STATE OF TENNESSEE v. MICHAEL RIMMER
No. W2017-00504-SC-DDT-DD
IN THE SUPREME COURT OF TENNESSEE
November 4, 2020 Session; FILED 04/16/2021
Automatic Appeal from the Court of Criminal Appeals; Criminal Court for Shelby County; Nos. 98-01033, 98-01034 Chris Craft, Judge
This
HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J., CORNELIA A. CLARK, and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a concurring opinion.
Paul Bruno (on appeal and at trial), Murfreesboro, Tennessee, and Robert Parris (on appeal and at trial), Memphis, Tennessee, for the appellant, Michael Dale Rimmer.
Herbert H. Slatery III, Attorney General and Reporter; Andree Sophia Blumstein, Solicitor General; Andrew C. Coulam, Senior Counsel; Pamela Anderson and Rachel Sobrero, District Attorneys General Pro Tem, for the appellee, State of Tennessee.
Michael J. Passino, Nashville, Tennessee, for Amicus Curiae Amnesty International, Nashville.
OPINION
FACTUAL AND PROCEDURAL HISTORY
On February 8, 1997, the victim in this case, Ricci Lynn Ellsworth, disappeared from the Memphis Inn in Shelby County. She left behind her purse, her wedding band, her car, and a chaotic and bloody crime scene. Although the victim was a dependable employee and devoted wife, grandmother, mother, and daughter, neither her employer nor her family ever heard from her again. The victim‘s body was never located, and she is presumed dead.
The lengthy procedural history in this case includes two trials and three sentencing hearings. At the first trial in 1998, a jury convicted the Defendant, Michael Dale Rimmer, of first degree murder, aggravated robbery, and theft of property. The Defendant received a sentence of death. The State had also charged the Defendant with first degree felony murder during the perpetration of a robbery (felony murder), but the jury did not return a verdict on that count.
On appeal, the Court of Criminal Appeals affirmed the convictions, but it reversed the death sentence due to numerous errors related to the aggravating circumstances considered by the jury. It remanded the case for a new sentencing hearing. See State v. Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *23 (Tenn. Crim. App. May 25, 2001).
On remand, a second jury imposed the death penalty. On direct appeal, the Court
The Defendant then sought post-conviction relief, alleging ineffective assistance of counsel and prosecutorial misconduct. The post-conviction trial court concluded the Defendant was not entitled to relief on his claims of prosecutorial misconduct. However, it granted post-conviction relief on the ineffective assistance of counsel claims and ordered a new trial and sentencing hearing. The State did not appeal.
In advance of the Defendant‘s second trial, he filed a number of pretrial motions. They included a motion to dismiss the felony murder count, which the trial court denied; a motion to suppress DNA evidence, which the trial court partially denied; and a motion to suppress Rule 404(b) evidence, which the trial court partially denied.
The second trial commenced on April 28, 2016.2 The jury heard evidence that, years earlier, the Defendant and the victim had been in a tumultuous romantic relationship. Though it ended, they remained in contact. In 1989, the Defendant assaulted and raped the victim inside her home. He eventually pled guilty to burglary in the first degree, aggravated assault, and rape. He received a lengthy prison sentence. According to the victim‘s daughter, Tracye Ellsworth Brown,3 and the victim‘s mother, Marjorie Floyd, the victim was too forgiving toward the Defendant after the rape. She continued to interact with him and even visited him in prison.
During his incarceration for rape and assault of the victim, the Defendant met William Conaley. Mr. Conaley was a childhood friend of the victim‘s niece. The Defendant learned the victim and her son had received a sum of money in settlement of a personal injury claim. The Defendant was angry at the victim and felt entitled to a portion of the settlement. The Defendant told Mr. Conaley to tell the victim‘s niece to let the victim know that if he, the Defendant, did not get the settlement money to which he felt entitled, he would kill the victim upon his release from prison. Mr. Conaley relayed the message by letter and in person. According to Mr. Conaley, whenever the Defendant talked about the victim, he would get agitated, sweat, work himself up, wring his hands, and saliva would build up in the corners of his mouth.
During this same incarceration, the Defendant also met Roger Lescure. In 1996, while he and Mr. Lescure were working together in the prison, the Defendant talked to Mr. Lescure about the victim and said he was going to “kill the funky bitch” after his release. The Defendant described to Mr. Lescure how to get rid of dead bodies: “Put them in a barrel and put lime in them, it eats the bones and all up.” Mr. Lescure said that, when the Defendant talked about killing the victim, he got “high strung” and “into talking about it” and would “sort of foam at the mouth.”
After he was released from prison, the Defendant and the victim continued to interact. One afternoon, the Defendant‘s father came home from work to find the Defendant changing the oil in the victim‘s vehicle. The Defendant‘s father got angry that the Defendant was maintaining a relationship
In 1997, the Defendant worked at Ace Automotive Collision Center4 with Howard Featherston5 and James Wilcox. During that time, he commonly wore a baseball cap. According to Mr. Featherston, the Defendant also had a tattoo on his arm.6 In addition to working with Mr. Featherston at the collision center, the Defendant worked on vehicles with Mr. Featherston at Mr. Featherston‘s home. At the time, Mr. Featherston owned a maroon Honda Accord. On January 4, 1997, the Accord was driven away from Mr. Featherston‘s home and was never returned.7
On Friday, February 7, 1997, the Defendant did not have enough money for gas. His coworker at the Collision Center, Mr. Wilcox, followed the Defendant to the gas station and put five dollars’ worth of gas in his car so the Defendant could cash his February 6, 1997 paycheck. On that day, Mr. Wilcox recalled, the Defendant was driving a maroon Honda. He expected the Defendant to repay him the five dollars when he came to work the following Monday, since the Defendant was scheduled to work the week of February 10. However, the Defendant never returned to the Collision Center, not even to pick up his paycheck for the shift he worked on February 7.
Also on Friday February 7, after he left work at the Collision Center, the Defendant went to the home of his brother, Richard Rimmer, in Mississippi. He drank some beer and talked about a date he had planned later that night.
The same night, the victim left the home she shared with her husband, Donald Eugene Ellsworth,8 for her work as a night clerk at the Memphis Inn. She was scheduled to work from 11:00 p.m. to 7:00 a.m. The victim parked her vehicle in the motel parking lot and began her shift, working in an enclosed office in the motel lobby behind a locked door. Her interactions with guests were from behind protective glass, and monetary transactions occurred via a drawer under the glass window; money and credit cards were placed in the drawer and slid under the glass. In the same vicinity, the motel had change and vending machines.
Devata Brown was a guest at the Memphis Inn the night of February 7, 1997. She described the motel as being in a “high traffic” location where drug dealing and prostitution may have occurred.
Around 1:40 a.m. that same night, another motel guest, Dr. Ronald King, went to the vending machine area. He noticed a maroon car pull up and park close to the night entrance. A white man wearing a baseball cap with a scraggly beard and unkempt hair walked into the area behind him and approached the motel‘s check-in
Another guest at the Memphis Inn the evening of February 7, Natalie Doonan, came downstairs to buy cigarettes from a vending machine. She noticed a female night clerk working at a counter behind glass. Around 2 a.m., one or two men walked into the motel lobby where the night clerk‘s office was located; one of the men had a dark complexion and wore his hair in a ponytail. Ms. Doonan finished buying her cigarettes and went back to her room. About thirty minutes later, Ms. Doonan called the night clerk to request a wake-up call. She let the phone ring for ten to fifteen minutes but never got an answer. Ms. Doonan later identified one of the men she saw in the motel lobby as Billy Wayne Voyles.
Around 1:30 or 2:00 a.m. that same night, James Darnell and Dixie Presley drove to the Memphis Inn. Mr. Darnell parked close to the night entrance. He saw a man with a beard and wearing a baseball cap standing behind a maroon Honda parked about four spaces away. In his arms, the man cradled something thick that had been rolled up in a blanket. When the man placed the item in the trunk of the car, the vehicle sank from the weight of the object.
As Mr. Darnell walked toward the night entrance, the man began walking quickly behind him. They approached the night entrance at the same time, so Mr. Darnell opened the door, said “after you,” and let the man go through the door first. As he did, Mr. Darnell noticed the man smelled like alcohol and had blood on his hands. Mr. Darnell walked in behind the man and saw the night clerk‘s door wide open. As Mr. Darnell walked toward the night clerk‘s window, he saw another man standing on the other side of the glass pushing cash out through the drawer under the window. The other man also had blood on his hands. Mr. Darnell quickly turned around and left.
Mr. Darnell later positively identified the man behind the counter as Billy Wayne Voyles. He indicated the Defendant “looks like” the man he let go ahead of him through the night entrance door.
During that time, Raymond Summers was a yard master with CSX Transportation (“CSX“). Under an agreement between CSX and the Memphis Inn, CSX employees stayed at the motel during layovers. Mr. Summers was working early the morning of February 8, and the CSX crew staying at the motel was needed back at the train yard for departure. He called the Memphis Inn night desk around 3:00 a.m. to get in touch with the crew members. When the clerk did not answer, Mr. Summers drove to the motel.
When he arrived, Mr. Summers saw that the night entrance double doors, typically closed and locked, were open. He walked into the office and noticed the register drawer was out and papers were scattered on the floor. He called out and got no answer. He then walked toward the sound of running water. As he went into the employee bathroom, Mr. Summers saw water running in the bathroom sink, blood on the sink basin, and that the toilet seat had been removed. There was blood on the toilet and a bloody towel on the floor.
Mr. Summers left immediately to find help. As he was driving to a nearby service station to notify the police, he saw two Shelby County Sheriff‘s Office (“SCSO“) patrol cars leaving a nearby parking lot. He got the officers’ attention and told
When they arrived at the motel, the SCSO officers secured the scene and contacted Memphis Police Department (“MPD“) dispatch. SCSO officers then notified the motel manager, Linda Spencer, that there was no night clerk at the motel. Ms. Spencer resided in an apartment on the property. She walked to the front of the motel and noticed the night entrance door, normally locked, was open. She went into the employee bathroom and saw blood all over the floor and walls. The toilet lid had been ripped from the toilet. There was an out-of-place glass on the sink, a flashlight in the sink, and a crack in the sink. Once MPD officers arrived, the SCSO officers left.
Ms. Spencer and the MPD officers looked for the victim inside the motel, to no avail. The victim‘s car, however, was still parked in the same spot in the parking lot where it had been all night. Ms. Spencer noticed that all the money had been taken from the register, as well as the money in the lockbox. In total, about $600 was missing. There was blood on the floor of the office and a trail of blood leading from the office to the bathroom. There was a towel on the office floor that did not belong there, and about four or five sets of sheets were missing from a cabinet in the office. The motel office had a security camera, but because there was no videotape in it, Ms. Spencer did not check to see if anyone had tampered with it.
MPD officers took photographs of the crime scene, dusted for fingerprints, collected and tagged evidence, and completed paperwork. The items they collected included the victim‘s wedding band, which she normally wore every day. All items with blood on them were gathered as evidence. Samples were taken from blood on the bathroom floor, the top of the commode, the frame of the door to the snack room, the frame of the door to the west exit, and the door facing the security window. The lid of the toilet was covered in blood and damaged as though it had been used to beat somebody; the toilet lid and a few other items were chemically processed for fingerprints.
Mark Goforth worked as a security guard at the neighboring Super 8 Motel. Like Ms. Brown, Mr. Goforth described the Memphis Inn as a place known for prostitution and drugs. In his work as a security guard, Mr. Goforth often walked the perimeter of the Super 8 property, and in doing so he had gotten to know the victim. Working early the morning of February 8, Mr. Goforth saw MPD officers at the Memphis Inn, so he walked over to the motel. Once he got there, he observed a lot of blood, including a bloody handprint on the counter. Mr. Goforth briefly spoke with the officers and left.
While working at the Super 8 Motel, Mr. Goforth sometimes saw a white man in his early thirties with brownish-blonde hair and stubble at the Memphis Inn talking and laughing with the victim inside her office. He last saw the man a couple days before the victim‘s disappearance.
Mr. Goforth was shown a composite sketch of two suspects, one wearing a baseball hat and one without a hat. Mr. Goforth identified the man in the hat as a construction worker who frequently stayed at the Memphis Inn while in town to work on a nearby highway construction project.
Around 2:30 a.m. the night of the victim‘s disappearance, MPD officers went to the victim‘s home and awakened her husband, Donald Eugene Ellsworth, to see if the victim was there. He told them he had not seen the victim since she left for work earlier that night, so the officers asked him to give a statement. Mr. Ellsworth then
The morning of February 8, the Defendant returned to the home of his brother, Richard Rimmer. He was driving a wine-colored Honda Accord.9 The brother‘s home was in a wooded area, close to a pond. When he arrived, the Defendant was wearing muddy white tennis shoes; Richard Rimmer made him remove the shoes and wash them in the bathroom. The Defendant seemed tired and unfocused, “like he was out in left field.” The Defendant asked his brother Richard if he could lay on his floor to rest; Richard said no and asked him to leave.
