State of Tennessee v. Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen
M2015-02375-CCA-R3-CD
| Tenn. Crim. App. | Dec 7, 2016Background
- On Feb. 9, 2013 in Manchester, defendant Kevin Patterson shot Scott Wilfong in the hip and struck Brandi Frazier, who was thrown over a car hood; both victims identified Patterson.
- Patterson had a prior felony history (stipulated) and fled to Las Vegas; he was arrested about 1.5 years later.
- Jury convicted Patterson of attempted second-degree murder, aggravated assault, and possession of a firearm by a convicted felon.
- At sentencing the trial court found Patterson a repeat violent offender and imposed life without parole for attempted second-degree murder and concurrent five-year terms for the other convictions.
- On appeal Patterson challenged (1) denial of jury sequestration, (2) seating jurors who'd served on a criminal petit jury the prior week, (3) prosecutor's closing argument, and (4) sufficiency of evidence for attempted second-degree murder; the State’s procedural compliance with repeat-violent-offender notice was also addressed by the Court sua sponte.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury sequestration refusal | State: trial court has discretion; no abuse shown | Patterson: successor judge should have honored prior sequestration order | Affirmed — appellant waived record of original proceeding; court found no abuse of discretion and no supporting evidence presented by defendant |
| Seating jurors who recently served on a criminal petit jury | State: no contemporaneous objection; waiver | Patterson: those jurors created unfairness | Waived — no contemporaneous objection and not raised in new-trial motion; issue not considered |
| Sufficiency of evidence for attempted second-degree murder | State: evidence (pointing gun, firing) supports knowing attempt | Patterson: shot may have been accidental | Affirmed — viewed in light most favorable to State, jury could infer intent; conviction supported |
| Prosecutor closing argument claiming awareness equates to attempted second-degree murder | State: no contemporaneous objection; harmless if error | Patterson: argument misstated law (result-of-conduct nature of second-degree murder) | Waived and harmless — failure to object; even if improper, overwhelming evidence renders any error harmless |
| Repeat violent offender notice and life-without-parole sentence | State: filed a “Notice of Prior Convictions” but did not specify qualifying prior convictions or dates of incarceration as required | Patterson: (relied on insufficiency of State notice) | Reversed on plain error — notice failed to comply with T.C.A. § 40-35-120(i)(2); life w/o parole vacated; remanded for resentencing within appropriate statutory range (State may proceed under other enhancement statutes consistent with its January 1, 2015 notice) |
Key Cases Cited
- State v. Smith, 418 S.W.3d 38 (Tenn. 2013) (discusses sequestration as judge's discretion in non-capital cases)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of evidence)
- State v. Cooper, 321 S.W.3d 501 (Tenn. 2010) (repeat violent offender notice requirement; notice must comply pretrial and specify qualifying priors and incarceration dates)
- State v. Ballard, 855 S.W.2d 557 (Tenn. 1993) (appellant's duty to prepare adequate record on appeal)