count of especially aggravated sexual exploitation of a minor. The defendant was the victim's gymnastics coach. Any error by the trial court in disallowing defense expert's testimony regarding the victim's medical report is harmless. By its own terms, the medical report indicated that the victim's examination neither confirmed nor ruled out the possibility of any type of sexual contact. While the expert's testimony appears marginally relevant, that assessment goes to the weight, not the admissibility, of his testimony.

The trial court erred in severing mandatorily joined child rape offenses. Criminal Procedure Rule 8(a)(2) provides that a "defendant shall not be subject to separate trials for multiple offenses [qualifying for mandatory joinder] unless they are severed pursuant to Rule 14." Rule 14 provides that either the State or the defendant may obtain a severance of offenses that have been mandatorily joined when "appropriate to promote a fair determination of the defendant's guilt or innocence of each offense." The State's concern that videotapes of the victim might not be probative of the rape charges is insufficient to warrant severance, particularly considering that the defendant opposed the severance, thereby accepting the risk the videotapes might pose to the rape charges. Furthermore, the State has not articulated why a limiting instruction to the jury would not have preserved a fair determination of the defendant's guilt or innocence of each offense. The victim testified that her mother had suspicions about the inappropriate nature of the defendant's contact with the victim, and the State asked the victim if her mother told her of those suspicions to clarify her testimony. The basis of the victim's knowledge about her mother's suspicions is inadmissible as irrelevant to whether the defendant sexually abused the victim. However, because the statement is not central to the case and not damaging to the defendant, the error is harmless. The trial court did not abuse its discretion in allowing the victim's mother's testimony. Her opinion was rationally based on her perception and helpful to a clear understanding of her testimony. The State adequately built a foundation, demonstrating the close relationship between the victim and her mother and the latter's insights into the victim's behavior. Defense counsel ably attacked the victim's credibility on cross-examination and clearly pointed out to the jury that the victim waited months before telling her mother of the abuse. The victim testified that she did not immediately tell her mother because she was afraid that she would get in trouble. The victim's mother's opinion reiterated the victim's testimony.

EVIDENCE
State v. Ronald S. Strick - M2005-01990-CCA-R3-CD (Davidson County)

Affirms theft of property under $500, false imprisonment, and extortion in connection with a fight at a nightclub where defendant was supervising his security company's employees. Victim testified that, as he was leaving a nightclub, he took photos of security guards breaking up an altercation. He claimed that the defendant approached him, asked if he had taken photos of the fight. Victim denied taking the photos, and the defendant handcuffed him and demanded his camera. Victim testified that defendant told him he would turn him over to the police if he didn't relinquish the camera. Victim gave defendant the flash memory disk from the camera to gain his release. Evidence sufficient. The jury heard and was entitled to credit the victim's testimony that he unwillingly relinquished custody of his flash memory disk to avoid arrest. Even if the evidence could be construed that the victim voluntarily gave up the disk at the outset, he clearly did not consent to the defendant's continued possession of his property. Similarly, the jury was entitled to credit the victim's testimony that he was unlawfully handcuffed after denying taking photographs of the fight and after refusing to relinquish possession of his camera. Victim's testimony that he was threatened to be turned over to police for being involved in the fight is sufficient to establish coercion and extortion.

Kevin Batts
Deputy Executive Director
Tennessee District Public Defenders Conference
211 Seventh Avenue North, Suite 320
Nashville, TN 37219-1821
(615) 741-5562