The Defendant‘s brother Richard worked as a carpet and upholstery cleaner. The Defendant asked his brother to clean the interior of the Honda, including mud on the floorboard and blood in the backseat. The Defendant explained the blood resulted from his having had sex in the backseat with a woman who was menstruating. Richard Rimmer looked inside the car and thought part of the back seat looked dark, like there could have been a bloodstain. He noticed mud in the car and a new-looking shovel on the rear floorboard. When the Defendant left his brother‘s house, he left the shovel leaning against the house.
That night, Richard Rimmer saw news reports on the victim‘s disappearance. He recalled the condition of the Defendant‘s car and panicked because he suspected his brother was involved. At the suggestion of their father, Richard Rimmer put a towel on the handle of the shovel the Defendant had left and disposed of it in a nearby dumpster.
Law enforcement investigation never yielded any indication the victim was still alive. Officers conducted at least twenty searches for the victim in the vicinity of the property rented by the Defendant‘s brother, in Mississippi around Plantation Point, near Arkabutla Lake, and in Arkabutla Lake itself. Her body was never found.
Mary Ann Whitlock also saw news reports about the disappearance of the victim, and she saw the same composite sketches Mr. Goforth was shown. She recognized the
men as Billy Wayne Voyles and Raymond Cecil; Ms. Whitlock knew both because they were all from the same small town. She identified Mr. Voyles as the suspect in the baseball cap. She reported this information to law enforcement.
In early March, Michael Adams was working as a road deputy on traffic patrol in Johnson County, Indiana. He stopped the Defendant for speeding. The Defendant was driving a maroon Honda with a license plate that matched the plate on the maroon Honda owned by Mr. Featherston. When he ran the plate numbers, the deputy realized the MPD had an interest in the vehicle as part of an ongoing investigation. He contacted the Johnson County Sheriff‘s Office, and an officer and an evidence technician went to the scene. The Defendant was taken into custody.
The Johnson County Sheriff‘s Office contacted the MPD, and MPD detectives flew into Indiana that night. In the meantime,
The next morning, MPD detectives watched as the Johnson County evidence technician processed the maroon Honda. The technician found reddish-brown stains in the back seat of the vehicle. A presumptive blood test confirmed the substance on the back seat was blood.
The evidence technician took ninety-six photographs of the vehicle and its contents. The photographs included images of: the interior left driver‘s side door; the right front floorboard; the interior trunk lid; the contents of the trunk; the rear compartment of the back seat; blood stains on the fabric upholstery in the back seat; a hole in the fabric upholstery in the back seat cut to obtain a sample for use in the presumptive blood test; a second hole in the fabric upholstery toward the bottom of the back seat, also cut for the presumptive blood test; and a baggie and envelope containing the presumptive blood test.
The evidence technician also removed and inventoried the contents of the maroon Honda. Each item removed was either sealed and stored in envelopes and paper bags or placed in the trunk of the vehicle, which was sealed prior to transport to Memphis. The individually secured items included: a white towel with red stains; three additional white towels; various receipts from Mississippi, Florida, Missouri, Montana, Wyoming, California, Arizona, and Texas dated February 8 through March 3, 1997; water; Holiday Inn stationery and other miscellaneous papers; maps; duct tape with hair attached; a plastic spray bottle; a glass jar; a pillow with blood spatter; a black baseball cap; a pair of Spalding tennis shoes; faded blue jeans; and a steel hammer. All of these items were released to the MPD detectives prior to their return to Memphis. The Johnson County Sheriff‘s Office also released the items on the Defendant‘s person at the time of his arrest, including a men‘s watch.
Once the search of the maroon Honda was completed, the vehicle was resealed. Arrangements were made to transport the vehicle to Memphis. It was loaded onto a tow truck, covered with a tarp, and driven to Memphis, where an MPD officer met the wrecker and securely stored the vehicle in the MPD‘s crime scene tunnel until it could be transported to the
The MPD detectives flew back to Memphis. They carried the individually sealed items taken from the vehicle onto the plane and stored the evidence in the cockpit for the duration of the flight. The evidence was then stored in the evidence room of the MPD homicide office until it was transmitted to the TBI for DNA analysis.
A few days later, the MPD‘s case coordinator asked the TBI to run a DNA comparison of the blood samples collected from the hotel to those obtained from the vehicle. The maroon Honda was also sent to the TBI lab in Nashville for processing. An MPD detective supervised the transport of the vehicle by wrecker from Memphis to the TBI lab in Nashville. At the same time, he transported the evidence previously taken from the vehicle to the TBI for testing. When he arrived, the detective signed over the vehicle and the box of evidence to the TBI experts. He asked them to vacuum the vehicle and collect hair and fiber samples to be sent to the FBI. In addition to the maroon Honda, the evidence deposited with the TBI included the following items collected from the vehicle and the Defendant‘s person after the stop in Indiana: a blood-soaked patch of upholstery cut from the back seat of the
After the Honda arrived at the TBI, agents processed it for microanalysis. In doing so, an agent took photographs, inventoried the contents of the vehicle, vacuumed the vehicle to collect any hair or fiber, and took samples of the seats and carpets. At that point, the agent did not analyze any hair or fibers because she did not have anything to compare to them. Instead, she preserved the evidence collected so a comparison could be done later if needed.
Another TBI agent tested the items in the two sealed boxes received from the MPD for the presence of blood. The towels from the crime scene and a pillow in the maroon Honda both tested positive for the presence of human blood. The test for blood was negative as to the hammer, another towel in the vehicle, and the watch.
The TBI agent also conducted a serological analysis on the maroon Honda. She inspected the vehicle for blood stains, took photographs of the stains, tested the stains for the presence of blood, and then cut samples or swabbed the areas so she could conduct a human blood confirmation test. The agent also made four sketches of the interior of the vehicle to document her findings. The buckle on the back-seat passenger-side seatbelt tested positive for the presence of human blood. The inside of the rear driver-side door had stains that tested positive for the possible presence of blood, but the agent did not remember conducting a follow-up test to determine whether it was human blood. The center back seatbelt buckle tested positive for the possible presence of blood, but the agent did not conduct a follow-up test to determine whether it was human blood. The back seat of the vehicle had blood stains, so the agent cut a large square of upholstery from the center of the back seat; it tested positive for the presence of human blood. The agent memorialized her findings in a report.
Once the analysis was complete, MPD released the maroon Honda to Mr. Featherston because the police department did not have the storage capacity to keep it longer. Mr. Featherston viewed it at the impound lot and saw that the liner inside the trunk was missing, the floor mats were missing, and there were stains in the back of the car. The items found in the car when the Defendant was pulled over in Indiana did not belong to Mr. Featherston. When the vehicle was in his possession, Mr. Featherston said, it was clean and did not have stains on the upholstery.
From the evidence taken from the maroon Honda and collected at the crime scene, an FBI forensic examiner determined the DNA of the blood at the crime scene matched the blood found inside the vehicle. The forensic examiner also compared the DNA from the blood collected at the scene and from the vehicle to the DNA of the victim‘s mother, Marjorie Floyd. The examiner determined the blood was consistent with belonging to a daughter of Ms. Floyd. The DNA type from the blood on the towel collected from the scene matched the DNA type extracted from the victim‘s pap smear sample. To obtain DNA samples from the victim, investigators collected the victim‘s toothbrush, sweatpants, and makeup sponge from her home. The DNA extracted from these items was consistent with the DNA from the blood at the motel and inside the maroon Honda.
Initially, Mr. Allard did not want to hear anything about the Defendant‘s plans for escape. Over the course of several weeks, in an apparent attempt to gain Mr. Allard‘s confidence, the Defendant talked to him a number of times about how he had murdered the victim. The Defendant told Mr. Allard he murdered his “wife” at the motel where she was employed. At one point, he told Mr. Allard he shot the victim twice; then he said he beat her in a back room in the motel behind the service desk. The Defendant described the back room as “pretty bloody” after the beating. The Defendant told Mr. Allard he took the motel‘s security camera tape, erased it, put the victim‘s body in his car, and buried her in a wooded area close to a lake or pond. Later, when the Defendant received a letter informing him of the MPD‘s search for the body, he told Mr. Allard he could not believe the body had not been located.
During his conversations about the victim‘s murder, Mr. Allard said, the Defendant‘s countenance changed. He became a “different person” from his everyday demeanor. His eyes got “real shiny,” he started sweating a lot, and he frequently went to the sink to wash his hands.
On October 23, 1997, while awaiting his first trial for murdering the victim, the Defendant made a second attempt to escape incarceration. The Defendant was one of four prisoners being transported in a federal prisoner transport van. All the prisoners were held in cages inside the van. When the drivers stopped to eat lunch, they left the keys in the ignition, the engine running, and a loaded shotgun inside the van. The Defendant managed to get out of his cage. He released the other inmates and drove off in the van.
Officers with the Bowling Green, Ohio police department spotted the prisoner transport van. They initiated a traffic stop, but the Defendant did not stop. A high-speed chase ensued. For approximately thirteen miles, during rush hour, officers from several jurisdictions pursued the Defendant, driving at speeds that sometimes reached ninety miles an hour. Eventually, a road block forced the Defendant to stop. Officers ordered the driver out of the van over a loudspeaker. After a couple of minutes, the Defendant exited the van and was taken into custody.
The third escape attempt occurred on October 16, 1998, while the Defendant was housed in the Shelby County Jail. The Defendant and another inmate used hard
At trial, the State called Jerry Findley as an expert in blood stain pattern analysis. To prepare his opinion, Mr. Findley reviewed the crime scene photographs taken on February 8, 1997 by MPD officers. Based on the patterns of blood observed in the photographs, Mr. Findley opined the victim sustained either five blows with blunt force or four blows with a sharp object. Mr. Findley saw no evidence in the photographs that the blood stains resulted from a gunshot; instead, he believed they arose from repeated hits with a toilet lid, fist, or hammer. The photographs documented a large amount of blood, consistent with blows to the head, face, and nose. He acknowledged that, without a body to examine, he could not know the true placement and extent of the victim‘s injuries.
The Defendant called two expert witnesses at trial. The first was Marilyn Miller, Ph.D., an expert in crime scene investigation and reconstruction, forensic science and serology, and blood spatter pattern analysis. Dr. Miller criticized the quality of the photographs taken of the blood at the scene, including the lack of scale and the angle at which they were taken. She said it was difficult to conduct an adequate blood spatter analysis based on the images in the photographs. From those images, Dr. Miller said, she could only opine that blood was shed and could not determine whether a death had occurred. As a further complication, the blood was diluted with water in a possible attempt to clean; this made it impossible for her to ascertain the quantity of blood present at the scene. Dr. Miller agreed with Mr. Findley that there was no evidence the blood stains were caused by a gunshot. Dr. Miller also agreed with Mr. Findley that the blood stains on the walls of the bathroom could have resulted from either blunt or sharp force. Any object, like a fist, the flashlight found in the bathroom, or the lid to the toilet, could have caused blunt force injuries to the victim. Dr. Miller maintained there was no way to know whether all of the blood came from the same source because not all of it was tested.
Dr. Miller also criticized the lack of security at the crime scene. There were sixteen people present at the scene, she pointed out, which could have resulted in contamination. Further, she said the MPD should have processed more of the high-touch areas, such as the
cabinet, the purse, and the entrance and exit, for fingerprints. Lastly, Dr. Miller contended the MPD should have used amino black or luminal12 to identify the presence of otherwise hidden bodily fluids.
In addition, Dr. Miller found fault with the processing of the maroon Honda. She testified she was never given the opportunity to see an unobstructed photograph of the back seat of the vehicle taken while the bloodstains were fresh. She explained it
According to Dr. Miller, the MPD did not adequately test the trunk of the maroon Honda for the presence of blood before it released the vehicle. The liner inside the lid of the trunk had been removed, so it could not be examined. Dr. Miller also maintained that all of the items in the car‘s trunk should have been tested for blood, not just the few items selected for processing. Also, given the amount of blood at the scene and the apparent attempt to clean it, she thought there would have been blood in the front seat of the vehicle, but there were no positive presumptive tests for any blood on the surfaces she tested in the front area.
Next, the Defendant called an expert in DNA analysis and serology, William Joseph Watson, Ph.D. Dr. Watson had no issue with the results of the tests performed in this case but felt more testing could have been done. Dr. Watson acknowledged that when the original case was worked, it was unusual to have certain types of DNA testing done on things like hair. Nevertheless, he pointed out, the TBI collected hair and fiber evidence but did not test it. Even though no hair samples from the victim were available, a comparison test with family members could have been performed. Dr. Watson also noted it would have been helpful to determine the type of body hair found in the vehicle, but this was not done.
Dr. Watson opined the presumptive and confirmatory blood tests conducted by the TBI did not actually confirm the presence of blood. He explained that the serologist conducted a presumptive blood test followed by a test for human protein. Human protein can be present from saliva or other bodily fluids, not just blood, said Dr. Watson, so the positive result for each test did not necessarily mean the substance was human blood. He said current tests can determine the presence of blood with more certainty.
Dr. Watson commented on the DNA tests showing that the blood inside the maroon Honda could not be excluded as having come from a female offspring of the victim‘s mother, Ms. Floyd. Dr. Watson agreed with this conclusion but did not agree that the DNA from the blood in the car “matched” Ms. Floyd‘s DNA. He explained the term “match” was not used in this context; it could at best be only a partial match because offspring receive DNA from both the mother and father.
Regarding the DNA test performed on the victim‘s pap smear, Dr. Watson observed that the forensic examiner was limited by the technology available at that time. By the time of Dr. Watson‘s testimony, there were tests that could use less DNA and obtain a better answer. Regardless, he said, when the forensic examiner found two sources of DNA in the pap smear, he should not have assumed the second DNA source came from a minor contributor such as the victim‘s husband. Dr. Watson testified that lab conditions in the 1990s were often more lax, and he opined that the additional DNA could have instead come from contamination such as the examiner‘s ungloved hand. Instead of assuming the minor contributor was the victim‘s husband, Dr. Watson said, the examiner should have tested the husband‘s DNA as well.
Finally, Dr. Watson noted that the State tested items collected from the car for the presence of blood twice; because of the intervening appeals and remands, the two
After considering all of the evidence, the jury convicted the Defendant of first degree premeditated murder, first degree felony murder, and aggravated robbery. The trial court merged the first degree premeditated murder and first degree felony murder convictions.
The trial then went into the penalty phase. Against the advice of counsel, the Defendant waived his right to present mitigating evidence. The Defendant testified that he understood he had the right to put on mitigating evidence, knew a mitigation investigation had been done on his behalf, understood the importance of defending against a death sentence, but nevertheless freely and voluntarily waived his right to present mitigating evidence. The Defendant asked his family and friends not to attend the penalty phase of the trial. He directed defense counsel to refrain from giving an opening statement, giving a closing statement, or cross-examining witnesses. The trial court noted the Defendant‘s decisions were not in his best interest but accepted the Defendant‘s waiver.
The State first presented victim impact evidence. Previous victim impact testimony from the victim‘s mother was read to the jury. She testified about the grief she and the victim‘s children had endured. Their collective grief was compounded, she said, by having to mourn the victim‘s death without ever having found her body.
The proof then moved to the aggravating circumstances. The first aggravating circumstance the State asked the jury to consider was that “[t]he defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person,” as set forth in
After a separate sentencing hearing on the aggravated robbery conviction, the trial court imposed an additional eighteen years of confinement running consecutively to the death sentence. The Defendant later filed motions for judgment of acquittal and for a new trial. The trial court denied both motions.
The Defendant then filed a direct appeal to the Court of Criminal Appeals, which affirmed the judgment of the trial court. See State v. Rimmer, No. W2017-00504-CCA-R3-DD, 2019 WL 2208471 (Tenn. Crim. App. May 21, 2019). This appeal followed.
ANALYSIS
I. Double Jeopardy
Initially, we consider separate double jeopardy arguments raised by the Defendant and by amicus Amnesty International, Nashville (“Amnesty International“). We address the Defendant‘s double jeopardy argument first.
A. Standard of Review
Questions of constitutional interpretation are reviewed de novo, with no presumption of correctness afforded to the conclusions of the trial court. State v. Feaster, 466 S.W.3d 80, 83 (Tenn. 2015).
B. Defendant‘s Motion to Dismiss
The Defendant asserts the trial court erred by denying his motion to dismiss the felony murder charge on double jeopardy grounds because the jury verdict in the first trial operated as an implied acquittal of the felony murder charge. The State counters that double jeopardy did not attach because the trial court instructed the jury not to consider felony murder if it found the Defendant guilty of first degree premeditated murder. We agree with the State.
The
Often, when a jury considers a multi-count charge and returns a guilty verdict on one count but does not return a verdict on the remaining counts, the jury‘s silence on the remaining counts serves as an implied acquittal on them. Double jeopardy prevents retrial on the remaining counts. State v. Burns, 979 S.W.2d 276, 290–91 (Tenn. 1998).
This is not the case, however, when a jury has received sequential or “acquittal first” jury instructions, in which the jury is told to consider the lesser counts only if it
In this case, at the Defendant‘s first trial in 1998, the trial court instructed the jury as follows:
When you retire to consider your verdict in indictment number 98-01034, you will first inquire, is the defendant guilty of Murder in the First Degree as charged in the First Count of the indictment? If you find the defendant guilty of this offense, beyond a reasonable doubt, your verdict should be,
“We, the Jury, find the defendant guilty of Murder in the First Degree as charged in the First Count of the indictment.”
If you find the defendant not guilty of this offense, or if you have a reasonable doubt of his guilt of this offense, you will acquit him thereof and then proceed to inquire whether or not he is guilty of Murder in the First Degree During the Perpetration of a Robbery as charged in the Second Count of the indictment.16
Thus, the Defendant‘s first jury was given sequential or “acquittal first” jury instructions. The jury convicted the Defendant of first degree murder, aggravated robbery, and theft of property. Having returned a guilty verdict on the first degree murder count, the jury in the first trial did not consider the felony murder count.
In advance of the second trial, the Defendant filed a motion to dismiss the felony murder charge on double jeopardy grounds. In support, the Defendant argued the jury‘s failure to return a verdict on the felony murder count in the first trial amounted to an acquittal, which prevented a second trial on that charge. The trial court denied the motion. It noted that the trial court in the first trial gave a sequential jury instruction in which it instructed the jury to first render a verdict on the first degree murder charge (Count 1), and then on the felony murder charge (Count 2) or a lesser included offense. On this basis, the trial court in the second trial concluded that the double jeopardy protections of the United States Constitution and Tennessee Constitution did not apply. The Defendant raised this issue again in his
On direct appeal, the Court of Criminal Appeals considered the same issue. It reached the same conclusion as the trial court:
The jury at the Defendant‘s first trial was instructed to consider the felony murder charge only if it returned a not guilty verdict for premediated murder. A jury is presumed to follow the trial court‘s instructions. We conclude that in this case the lack of a jury verdict on the felony murder count at the first trial was not an implicit acquittal and that double jeopardy principles were not violated at the second trial. The Defendant is not entitled to relief on this basis.
Rimmer, 2019 WL 2208471, at *9 (citation omitted).
We agree with the lower courts. Based on the sequential jury instructions given in the 1998 trial and the subsequent verdict, once the jury found the defendant guilty of first degree premeditated murder (Count 1), we presume it stopped its deliberations without considering the felony murder charge (Count 2). Thus, the jury in the first trial did not have a full opportunity to consider the felony murder count before it rendered its verdict, so double jeopardy did not prevent the State from prosecuting the Defendant for felony murder in the second trial. See, e.g., Price v. Georgia, 398 U.S. 323, 329 (1970) (holding double jeopardy prevents retrial on the greater charge when the first jury “was given a full opportunity to return a verdict” on the greater charge and returned a verdict on the lesser charge instead (quoting Green v. United States, 355 U.S. 184, 191 (1957))). Accordingly, we affirm the trial court‘s denial of the Defendant‘s motion to dismiss the felony murder count.
C. Amnesty International Double Jeopardy Argument
Amicus Amnesty International argues the Double Jeopardy Clauses of the
In order for an appellate court to conclude that plain error has occurred, all of the following factors must be present: (1) the record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of the accused must have been violated; (4) the accused must not have waived the issue for
Double jeopardy does not preclude “the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38 (1988); see also State v. Harris, 919 S.W.2d 323, 328 (Tenn. 1996) (“[N]o constitutional provision prevents retrial after a reversal for legal error.“). Moreover, despite Amnesty International‘s arguments to the contrary, prosecutorial misconduct prevents retrial only when, through the misconduct, the prosecutor intended to force the defendant into moving for a mistrial and succeeded in doing so. State v. Tucker, 728 S.W.2d 27, 31 (Tenn. Crim. App. 1986). The alleged prosecutorial misconduct in this case did not involve forcing the Defendant into moving for a mistrial.18
The proper remedy for any alleged prosecutorial misconduct in this case was a new trial, which the Defendant requested and received.19 See, e.g., State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001) (new trial for ineffective assistance of counsel); State v. Goltz, 111 S.W.3d 1, 10 (Tenn. Crim. App. 2003) (new trial for prosecutorial misconduct that did not involve forcing the defendant into a mistrial). The Defendant is not entitled to relief on grounds of double jeopardy.
II. Motion to Suppress DNA Evidence
Next, the Defendant asserts the trial court erred by denying his request to dismiss the indictments or suppress DNA evidence collected from the maroon Honda because evidence was destroyed when the MPD released the vehicle before the defense had an opportunity to inspect it. In response, the State equates the vehicle to a crime scene and argues the MPD did not have a duty to retain the vehicle for years, particularly when it properly collected and preserved the evidence contained inside the car before releasing it. Again, we agree with the State.
A. Standard of Review
To review a trial court s decision regarding the fundamental fairness of a trial conducted despite missing or destroyed evidence, we apply a de novo standard. State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). If we conclude the trial would be fundamentally unfair without the missing or destroyed evidence, then we review the remedy imposed by the trial court for an abuse of discretion. Id. at 791-92.
B. Ferguson Analysis
The Due Process Clause in the United States Constitution and its counterpart in the Tennessee Constitution both give every criminal defendant the right to a fair trial.
exculpatory evidence; destroying exculpatory evidence; filing motions that contained misrepresentations; knowingly directing a witness to provide false testimony; and failing to inform the Defendant about a possible conflict of interest. As noted above, the post-conviction court rejected these claims.
In Ferguson, the Court considered the course of action to take when allegedly exculpatory evidence is lost or destroyed before it is produced to the defense. See id. Ferguson held that, as an element of due process, fundamental fairness requires review of the entire record to ascertain the effect of the destroyed or missing evidence. Id. at 914. It adopted a balancing test for determining whether the defendant can have a trial that is fundamentally fair in the absence of that evidence. Id. at 917.
Under the Ferguson balancing test, the reviewing court first considers whether the State had a duty to preserve the missing evidence. Id. Subject to
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).
If the reviewing court concludes the State had a duty to preserve the evidence in question and failed to do so, then it must determine whether destruction of the evidence violated the defendant s due process rights. This determination is made by balancing the following factors: (1) the degree of negligence involved in the destruction or loss of the evidence; (2) the significance of the destroyed evidence, considered in light of its probative value and the reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence used at trial to support the conviction. Id.; Merriman, 410 S.W.3d at 785.20 If the reviewing court decides a trial without the evidence would be fundamentally unfair, the remedies may include dismissal of the charges or a jury instruction explaining how the jury is to consider the lost or destroyed evidence. Ferguson, 2 S.W.3d at 917.
On appeal, the intermediate appellate court in Hollingsworth first observed that the vehicle was not lost or destroyed; the State released it to the victim s family after processing pursuant to police department policy. See id. (explaining that Ferguson does not impose a duty on the police to collect evidence in a particular manner). Moreover, samples taken from the vehicle as part of the investigation were preserved as evidence and available to the defendant for analysis. Id. The appellate court held that the State did not have a duty to retain and preserve the vehicle itself, particularly over the many years of trial, retrials, and resentencing. Id. at *15.
In the alternative, the Hollingsworth court reasoned that, even if the State had a duty to preserve the vehicle, its absence did not deprive the defendant of a fundamentally fair trial. Id. The vehicle was released pursuant to an established policy, not through negligence or bad faith. Given police department storage limitations, the department was not required to hold the vehicle from 1997 until 2014. Id. Moreover, the amount of evidence taken from the vehicle and preserved was significant. It included photographs of the vehicle s interior and exterior; photographs and measurements of tire tracks found in the defendant s backyard; samples taken from the vehicle that were tested by the TBI and the results of those tests; and samples of foliage taken from the vehicle and the defendant s backyard. In light of all of this evidence, the vehicle itself would not have been particularly significant. Id. Finally, the evidence presented at trial was sufficient to convict the defendant of second degree murder, so “[e]ven if third party DNA was found inside the victim s car, it would not have explained the other substantial evidence of the [d]efendant s guilt.” Id. In those circumstances, the Court of Criminal Appeals concluded, the defendant s trial was fundamentally fair, so the trial court did not err in denying the defendant s motion to dismiss the indictment. Id.
In the case at bar, the Defendant moved to dismiss the indictments or suppress DNA evidence collected from the maroon Honda because the vehicle was released before the Defendant had the opportunity to inspect and independently test it. According to the Defendant, the fact that no blood from the victim was found in the car s trunk, even after a witness testified he saw someone at the Memphis Inn place a large object in the trunk, would have been exculpatory. Depriving him of the ability to inspect and independently test the vehicle, the Defendant argued, deprived him of the right to a fundamentally fair trial.
In its denial of the motion, the trial court held that the State did not have a duty to retain the vehicle. Under Ferguson, the trial court could have stopped there, but it went further. The trial court also found that, apart from the cuttings and other items collected from the Honda,
The Court of Criminal Appeals likewise concluded that the State did not have a duty to preserve the vehicle. Consequently, it found no error in the trial court s denial of the Defendant s motion to dismiss the indictments or suppress the DNA evidence collected from the maroon Honda. Rimmer, 2019 WL 2208471, at *11. The Defendant argued further that the trial court erred in declining to give a Ferguson jury instruction concerning the State s release of the vehicle. The Court of Criminal Appeals rejected this argument as well on the basis that the State had no duty to preserve the vehicle. Id.
After review of the record, we agree with the lower courts that the State did not have a duty to preserve the maroon Honda for later production to the Defendant. The efforts to retrieve evidence from the vehicle before its release were thorough and extensive. After the Defendant was pulled over in Indiana, Johnson County Sheriff s Office employees searched the vehicle and inventoried evidence in the presence of MPD officers. A positive presumptive blood test was conducted and preserved as to at least one of the reddish-brown stains in the vehicle s back seat. Investigators took ninety-six photographs of the vehicle and its contents, including photographs of the trunk after the inside cover was removed. The vehicle and items taken from it were then securely transported for processing, first to Memphis and later to the TBI. Once at the TBI, the maroon Honda was photographed, inventoried, and vacuumed for hair and fiber samples. Upholstery and carpet samples were cut for fiber analysis, and items taken from the vehicle were tested for the presence of human blood. Investigators conducted serological analysis of the interior of the vehicle to confirm the presence of human blood in the back seat.
The items taken from the vehicle, the bloody patches of upholstery cut from the back seat of the vehicle, and the abundant photographs of the vehicle were all preserved and available to the Defendant for analysis. Under these circumstances, the vehicle itself had little apparent exculpatory value, and its release back to the owner did not leave the Defendant unable to obtain comparable evidence through the investigatory materials that remained available to the defense. See Ferguson, 2 S.W.3d at 917. The State had no duty to retain the vehicle.
In the alternative, even if the State had a duty to preserve the vehicle, the release of the maroon Honda back to the owner did not violate the Defendant s due process rights. First, there was no
Second, the vehicle itself had little significance as evidence; the Defendant offers only speculation as to the probative value of being able to physically inspect the trunk. Per the DNA tests, the blood at the crime scene matched the blood found inside the Honda, and both were consistent with being the blood of the victim. The existence of blood of a third party or the absence of any blood whatsoever in the trunk would not negate this evidence.
Finally, the other evidence used at trial was overwhelming. See Ferguson, 2 S.W.3d at 917. As summarized above, while incarcerated for rape of the victim, the Defendant expressed a desire to kill her. A witness described seeing someone who fit the Defendant s description at the Memphis Inn with blood on his hands the night the victim disappeared. Another witness recalled seeing a maroon Honda parked close to the night entrance of the Memphis Inn around 1:40 a.m. and saw a man fitting the Defendant s description place something heavy and wrapped in a blanket into the vehicle s trunk. DNA tests determined blood found at the scene and inside the Honda was consistent with that of the victim. Immediately after the victim disappeared, the Defendant went to see his brother to get assistance cleaning blood from the Honda s interior, stopped going to work, and embarked on a cross-country trip, leaving behind his last paycheck. The Defendant later confessed to the murder in conversations with a fellow inmate, complete with accurate descriptions of the crime scene. Finally, the Defendant tried to escape custody on multiple occasions.
Consequently, even if the State had a duty to preserve the Honda, which it did not, the release of the vehicle did not result in a fundamentally unfair trial. Accordingly, we affirm the trial court s denial of the Defendant s motion to dismiss the indictments or suppress DNA evidence.
III. Rule 404(b) Evidence
The Defendant next asserts the trial court erred under
In response, the State argues the prior crimes against the victim were relevant to establish the Defendant s motive and intent, and the prior escape attempts indicated the Defendant s consciousness of guilt. It maintains that the related jury instructions minimized the prejudicial impact of the evidence. We agree with the State.
A. Standard of Review
The parties agree that, before it admitted the evidence at issue, the trial court substantially complied with the procedural safeguards in
B. Tennessee Rule of Evidence 404(b)
- The court upon request must hold a hearing outside the jury s presence;
- The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;
- The court must find proof of the other crime, wrong, or act to be clear and convincing; and
- The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
In the context of
C. Convictions for Rape and Assault
In this case, the Defendant filed a motion to suppress evidence admitted in his first trial relating to his convictions for rape and aggravated assault. Pursuant to
Prior to trial, the trial court held a
The trial court held that the Defendant s guilty plea, conviction, and incarceration for the 1989 rape and assault of the victim were admissible under
Likewise, after reviewing the initial trial testimony of Mr. Lescure and Mr. Conaley, the trial court found their statements about the Defendant s intent to harm the victim after his release from prison were probative of intent, motive, identity, and premeditation. It held that the danger of unfair prejudice to the Defendant did not outweigh the probative value of the statements. The trial court ruled the testimony of Mr. Lescure and Mr. Conaley would be admissible under
Nevertheless, the trial court excluded proffered evidence of the details of the Defendant s attack on the victim. It decided that evidence of those details presented a strong risk of inflaming the passions of the jury and a danger of unfair prejudice to the Defendant. The trial court also excluded the testimony of Ms. Brown as to the underlying events because she was a young child at the time of the rape and her recollection was hazy; the trial court held it did not meet the clear and convincing standard.
The Court of Criminal Appeals affirmed the trial court s admission of evidence relating to the rape and assault of the victim. It concluded the trial court had properly found the evidence was probative of issues other than the Defendant s bad character or propensity to commit murder and had carefully balanced the probative value of the evidence against the danger of unfair prejudice. Rimmer, 2019 WL 2208471, at *15.
As noted, the Defendant does not contend the trial court failed to follow the procedural requisites of
This Court has previously held that prior instances of domestic abuse by a defendant against a victim can be admissible under
In this case, the evidence at issue includes: Ms. Brown s reference to the Defendant s
Clearly the evidence at issue has probative value and also presents potential for unfair prejudice. The trial court found explicitly that the evidence was probative of identity, motive, intent, and premeditation and held that its probative value outweighed the danger of unfair prejudice to the Defendant. The trial court also acted to mitigate the risk of unfair prejudice by excluding evidence of the details of the 1989 rape and assault. The trial court then took a further step by giving the following limiting instruction to the jury:
If from the proof you find that the defendant has been convicted of Rape or Aggravated Assault, you may not consider such evidence to prove his disposition to commit such a crime as that on trial. The evidence may only be considered by you for the limited purpose of determining whether it proves motive; that is, such evidence may be considered by you if it tends to show a motive of the defendant for the commission of the offenses for which he is presently on trial.
. . . .
Such evidence of other crimes, if considered by you for any purpose, must not be considered for any purpose other than those specifically stated in this instruction.
We presume the jury followed these instructions. See State v. McKinney, 74 S.W.3d 291, 310 (Tenn. 2002) (presuming the jury followed the trial court s limiting instructions regarding the consideration of victim impact evidence).
Considering the entire record, we must conclude the trial court did not abuse its discretion. We affirm its decision to admit evidence of the Defendant s prior convictions for rape and aggravated assault, including the statements made to Mr. Conaley and Mr. Lescure during his subsequent incarceration for those offenses.
C. Escape Attempts
The State also sought to introduce evidence of the Defendant s escape attempts in Indiana, Ohio, and Tennessee for the purpose of showing consciousness of guilt. The Defendant moved to exclude this evidence under
The trial court reviewed the prior trial testimony of James Allard, Richard Skaggs, Tony Lomax, and Dennis Tillman about the Defendant s escape attempts. After performing the balancing required under
The Court of Criminal Appeals reviewed the testimony at issue, as well as evidence of homemade “shanks” found in the Defendant s cell in Indiana which served to corroborate the evidence of his plans to escape. Rimmer, 2019 WL 2208471, at *15. It held the trial court did not abuse its discretion in admitting evidence regarding the Defendant s escape attempts. Id.
It is well established that evidence of escape or attempted escape after the commission of a crime can be relevant and admissible at trial to show guilt, knowledge of guilt, and consciousness of guilt. State v. Burton, 751 S.W.2d 440, 450 (Tenn. Crim. App. 1988); see also Craig v. State, 455 S.W.2d 190, 193 (Tenn. Crim. App. 1970) (citing 22A C.J.S. Criminal Law § 631) (affirming admission of testimony about defendant s escape from custody when brought to the courthouse for a preliminary hearing as evidence of guilt, knowledge of guilt, or consciousness of guilt); State v. Taylor, 661 S.W.2d 695, 698 (Tenn. Crim. App. 1983) (“It is universally recognized that testimony as to flight, attempted flight or concealment after the commission of an offense or after one is accused of a crime is relevant evidence which may be shown as a criminating circumstance . . . .“). The stage of the proceedings in which the escape attempt occurs is of no consequence; it is admissible regardless of the time that passed since the defendant s arrest. Burton, 751 S.W.2d at 450.
The evidence at issue concerned the Defendant s flight in a prisoner transport van, his attempted escape in Indiana, homemade shanks found in his cell,22 and his attempted escape in Tennessee. After reviewing the record, we agree with the Court of Criminal Appeals that the trial court properly analyzed this evidence under
If from the proof you find that the defendant has committed any escape or plan or attempt to commit an escape, you also may not consider any such evidence to prove his disposition to commit such a crime as that on trial. This evidence may only be considered by you for the limited purpose of determining whether it tends to prove flight. The fact of flight alone does not allow you to find that the defendant is guilty of the crimes for which the defendant is now on trial, but if flight is proven, you may consider the fact of flight with all of the other evidence when you decide the guilt or innocence of the defendant. The rules for this consideration are set out in the following instruction on flight.
Such evidence of other crimes, if considered by you for any purpose, must not be considered for any purpose other than those specifically stated in this instruction.
And the second:
The flight of a person accused of a crime is a circumstance which, when considered with all the facts of the case, may justify an inference of guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading arrest or prosecution for the crime charged. Whether the evidence presented proves
beyond a reasonable doubt that a Defendant fled is a question for your determination.
The law makes no precise distinction as to the manner or method of flight; it may be open, or it may be a hurried or concealed departure, or it may be a concealment within the jurisdiction. However, it takes both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the community, or a leaving the community for parts unknown, to constitute flight.
If flight is proved, the fact of flight alone does not allow you to find that a defendant is guilty of the crime alleged. However, since flight by a Defendant may be caused by a consciousness of guilt, you may consider the fact of flight, if flight is so proven, together with all of the other evidence when you decide the guilt or innocence of a defendant. On the other hand, an entirely innocent person may take flight and such flight may be explained by proof offered, or by the facts and circumstances of the case.
Whether there was flight by a Defendant, the reasons for it, and the weight to be given to it, are questions for you to determine.
Again, we presume the jury followed these instructions. McKinney, 74 S.W.3d at 310.
Under all of these circumstances, we conclude the trial court s decision to admit evidence of the Defendant s escape attempts was not an abuse of its discretion.
IV. Mandatory Review of Death Sentence
This Court is statutorily required to review the Defendant s death sentence. See
A. Arbitrariness in Imposition of Death Penalty
In his supplemental brief to this Court, the Defendant does not seek modification of his sentence. Rather, he asks the Court to vacate his convictions and order another new trial. In his supplemental brief, the Defendant also raises, for the first time, a general arbitrariness challenge to his death sentence, presumably because this Court ordered the parties to brief the issue for oral argument. Regardless of the Defendant s failure to raise this issue before now, we are statutorily required to consider whether his death sentence was imposed in an arbitrary manner.
After considering the arguments made by the Defendant and analyzing all pertinent law, we conclude the jury in this case did not render an arbitrary verdict of death. Our review reveals that the trial court conducted both the guilt and penalty phases of trial in accordance with the applicable statutes and procedural rules. The evidence was more than sufficient to support the guilty verdict. The jury sentenced the Defendant to death after it found beyond a reasonable doubt one aggravating circumstance—one or more convictions for a felony with statutory elements involving violence to a person—and also found beyond a reasonable doubt that this aggravating circumstance outweighed any mitigating circumstances. The State presented certified copies of four judgments of conviction for prior violent felonies committed
B. Aggravating Circumstance
Before imposing the death penalty or life imprisonment, juries must unanimously find the existence of at least one aggravating circumstance beyond a reasonable doubt. See
In this case, the jury found beyond a reasonable doubt one aggravating circumstance: “The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person.”
Here, to support its contention that the Defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence, the State relied on the Defendant s convictions of assault with intent to commit robbery with a deadly weapon (case number 85-00448); aggravated assault (case number 85-00449); aggravated assault (case number 89-02737); and rape (case number 89-02738). Aggravated assault can be proven without evidence of violence. See id. at 10-11 (noting the trial court properly found that aggravated assault “does not necessarily involve the use of violence to another person” in that the offense “may be committed by intentionally or knowingly causing the victim to reasonably fear imminent bodily injury by use or display of a deadly weapon” (footnote omitted)). The trial court below was already familiar with the facts underlying the Defendant s 1989 aggravated assault conviction from reviewing the lengthy pretrial testimony related to it. It also reviewed the indictment for
During the guilt phase of the trial, the State submitted evidence of the Defendant s 1989 aggravated assault and rape convictions, including certified copies of those judgments. In the penalty phase of the trial, the State entered into evidence certified copies of judgments reflecting the Defendant s 1985 guilty pleas to assault with intent to commit robbery with a deadly weapon and aggravated assault. The State argued all four convictions should be considered in support of the aggravating circumstance. The jury unanimously agreed.
The Defendant does not challenge the underlying felony convictions presented by the State, nor does he dispute that they involve an element of violence.
The record in this case shows the trial court followed the proper procedures in admitting the evidence relating to the Defendant s violent felony convictions. The record contains certified judgments for all four convictions. We hold that the evidence fully supports the jury s finding that the State proved aggravating circumstance (i)(2) beyond a reasonable doubt.
C. Aggravating Circumstances Outweigh Mitigating Circumstances
Tennessee law also requires us to assess whether “[t]he evidence supports the jury s finding that the aggravating . . . circumstances outweigh any mitigating circumstances.”
From our review, the record contains little if any mitigating evidence to weigh against the aggravating circumstance. We hold that the evidence fully supports the jury s finding that the aggravating circumstance in this case outweighed any mitigating circumstances.
D. Proportionality Review
Finally, Tennessee law requires the Court to determine whether the sentence of death in this case is excessive or disproportionate to the penalty imposed in similar cases.
To perform this review, we employ a precedent-seeking method of comparative proportionality review, in which we compare this case with other cases involving similar crimes and similar defendants. The pool of cases to be compared consists of “first degree murder cases in which the State sought the death penalty, a capital sentencing hearing was held, and the jury determined whether the sentence should be life imprisonment, life imprisonment without possibility of parole, or
The death sentence for the Defendant must be deemed disproportionate if this case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.” Bland, 958 S.W.2d at 668. Thus, in our proportionality review, we examine “the facts and circumstances of the crime, the characteristics of the defendant, and the aggravating and mitigating circumstances involved.” State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002). Specifically, we consider:
- the means of death;
- the manner of death;
- the motivation for the killing;
- the place of death;
- the victim s age, physical condition, and psychological condition;
- the absence or presence of premeditation;
- the absence or presence of provocation;
- the absence or presence of justification; and
- the injury to and effect upon non-decedent victims.
State v. Reid, 164 S.W.3d 286, 316 (Tenn. 2005) (citing Bland, 958 S.W.2d at 667). We also consider several factors about the Defendant, including his (1) record of prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim s helplessness; and (8) potential for rehabilitation. Id. at 316-17.
Here, the evidence indicates that the means of death was a violent and bloody attack involving blunt or sharp force. The manner of death could not be confirmed because authorities were never able to locate the victim s body.
As to the motivation for the killing, the evidence shows that the Defendant and the victim had a tumultuous off-and-on romantic relationship that included the Defendant s assault and rape of the victim and his 1989 guilty plea to the same. The evidence shows that, while he was incarcerated for these offenses, the Defendant repeatedly blamed the victim for his incarceration, expressed anger toward her, and told fellow inmates he planned to kill the victim upon his release.
The evidence indicates the place of death was the victim s place of employment. The Defendant went there the night of February 7, 1997 while the victim worked the overnight shift as a motel night clerk in a high crime area to support her family. The motel lobby office where the victim worked was secure; the door remained locked at night and the victim interacted with customers through a clear shield with a drawer. Despite the Defendant s past brutalization of the victim, she maintained a relationship with him. The Defendant took advantage of the victim s trust; when the Defendant came to the motel with at least one other male, the victim let them in. The evidence indicated the victim was killed in a bloody, violent encounter there at the motel, and her body was placed in the maroon Honda.
At the time of her death, the victim was forty-five years old. As to the victim s physical condition and psychological condition, the evidence indicated she was leading a productive life with a happy marriage and a close relationship with her mother and her teenage daughter. The victim was also close to her son, who depended on the victim for support and care regarding conditions arising out of severe burns he had sustained as a child. At the time of her death, the victim babysat her son s daughter, the victim s granddaughter, multiple times a week.
The record does not contain any evidence of provocation or justification for the murder.
The evidence shows that the effect of the victim s murder on the non-decedent victims—her family—was profound. Her husband, mother, daughter, and son all enjoyed a close and loving relationship with the victim, and they were greatly affected by her absence from their lives. During the penalty phase of the trial, the victim s mother testified that the fact that the victim s body was never found made closure for the family all the more difficult. The family was forced to have a memorial service for the victim without a body. The victim s mother testified about the mental and emotional effect of not knowing exactly how her daughter died and whether she was in pain or fear at the time of her death.
We next consider several factors about the Defendant. A white male who was thirty-one years old at the time of the offenses, the Defendant had a significant record of violent crime, including armed robbery, two counts of aggravated assault, and rape. As to the Defendant s mental, emotional, and physical conditions, the evidence shows he had an emotional and physical reaction when he talked about his anger at the victim and his intent to kill her. Although there was proof at trial that potentially two other males accompanied the Defendant to the Memphis Inn the night the victim disappeared, the testimony of the Defendant s fellow inmates about the Defendant s descriptions of the murder indicates that he played an active role in killing the victim. This is consistent with the proof about the Defendant s past relationship with the victim, the proof of his motive, the evidence of premeditation, and his decision to leave immediately afterward on a cross-country trip, driving a vehicle stained with the victim s blood.
The evidence shows the Defendant did not cooperate with authorities. After the murder, the victim s body was never located. The Defendant s conversations with other inmates indicated he disposed of the body, but instead of directing authorities to the body, the Defendant marveled that they had never found it. Moreover, after the murder, the Defendant attempted to escape from custody on three occasions. His plan to escape custody in Indiana, as described to a fellow inmate, included “grabbing a guard,” and homemade shanks were later found in his cell. After he stole a prisoner transport van in Ohio, the Defendant put public lives in danger by engaging in an extended high-speed chase. All told, the evidence indicates the Defendant has no remorse and no potential for rehabilitation.
Based on our thorough review of the record and Supreme Court Rule 12 reports,24 we conclude that the death sentence imposed in this case is neither excessive nor disproportionate to the penalty imposed in similar cases. We previously affirmed the death sentence rendered following
There are other cases in which this Court has affirmed the death sentence based on the sole aggravating circumstance of the defendant s violent felony history. See, e.g., State v. Thomas, 158 S.W.3d 361, 382 (Tenn. 2005); State v. Smith, 993 S.W.2d 6, 21 (Tenn. 1999); State v. Adkins, 725 S.W.2d 660, 662 (Tenn. 1987).
In this Court s review of Mr. Rimmer s first capital conviction, we also cited prior cases in which the jury imposed the death penalty after a conviction for the murder of a current or estranged significant other. Rimmer, 250 S.W.3d at 36 (citing State v. Stephenson, 195 S.W.3d 574, 596 (Tenn. 2006), abrogated on other grounds by Watkins, 362 S.W.3d 530; State v. Ivy, 188 S.W.3d 132, 157 (Tenn. 2006); State v. Faulkner, 154 S.W.3d 48, 63 (Tenn. 2005); Stevens, 78 S.W.3d at 822-23; State v. Suttles, 30 S.W.3d 252, 255 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 595-96 (Tenn. 1999); State v. Porterfield, 746 S.W.2d 441, 443-44 (Tenn. 1988)).
There are additional cases in which this Court has affirmed the death penalty for murder involving estranged lovers and other domestic disputes. See, e.g., State v. Clayton, 535 S.W.3d 829, 836-37 (Tenn. 2017) (defendant lethally shot his girlfriend and her parents); Smith, 868 S.W.2d at 583 (defendant murdered his estranged wife and her two sons from a prior marriage); State v. Johnson, 743 S.W.2d 154, 155-56 (Tenn. 1987) (defendant suffocated his wife with a plastic bag); State v. Cooper, 718 S.W.2d 256, 256 (Tenn. 1986) (defendant shot his estranged wife four times at her place of employment).
This Court has also affirmed the death penalty in cases where the circumstances of the murder involved severe beating. See, e.g., State v. Nichols, 877 S.W.2d 722, 725 (Tenn. 1994) (victim, discovered in a pool of blood, died two days after the defendant repeatedly hit her in the head with a piece of lumber while he raped her); State v. Barber, 753 S.W.2d 659, 660 (Tenn. 1988) (defendant murdered the victim by beating her multiple times in the head during a burglary); State v. McNish, 727 S.W.2d 490, 491 (Tenn. 1987) (victim died after being severely beaten with a vase).
Combining these two circumstances, as in the instant case, at least three death penalty cases have involved the brutal beating of a significant other. See, e.g., Faulkner, 154 S.W.3d at 62-63 (defendant killed his wife by hitting her in the head and face with a skillet and a metal horseshoe; the sole aggravating circumstance was subsection (i)(2)); Hall, 8 S.W.3d at 597 (victim, the estranged ex-wife of the defendant, sustained at least eighty-three separate wounds, including several blows to head, before she drowned in a pool); Porterfield, 746 S.W.2d at 444-45 (defendant, hired by the victim s wife to murder her husband, killed him by beating him in the head with a tire iron twenty-one times).
No two cases are identical, and we need not find an identical comparative
Based on our review of the record in this case and our review of other cases in which the death penalty was sought, we hold that the sentence of death imposed in this case is not disproportionate to the penalty imposed for similar crimes under similar circumstances. The Defendant is not entitled to relief on this basis.
CONCLUSION
For the reasons set forth above, we hold: (1) in light of sequential jury instructions given in the first trial, double jeopardy principles did not bar retrial on the felony murder count; (2) alleged prosecutorial misconduct in the first trial did not trigger double jeopardy protections; (3) the State did not have a duty to preserve the maroon Honda, so the trial court did not err in denying the Defendant s motion to suppress DNA evidence from the vehicle; (4) under
The sentence of death shall be carried out as provided on the 10th day of May, 2022, unless otherwise ordered by this Court or other proper authority. It appearing that the Defendant, Michael Rimmer, is indigent, the costs of this appeal are taxed to the State of Tennessee.
____________________________
HOLLY KIRBY, JUSTICE
APPENDIX
(EXCERPTS FROM THE DECISION OF THE COURT OF CRIMINAL APPEALS)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 5, 2018 Session
STATE OF TENNESSEE v. MICHAEL RIMMER
No. 98-01033, 98-01034 Chris Craft, Judge
No. W2017-00504-CCA-R3-DD
[Introduction omitted]
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and NORMA MCGEE OGLE, JJ., joined.
Paul Bruno, Nashville, Tennessee; and Robert Parris, Memphis, Tennessee, for the appellant, Michael Rimmer
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Andrew C. Coulam, Senior Counsel; Rachel M. Stephens and Pamela S. Anderson, District Attorneys General Pro Tem, for the appellee, State of Tennessee.
OPINION
PROCEDURAL BACKGROUND
[Omitted]
ANALYSIS
I. Sufficiency of the Evidence and Indictments
The Defendant contends that no evidence connected him to the crimes, but his argument focuses on whether the indictments provided him with adequate notice that other persons could have been involved in the crimes. The Defendant argues that the evidence showed that two other men committed the murder and that no evidence supports a theory of criminal responsibility. The State responds that ample evidence connected the Defendant to the murder and to the robbery and that “the fact that others might have been involved was not an element of the charged offenses.” Further, the State argues that criminal responsibility is a theory of guilt and need not be stated in an indictment.
A. Sufficiency of the Evidence
In determining the sufficiency of the evidence, the standard of review 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); see State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The 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)). A conviction may be based upon circumstantial evidence alone. See Dorantes, 331 S.W.3d at 380-81.
First degree murder is the unlawful, intentional, and premeditated killing of another.
As relevant here, first degree felony murder is “[a] killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery[.]”
Aggravated robbery is defined, in relevant part, as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear,” “where the victim suffers serious bodily injury.”
There was strong direct and circumstantial evidence establishing that the Defendant participated in the victim‘s murder and the aggravated robbery of the victim. The Defendant discussed his plan to kill the victim and to hide her body when he was previously incarcerated for assaulting the victim. Witnesses testified that a maroon car was seen at the motel, and the Defendant was seen with a maroon Honda the day after the victim‘s disappearance. The Defendant was driving the maroon Honda at the time of his arrest, and the car contained blood and DNA consistent with that of the victim. The motel bathroom contained the victim‘s blood and DNA, and the victim was never seen after the early morning hours of February 8, 1997. Testimony established that $600 and several sets of bed sheets were missing from the motel office. Some of the missing money was from a lockbox kept in a back room, and the victim kept the key to the box on her person. The Defendant told another inmate that he had been in the back room “doing something” after he shot the victim in the chest, that she “got up,” and he shot her in the head. One of the witnesses saw a man place an object rolled up in a blanket in the trunk of a maroon car that was backed into a parking place with its open trunk facing toward the building. The car sank when the object was placed in the trunk.Witnesses and investigators described a bloody scene indicative of a violent struggle, supporting the conclusion that the victim suffered serious bodily injury. Witness testimony also established that two perpetrators participated in the offenses. Mr. Allard testified that the Defendant confessed to being present at the motel and to actively participating in the attack against the victim. Several hours after the victim disappeared, the Defendant arrived at his brother‘s home Mississippi in a maroon Honda, which was muddy. The Defendant‘s
Following the victim‘s disappearance, the Defendant also disappeared for approximately one month. He stopped going to work and did not pick up his last paycheck, although his supervisor described the Defendant as reliable. Receipts found in the Honda showed that the Defendant had traveled throughout the country before his arrest in Indiana. After his arrest, he told Mr. Allard that he had murdered the victim and hid her body. The Defendant also attempted to escape from police custody on three occasions. We conclude that sufficient evidence supports the first degree premeditated murder, first degree felony murder, and aggravated robbery convictions.
B. Sufficiency of the Indictments
An individual accused of a crime has the right to be informed of the nature and cause of an accusation against him.
must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment . . . .
Our supreme court has said that an indictment is sufficient if it provides adequate information to enable the defendant to know the accusation against which he must defend, furnishes the trial court with an adequate basis for entry of a proper judgment, and protects the defendant from double jeopardy. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). The supreme court has held that “indictments which achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). In this regard, “specific reference to a statute within the indictment may be sufficient to place the accused on notice of the charged offense.” State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000). The indictment “need not allegethe specific theory or means by which the State intends to prove each element of an offense to achieve the overriding purpose of notice to the accused.” Hammonds, 30 S.W.3d at 300. Thus, the State is not required to assert a theory of criminal responsibility in the charging instrument. State v. Lemacks, 996 S.W.2d 166, 172-73 (Tenn. 1999).
The indictments were not included in the appellate record, but they were read into evidence at the trial. The aggravated robbery indictment in No. 98-01033 read as follows:
Count 1, The grand jurors of the State of Tennessee . . . present that [the Defendant], during the period of time between February 7th 1997, and February 8th, 1997, in Shelby County, Tennessee, and before the finding of this indictment, intentionally or knowingly did take from [the victim] a sum of money of value by violence or putting [the victim] in fear. And the victim . . . suffered serious bodily injury, in violation of
Tennessee Code Annotated 39-13-402 . . . .
The murder indictment in No. 98-01034 stated:
Count 1, The grand jurors of the [S]tate of Tennessee . . . present that [the Defendant] during the period of time between February 7th 1997, and February 8th, 1997, in [C]ounty of Shelby, Tennessee, and before the finding of
this indictment did unlawfully, intentionally, and with premeditation kill [the victim] in violation of Tennessee Code Annotated 39-13-202 . . . .Count 2[,] The grand jurors of the State of Tennessee . . . present that [the Defendant], during the period of time between February 7th, 1997, and February 8th, 1997, in Shelby County, Tennessee, did unlawfully, with the intent to commit robbery, kill [the victim] during the perpetration of or attempt to perpetrate robbery, in violation of
Tennessee Code Annotated 39-13-202 . . . .
The elements of aggravated robbery, premeditated murder, and felony murder were clearly set forth in the indictment, along with the statutes for each. The Defendant contends that the State‘s rebuttal closing argument included statements that other persons were involved in the crimes and that these assertions “surprised” him. However, the State is not required to set forth its theory of guilt in the indictment. The State‘s argument was based on the proof submitted at trial, including witness testimony that more than one person was participated in the crimes at the motel on the night the victim disappeared. The Defendant is not entitled to relief on this basis.
II. Double Jeopardy
[Omitted]
III. Motion to Suppress DNA Evidence
[Omitted]
A. Collateral Estoppel
[Omitted]
B. Due Process Violation
[Omitted]
IV. State‘s Opening Statement
The Defendant next asserts that the trial court erred in not striking the State‘s opening statement or in not declaring a mistrial when the prosecutor said that the car had been “taken.” The Defendant argues that the State‘s reference to the car implied it had been stolen, which violated the court‘s pretrial order prohibiting the State from referring to the car as stolen, pursuant to
In addition to the aggravated robbery and murder charges, the Defendant was indicted for the theft of the Featherstons’ maroon Honda. However, the trial court severed the theft charge prior to trial. The court determined that the theft was not part of the same criminal transaction as the murder and aggravated robbery. It also prohibited the State from eliciting evidence that the car had been stolen. However, the court permitted the State to show that the Defendant had control of the car before and after February 7, 1997, in order to establish that he was the perpetrator of the aggravated robbery and murder. It recognized that the Defendant‘s possession of the car before and after the victim‘s disappearance was “very material” to his identity as the perpetrator.
In the opening statement, the prosecutor said the following:
[F]rom February 8th through March 5th, [the Memphis Police Department] had been looking for [the Defendant] everywhere they could. They also knew that there was, obviously, some interest in this vehicle, maroon vehicle, and they
ended up locating that - - a friend that had worked with [theDefendant] owned a vehicle matching that description. And learned that that vehicle had been taken from outside [the Featherstons‘] home. And so the police are going to be on the lookout for this tag number and this vehicle.
At the conclusion of the statement, the Defendant objected to the State‘s use of the word “taken,” moved to have the statement stricken, and argued that it was grounds for a mistrial. According to the Defendant, the State‘s words gave a “clear implication” that he had stolen the car, violating the court‘s order. The State argued that its statement did not violate the court‘s ruling because the car could have been borrowed or have been missing due to a misunderstanding.
The trial court determined that the State did not violate its order or necessitate a mistrial. The court found that the State had a right to show that the Defendant took the car and that the car was missing but not that any crime was committed when the car was taken. The court emphasized that the State would not be allowed to elicit testimony about whether the Defendant had permission to take the car or whether the police were called in response.
Opening statements “are intended merely to inform the trial judge and jury, in a general way, of the nature of the case and to outline, generally, the facts each party intended to prove.” State v. Reid, 164 S.W.3d 286, 343 (Tenn. 2005). Opening statements are not evidence. State v. Thompson, 43 S.W.3d 516, 523 (Tenn. Crim. App. 2000). Trial courts should allow the parties to present “a summary of the facts supportive of the respective theories of the case, only so long as those ‘facts are deemed likely to be supported by admissible evidence.‘” State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012) (quoting Stanfield v. Neblett, 339 S.W.3d 22, 41-42 (Tenn. Ct. App. 2010)). Therefore, opening statements should “be predicated on evidence introduced during the trial” and should never refer “to facts and circumstances which are not admissible in evidence.” Sexton, 368 S.W.3d at 415.
A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when “no feasible alternative to halting the proceedings” exists. State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). “The granting or denial of a mistrial is within the sound discretion of the trial court.” State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996); see State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will only disturb that decision if the trial court abused its discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).
The Defendant cites to a single authority to support his argument that the use of the word taken during the opening statement was improper. In State v. James C. Greene, Jr., the defendant challenged his conviction on the basis that the State referred to inadmissiblehearsay in its opening statement. No. 03C01-9407CR00247, 1995 WL 564939, at *1 (Tenn. Crim. App. Sept. 26, 1995). The trial court prohibited the State from introducing evidence that the police had conducted surveillance on the defendant based on information that he was involved in illegal activity. During the opening statement, the prosecutor said, “[T]he Third Judicial Drug Task Force had information that [the defendant was] dealing drugs.” The defendant immediately objected to relevance and requested a mistrial. The court overruled the motion
On appeal, this court held that the defendant was not harmed by the prosecutor‘s statement and that a mistrial was not required. Id. at *4. The proof adduced at the trial showed that the defendant was an admitted drug abuser but was not a seller. The court concluded that the proof offered at the trial was not affected by the opening statement and that the jury acquitted the defendant of possession with intent to sell or deliver. Id.
James C. Greene, Jr. is distinguishable from the present case because in James C. Greene, Jr., the prosecutor explicitly defied the trial court‘s order. However, in the present case, the trial court concluded that the State‘s comment did not run afoul of the pretrial order and reiterated that the State was allowed to show that the Defendant had possession of the car before and after the victim‘s disappearance to establish his identity as the perpetrator. The court attempted to balance the State‘s right to use the evidence to prove the perpetrator‘s identity and the Defendant‘s right to fairness by excluding evidence of the theft. We conclude that the court did not abuse its discretion in refusing to strike the opening statement or to grant a mistrial. The Defendant is not entitled to relief on this basis.
The Defendant also contends that the use of the word taken was a Fifth Amendment due process violation. He did not object on this basis at the trial, and the general contention is the extent of his argument on appeal. “In this jurisdiction, a party is bound by the ground asserted when making an objection. The party cannot assert a new or different theory to support the objection . . . in the appellate court.” State v. Adkisson, 899 S.W.2d 626, 634 (Tenn. Crim. App. 1994). When a party asserts new grounds in the appellate court, the issue is treated as waived. Id. at 635. Furthermore, “[i]ssues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.”
Five factors are relevantwhen deciding whether an error constitutes “plain error” in the absence of an objection at trial: “(a) the record must clearly establish what occurred in the trial court; (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.‘”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42). All five factors must exist in order for plain error to be recognized. Id. at 283. “[C]omplete 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.” Id. In order for this court to reverse the judgment of a trial court, the error must be “of such a great magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at 642. A defendant carries the burden of proving that the trial court committed plain error. See State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).
The Defendant has not shown that the State‘s use of the word taken amounted to a violation of due process that adversely
V. Evidence of Prior Assault on Victim and Escape Attempts
[Omitted]
VI. William Baldwin‘s Testimony
The Defendant asserts that the trial court erred in prohibiting William Baldwin from testifying about a statement made by an MPD detective. The Defendant argues that exclusion of this evidence violated
William Baldwin was an evidence technician for the Johnson County, Indiana Sheriff‘s Department. Before Mr. Baldwin testified at the trial, the Defendant soughtpermission to question Mr. Baldwin outside the presence of the jury regarding a statement he overheard when he processed the car. According to the Defendant, Mr. Baldwin overheard an MPD detective say, “Well, it looks like the n----r did it.” The State opposed admission of the statement, arguing that Mr. Baldwin could not identify the person who allegedly made the statement and that it was inadmissible hearsay. The Defendant admitted that there was never an African-American suspect and that the evidence would not be offered to prove that an African-American committed the crime. However, he argued that the evidence was exculpatory. The Defendant surmised that if he could prove Detective Shemwell made the statement, the statement was relevant to Detective Shemwell‘s credibility. The trial court ruled that the evidence was irrelevant and inadmissible. The court further expressed skepticism that Mr. Baldwin heard what he thought he heard, noting that “Rimmer did it” sounded very similar and made more sense in context.
Evidence is relevant and generally admissible when 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.”
A trial court abuses its discretion when it applies an incorrect legal standard or reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence, however, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
We conclude that the trial court did not abuse its discretion by determining that the proffered evidence was not relevant. The Defendant admitted there was never an African-American suspect. The Defendant is not entitled to relief on this basis.
The Defendant also argues that the exclusion of this evidence “violated the Fifth Amendment to the United States Constitution.” This general contention is the extent of his argument. Although the Defendant raised the issue in his motion for a new trial, he did not contemporaneously object at the trial. See Adkisson, 899 S.W.2d at 634;
The excluded evidence in this case was not critical to the defense because the Defendant conceded that there was never an African-American suspect. A substantial right of the Defendant was not adversely affected. See Smith, 24 S.W.3d at 282. The Defendant is not entitled to relief on this issue.
Finally, the Defendant alleges that law enforcement‘s failure to preserve the videotape and to provide it to the defense violated Brady. The Defendant did not raise this issue at the trial or include the issue in his motion for new trial and his appellate argument is limited to one sentence. See Adkisson, 899 S.W.2d at 634;
Mr. Baldwin testified that he videotaped his inventory of the car and that the recording contained audio. The recording allegedly captured the statement, “[T]he n----r did it.” Mr. Baldwin testified that he thought he provided the recording to the MPD but that he was not sure. Mr. Baldwin explained that the recording was not listed on the computer inventory list of all the items turned over to the MPD. He thought that he gave “everything” to the MPD and said that he had no reason to retain the recording. However, he had no record of providing it to MPD.
The defense argued that Mr. Baldwin‘s testimony supported its theory that the MPD intentionally destroyed the recording because the recording pointed to someone other than the Defendant as a suspect and that the MPD, and Detective Shemwell in particular, had “tunnel vision” in investigating the Defendant.
The trial court found that no evidence supported the Defendant‘s theory that Detective Shemwell intentionally destroyed the recording. The court noted that the detective had no reason to destroy the recording to cover up the possible identity of an African American suspect because there was no indication that an African-American suspect existed. The court concluded that the “whole thing is just an absolute nonissue.” However, the court allowed the defense to ask Mr. Baldwin whether a videotape was made, whether he
In order to show a due process violation pursuant to Brady, the defendant must prove by a preponderance of the evidence that (1) he requested the information, unless it is obviously exculpatory, (2) the State must have suppressed the information, (3) the information must be favorable to the accused, and (4) the information must be material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Favorable evidence includes that which “challenges the credibility of a key prosecution witness.” Johnson, 38 S.W.3d at 56-57 (internal quotation marks and citation omitted). Evidence is material when “‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.‘” Id. at 58 (quoting Edgin, 902 S.W.2d at 390).
The Defendant has not shown that a clear and unequivocal rule of law was breached because the evidence does not show that the recording was material. A recording of one of the investigating detectives stating “the n----r did it” would not have cast doubt on the Defendant‘s identity as the perpetrator. Although the recording would have established that a detective engaged in unprofessional conduct, there is no reasonable probability that the jury would have acquitted the Defendant based upon the comment. The Defendant is not entitled to relief on this issue.
VII. Drawing of the Honda Backseat
The Defendant alleges that the trial court erred when it allowed into evidence a drawing of the backseat of the car. According to the Defendant, the drawing did “not reflect the true condition of the backseat” and was admitted in violation of
TBI agent and forensic serologist Samera Zavaro testified that she processed the car for blood evidence. When she located a reddish-brown stain, she conducted a presumptive blood field test. If the surface was fabric and resulted in a positive presumptive test, she took cuttings of the stained area and later conducted tests of the cuttings to determine whether they contained human blood. If the stain was found on a hard surface, she swabbed the surface and performed a second test using the swab. She identified photographs of the car, including the backseat. She testified
When the State attempted to introduce the backseat drawing, the Defendant objected on the basis that the drawing was not the best evidence and was not accurate. He claimed that the drawing depicted more blood than the photographs. The trial court overruled the objection, pointing to Agent Zavaro‘s testimony that the stains were difficult to see in the photographs alone. The court found that the drawing would assist the jury‘s understanding and admitted the evidence. The court noted that the accuracy of the drawing could be challenged on cross-examination.
Although the Defendant does not elaborate in his brief about how admission of the evidence violated Rule of Evidence 403, his objection at the trial was based on the danger of misleading the jury. The trial court admitted the evidence based upon a finding that the drawing would assist the jury in understanding where in the backseat the blood was located. The Defendant did not ask Agent Zavaro questions challenging the accuracy of the drawing. The court did not abuse its discretion in admitting the evidence, and the Defendant is not entitled to relief on this basis.
The Defendant also asserts that admission of the backseat drawing violated the Fifth Amendment of the United States Constitution. He did not object on this basis at the trial and did not adequately address the issue in his appellate brief. See Adkisson, 899 S.W.2d at 634;
An evidentiary ruling rarely rises to the level of a constitutional violation. See Powers, 101 S.W.3d at 397. Furthermore, we have already determined that admission of the backset drawing was proper under the Rules of Evidence. We conclude that the Defendant‘s allegation of constitutional error is without merit, and he has not established that admission was plain error. See, e.g., State v. Dustin Dwayne Davis, No. 03C01-9712-CR-00543, 1999 WL 135054, at *5 (Tenn. Crim. App. Mar. 15, 1999); State v. Allan Brooks, No. 01C01-9510-CC-00324, 1998 WL 754315, at *11 (Tenn. Crim. App. Oct. 29, 1998). He is not entitled to relief on this issue.
VIII. Admission of James Allard‘s Previous Testimony
The Defendant contends that the trial court erred in finding James Allard was unavailable and in allowing the State to present Mr. Allard‘s testimony through a transcript of the previous trial. He asserts that the State‘s efforts to locate Mr. Allard were “wholly insufficient” and that the prior testimony should have been excluded. The State responds that its efforts to locate Mr. Allard were reasonable and that the court did not err in declaring Mr. Allard unavailable and in admitting his previous testimony.
TBI Agent Charles Baker testified that he attempted to locate Mr. Allard through law enforcement databases as well as Google searches. He consulted “CLEAR,” which searched real estate records, criminal information, and both criminal and civil records. He also searched the State of Tennessee Justice Portal, which contained driver‘s license information, vehicle information, criminal histories, and Tennessee Department of Correction information. He further searched the National Crime Information
On cross-examination, Agent Baker said that he did not attempt to contact Mr. Allard‘s family because he did not have information about any family members. Agent Baker admitted that he was not aware Mr. Allard had been previously incarcerated in Indiana and said that he did not search for him through the Indiana Department of Correction.
The Defendant argued that the State‘s efforts were insufficient. He asserted that Mr. Allard had a long criminal history and that if the right methods had been utilized, the State should have been able to identify his family members and gain more information about his whereabouts. The trial court found that the State‘s efforts were reasonable. The court stated that it did not “know how else [the State] can go about finding a witness, if they don‘t know who the family members are, other than Google searches and database searches.” The court noted that Mr. Allard‘s imprisonment in Indiana nearly twenty years ago did not mean he was still in the state. The court found that the State was not required to send an investigator to every state in search of a witness.
The Constitution of the United States provides the accused in a criminal prosecution the right “to be confronted with witnesses.”
In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court announced the test to determine admissibility under the Confrontation Clause of hearsay offered against an accused. Testimonial statements may not be offered into evidence unless two requirements are satisfied: (1) the declarant/witness must be unavailable and (2) the defendant must have had a prior opportunity to cross-examine the declarant/witness. Id. at 68. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69.
Mr. Allard‘s previous testimony was testimonial; thus, the pertinent consideration is whether the State proved that the witness was unavailable. To accomplish this, “the State must prove that it made a good faith effort to secure the presence of the witness in question.” State v. Sharp, 327 S.W.3d 704, 712 (Tenn. Crim. App. 2010). “The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.” Crawford, 541 U.S. at 74-75. Good faith refers to the extent to which the State must attempt to produce the witness and is a question of reasonableness. Sharp, 327 S.W.3d at 712 (citing Ohio v. Roberts, 448 U.S. 56, 74 (1980)). The trial court‘s decision will be affirmed absent an abuse of discretion. Hicks v. State, 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).
Our supreme court considered what constitutes a good faith effort in State v. Armes, 607 S.W.2d 234 (Tenn. 1980). In Armes, the State attempted to subpoena the witness before trial and discovered that the witness had disappeared. Id. at 236. This disappearance resulted in a mistrial. Id. One week before the second trial and again one day before the second trial, the State attempted to subpoena the witness, but the State was unable to locate the witness. Id. At the trial the State attempted to present the witness‘s preliminary hearing testimony. Id. The State failed to provide any independent evidence of an attempt to locate the witness to prove the witness‘s unavailability other than a statement by the prosecutor. The supreme court held that “[t]he prosecuting attorney‘s statement to the Court concerning the efforts of the State‘s investigator to locate the witness cannot be considered as evidence of proof on the issue of the State‘s good faith effort.” Id. at 237. Our supreme court also determined that the State was on notice thatextra effort would be required to locate the witness because he did not appear for the first trial date. Id.
Unlike Armes, the State in the present case produced independent evidence of its efforts to locate Mr. Allard. Nearly twenty years had passed between the first trial and the State‘s attempts to locate Mr. Allard before the second trial. Agent Baker attempted to locate the witness using numerous search tools, including the NCIC database, which he explained was a national search through the FBI. Agent Baker developed one unsuccessful lead through a telephone number. The agent said he did not have information about Mr. Allard‘s family members and was unable to contact them to gain more information. This evidence supports the trial court‘s determination that the State made good-faith, although ultimately unsuccessful, efforts to locate the witness.
Given the passage of time and the independent evidence produced by the State, we conclude that the trial court did not abuse its discretion in determining Mr. Allard was unavailable. The Defendant is not entitled to relief on this issue.
IX. Rhonda Ball Johnson‘s Testimony
The Defendant argues that the trial court erred in allowing Rhonda Ball Johnson to testify about conversations she had with William Conaley, alleging that it was inadmissible hearsay. He asserts that her testimony violated
Mr. Conaley was incarcerated with the Defendant at Northwest Correctional Center in 1993. He testified that the Defendant expressed his discontent that the victim had put him in prison. The Defendant told Mr. Conaley that the victim‘s son, Chris Ellsworth, was going to receive money from a lawsuit and that the Defendant felt entitled to some of the money.
Mr. Conaley said that prior to his leaving on furlough, the Defendant asked him to relay a message to the victim. The Defendant wanted the victim to know that he expected to receive some of the money from the lawsuit and that if he did not get it, he would kill her. Mr. Conaley said that he relayed the threat to Ms. Johnson. However, Mr. Conaley did not report the threat to the authorities, and he was released on parole shortly thereafter.
On cross-examination, Mr. Conaley admitted that when the Defendant made the statements in 1993, Mr. Conaley had already been granted parole and was awaiting release. However, he admitted that when he spoke with law enforcement in 1997, the information might have gained him an earlier release. Nevertheless, he denied contacting law enforcement, and he said that it was Ms. Johnson who told the police about the Defendant‘s threat after the victim disappeared. Mr. Conaley requested that he be transferred to the “annex” to finish his sentence, which he admitted was “easy time” in the prison system. He said that after talking to the police about the Defendant, he was moved to the annex.
Ms. Johnson testified that she was the victim‘s niece. She was also childhood friends with Mr. Conaley. She confirmed that in 1993, Mr. Conaley told her about the Defendant‘s threat against the victim.
Generally, out-of-court statements offered to prove the truth of the matter asserted are inadmissible evidence. See
During Mr. Conaley‘s cross-examination, the defense implied that Mr. Conaley fabricated the Defendant‘s statement in 1997 because he faced years in prison and wanted to secure favorable treatment and early release. Thereafter, the State called Ms. Johnson, who testified that Mr. Conaley relayed the Defendant‘s threat to her in 1993, when Mr. Conaley had already been granted parole and had no motivation to lie in order to cut a deal with police. That testimony was properly admitted to rebut the Defendant‘s implication of recent fabrication, and this issue is without merit.
The Defendant also contends that admission of this evidence “was in violation of the Fifth Amendment of the United States Constitution.” The Defendant did not object on this basis at the trial and did not elaborate in his appellate brief as to how admission violated his constitutional rights. See Adkisson, 899 S.W.2d at 634;
X. Chris Ellsworth‘s Testimony
The Defendant asserts that allowing Chris Ellsworth, the victim‘s son, to show the jury his scars violated
At the trial, Mr. Ellsworth testified that he had been badly burned over 70% of his body in a water heater explosion and that he required extensive follow-up medical care. His mother was devoted to his care and frequently took him to LeBonheur Hospital as well as Shriners Hospital in Galveston, Texas, for treatment. She also worked with him daily on physical therapy for years after the accident. The State asked Mr. Ellsworth to show his scars to the jury. After the defense objected, the prosecutor explained that it wanted to show that the victim “was not the type of person that would have walked off without saying anything and leaving her children.” The trial court agreed that the evidence was relevant, pointing out that the defense had said in its opening statement that the victim might not be deceased. The court agreed that the evidence did not have “a lot of probative value” under Rule 403 but that there was minimal danger of unfair prejudice. Thereafter, Mr. Ellsworth displayed the scars on his forearms to the jury.
Evidence is relevant and generally admissible when 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.”
The evidence was minimally relevant to support Mr. Ellsworth‘s testimony about the severity of his injuries and to combat the defense‘s argument that the victim might still be alive. The scars were a visual representation of the injuries described in the witness‘s testimony, and no evidence showed that the Defendant had any involvement in Mr. Ellsworth‘s injury. Despite the minimal relevance of the evidence, the Defendant has not articulated any prejudice he suffered based on the evidence‘s admission. The trial courtfound that the probative value was not substantially outweighed by the danger of unfair prejudice, and the record supports its determination. The court did not abuse its discretion in allowing the jury to view the scars.
The Defendant asserts, in a cursory fashion, that admission of this evidence “was clearly done in violation of the Fifth Amendment of the United States Constitution,” an assertion that he did not raise at trial. See Adkisson, 899 S.W.2d at 634;
The Defendant has not established that admission of the evidence was prejudicial or improper. Likewise, we have considered his allegation of a constitutional error that violated his due process rights and have determined that it is without merit. The Defendant is not entitled to relief on this basis.
XI. Tim Helldorfer‘s Testimony Regarding William Conaley and James Allard
The Defendant alleges that the trial court erred in allowing Sergeant Tim Helldorfer to testify regarding statements made by Mr. Conaley and Mr. Allard, in
Sergeant Helldorfer testified that he interviewed Mr. Conaley in prison and that he obtained a statement from Mr. Allard in Johnson County, Indiana in 1997. Sergeant Helldorfer stated that Mr. Allard‘s previous testimony was consistent with the 1997 statement.
The Defendant objected, arguing that the statements were hearsay and were prior consistent statements. He contended that admitting the statements because a witness‘s credibility had been generally impeached was not the proper use of a prior consistent statement. The State asserted that the witness‘s credibility became an issue on cross-examination and that it was proper to show they had “previously made these statements” to different individuals. The Defendant argued that Mr. Conaley‘s 1997 statement was fabricated and that the State could not provide a statement he made to someone else as proof that it was not a fabrication.
The trial court stated that “the jury has a right to hear that [Mr. Allard and Mr. Conaley] gave consistent statements to . . . the police . . . .” It explained that the statements were being offered to bolster the witness‘s credibility. The court provided the following example to explain his ruling:
If someone sees something, let‘s say they see someone run a light. And then they testify that they saw the person run the light.
And the other side says, he didn‘t run the light, did he?
Yes he did.
And then [the witness] tells ten other people later on that he ran the light. I think the other side -- the first side has a right to put on the witnesses because he made that statement that he ran the light to many, many people over and over. To show his credibility on the stand, the credibility of his testimony.
It‘s not being offered as substantive evidence. It‘s being offered to show his credibility, that he made that statement to several people.
The court allowed the officer to testify that Mr. Conaley‘s statements to police and at the trial were consistent. The court determined that the State could show Sergeant Helldorfer the transcript of Mr. Allard‘s trial testimony and ask whether it was consistent with Mr. Allard‘s statement to police. However, the contents of the transcript could not be admitted.
Out-of-court statements offered to prove the truth of the matter asserted are inadmissible at trial. See
Here, the trial court‘s comments reflect that the prior consistent statements were allowed merely to bolster the witness‘s credibility. The statements admitted through Sergeant Helldorfer were not made “before any improper influence or motive to lie existed.” State v. Herron, 461 S.W.3d 890, 905 (Tenn. 2015) (citing Sutton v. State, 291 S.W. 1069, 1070 (Tenn. 1927)). The defense‘s cross-examination
Recognizing that all errors are not equal, our supreme court has established three categories of error—structural constitutional error, non-structural constitutional error, and non-constitutional error. Powers, 101 S.W.3d at 397; 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 dictate the standards to be applied when determining whether a particular error is harmless. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). A trial court‘s error in admitting evidence under the Tennessee Rules of Evidence falls into the category of non-constitutional error, and harmless error analysis under
The Defendant has not carried his burden in showing that he was prejudiced by admission of this evidence. Indeed, he has not offered any argument related to the prejudicial effect of this error. After considering the entirety of the evidence presented at the, we conclude that the error was harmless. The defense was able to cross-examine Mr. Conaley and Mr. Allard about their motivations to lie in exchange for more favorable treatment. The substance of the testimony was already in evidence, and the jury was instructed not to consider the consistent statements as substantive evidence. Further, overwhelming circumstantial evidence established the Defendant‘s guilt, including his previous relationship with the victim and motive for harming her, his threats to kill the victim, his confession to his cellmate, his possession of a car matching a description of the car seen at the motel, the presence in the car of blood and DNA matching the victim‘s, and his actions in the days following the victim‘s disappearance. Accordingly, the error was harmless, and the Defendant is not entitled to relief on this basis.
The Defendant also maintains that admission of this evidence violated the
XII. Trial Court‘s Limitation of Sergeant Helldorfer‘s Testimony
The Defendant contends that the trial court erred in limiting the defense‘s questioning
A. Positive Identification
During its examination of Sergeant Helldorfer, the defense asked whether he was “aware that there was a positive identification made, that Billy Voyles was positively identified in the case.” The prosecution objected to the question, arguing it was hearsay. The court overruled the objection because it was admissible as a prior identification but stated that there was a question as to whether a witness made a “positive” identification. Defense counsel then said, “I will take the word positive out if that is the problem.” The court additionally noted that the Defendant needed to establish that the questioning was related to Mr. Darnell‘s identification of Mr. Voyles. The defense again agreed and asked Sergeant Helldorfer whether “Mr. Darnell had identified Billy Wayne Voyles as an eye witness as being on the scene at the time during [the] investigation.” Sergeant Helldorfer answered affirmatively.
The Defendant also alleges that this limitation violated his Fifth Amendment rights under the
B. Towing Slip
During cross-examination, the defense showed Sergeant Helldorfer three documents, one of which was a towing slip for the Honda. When asked whether he recognized them, he replied that he only recognized the towing slip. The Defendant questioned
Before a document is admitted into evidence, the party seeking admission generally must authenticate the document. State v. Troutman, 327 S.W.3d 717, 722 (Tenn. Crim. App. 2008); See
The Defendant again asserts a Fifth Amendment challenge to this issue, which was not a basis for objection at trial and is not adequately argued in his brief. See Adkisson, 899 S.W.2d at 634;
XIII. Joyce Carmichael‘s Testimony
Joyce Carmichael is the official records officer for the Tennessee Department of Correction. Ms. Carmichael testified that Tommy Voyles and the Defendant were both incarcerated at Lake County Regional Correctional Facility during a five-month period in 1992. Later in the trial, another witness testified that Tommy and Billy Voyles were related and that the witness had seen them together, although the witness did not specify how they were related. Before her testimony, the defense objected to the relevance of evidence that Tommy Voyles had been incarcerated with the Defendant previously. The prosecutor argued that there was more than one person involved in the victim‘s disappearance and that Tommy Voyles might have been involved. Thus, the State wanted to show the connection between the Defendant and Tommy Voyles. The defense pointed out that the only testimony regarding Tommy Voyles was that he had been previously married to the victim. The State further explained that “there appear to be multiple people involved in this” and that one of the individuals involved was identified by a
The evidence does not support the trial court‘s determination that evidence attempting to connect the Defendant with Tommy Voyles was relevant. The evidence was too remote to be relevant to a material issue in the case.
XIV. Prior Testimony of Unavailable Witnesses
The Defendant contends that the trial court erred in allowing previous testimony from witnesses, along with related exhibits, who were unavailable at the second trial. He alleges that the admission of this testimony was unfair because the witnesses were questioned by his previous counsel, who were found to be constitutionally ineffective. The State responds that each of the unavailable witnesses was subject to cross-examination and that counsel from the Defendant‘s first trial were not ineffective in questioning witnesses.
Pursuant to
The prior testimony of eight witnesses was read into evidence at the Defendant‘s trial. With the exception of one witness, the prior testimony was from either the Defendant‘s preliminary hearing or his first trial. The exception was the testimony of Dixie Presley, who testified at the previous trial and at the Defendant‘s post-conviction evidentiary hearing. The post-conviction
The record reflects that the Defendant had an opportunity to, and in fact did, cross examine each witness. The Defendant had a similar motive to develop the testimony of these witnesses during examination in the prior proceedings in which he was facing the same charges. Other than the exception discussed above, the Defendant was granted post conviction relief on the basis that his counsel were ineffective in investigating the case, not in examining witnesses. The Defendant has not cited any cases holding that prior testimony is inadmissible when post-conviction relief is granted for a reason unrelated to counsel‘s examination of witnesses. Accordingly, he is not entitled to relief on this basis.
The Defendant also argues that admission of this prior testimony violated his Fifth Amendment rights. He did not object on this basis at trial and does not elaborate on this issue in his brief. See Adkisson, 899 S.W.2d at 634;
Because we have determined that admission of the prior testimony was proper, we conclude that the Defendant has not shown that his due process rights were violated in this respect. No clear and unequivocal rule of law was breached, and the Defendant is not entitled to relief on this basis.
XV. Admission of Richard Rimmer‘s Prior Inconsistent Statements
The Defendant alleges that the trial court should not have admitted Richard Rimmer‘s prior inconsistent statements and related exhibits as substantive evidence. The State asserts that this evidence was properly admitted as a prior inconsistent statement and as past recollection recorded.
At trial the Defendant‘s brother, Richard Rimmer, testified that he could not recall giving a statement to the police in 1997. The State showed Mr. Rimmer a copy of a statement dated February 18, 1997, and although he recognized his signature on the statement, he did not remember giving the statement. The prosecutor asked Mr. Rimmer about each question and answer provided in the statement. In two instances, he denied providing a particular answer, but he mostly stated that he had no memory of the statement. He testified that he had suffered several head injuries, which impacted his memory. The State also showed him drawings he allegedly made, but he denied making the drawings.
The State sought to have the statement and drawings admitted as substantive evidence under
The defense called Mr. Rimmer‘s mother, Sandra Rimmer, who testified that Mr. Rimmer had received disability benefits since 1990 or 1991 due to a head injury that caused brain damage. She stated that his daily activities were impacted and that he “sometimes . . . thinks things are happening [that were] not happening.” Ms. Rimmer admitted that in 1997, Mr. Rimmer was capable of living on his own, managed daily activities without assistance, and worked to support himself. She also said he was competent to enter into a lease agreement.
The State called Sergeant Helldorfer, who testified that he met with Mr. Rimmer on February 13 and 18, 1997. His impression was that Mr. Rimmer fully understood the questions asked and answered them appropriately. Sergeant Helldorfer said that he did not ask leading questions and that Mr. Rimmer provided the details. The February 18 conversation was memorialized in a written statement. The officer also testified about Mr. Rimmer‘s drawings. One drawing depicted the location of the blood in the backseat, and the other was a drawing of the shovel, of which the Defendant asked Mr. Rimmer to dispose. Sergeant Helldorfer confirmed that the statement and drawings about which Mr. Rimmer had been questioned were those obtained by Sergeant Helldorfer on February 18, 1997.
In assessing whether the evidence was trustworthy, the trial court noted the level of detail contained in Mr. Rimmer‘s answers. The court further found that the statement appeared to come from a competent person and not from someone who was intellectually disabled. The court determined that the statement was given under circumstances indicating its trustworthiness.
The trial court determined that the statements Mr. Rimmer denied making were admissible pursuant to
Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
- The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.
- The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.
- The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was
made under circumstances indicating trustworthiness.
This rule has been interpreted to apply when a testifying witness claims a lack of memory. State v. Davis, 466 S.W.3d 49, 64 (Tenn. 2015).
Additionally,
[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness‘s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The Defendant alleges that Mr. Rimmer‘s prior statement should have been considered by the jury for impeachment purposes only. However,
The Defendant again asserts a general Fifth Amendment challenge to the admission of this evidence, although he did not object on that basis at trial and does not provide meaningful argument on the issue in his brief. See Adkisson, 899 S.W.2d at 634;
XVI. Kenneth Falk‘s Testimony
The Defendant argues that the trial court erred in prohibiting the testimony of attorney Kenneth Falk regarding the success of a lawsuit concerning conditions at the Johnson County Jail in Indiana. The State responds that the evidence was properly excluded as it was irrelevant.
The Defendant offered the testimony of Mr. Falk to establish that the Defendant‘s escape attempts were related to the conditions at the jail and did not reflect a consciousness of guilt. The State objected on relevancy grounds. The trial court allowed the testimony to rebut the implication that his escapes were based on guilt. However, the court prohibited Mr. Falk from testifying about any details the Defendant discussed with him.
The trial court did not abuse its discretion in limiting Mr. Falk‘s testimony. The defense‘s stated purpose in offering the evidence was to provide a reason, other than guilt, for the Defendant‘s escape attempts. Mr. Falk established that the Defendant complained about the conditions and that a lawsuit was filed as a result. The court did not abuse its discretion in limiting the details of the lawsuit, including whether it was successful. The Defendant is not entitled to relief on this basis.
The Defendant maintains that excluding this evidence violated the
To determine whether the exclusion of this testimony to the level of a constitutional violation, we consider the following: (1) whether the evidence is critical to the defense, (2) whether it bears sufficient indicia of reliability, and (3) whether the interest supporting exclusion is substantially important. See Brown, 29 S.W. 3d at 433-34.
The Defendant has not proven that the evidence was critical to his defense, and therefore, no substantial right was adversely affected. As noted above, the Defendant was able to establish through Mr. Falk‘s testimony that conditions at the jail led the ACLU to file a lawsuit, which provided an alternative reason for the Defendant‘s escape attempt. We cannot conclude that additional testimony that the lawsuit was successful would have changed the outcome of the trial. Accordingly, plain error relief is not warranted.
XVII. Marilyn Miller‘s Testimony
The Defendant asserts that the trial court erred in not allowing Marilyn Miller to give an opinion on the length of time that the maroon Honda should have been kept by law enforcement. He alleges that her testimony would have supported his request for a Ferguson jury instruction. He claims that exclusion of this testimony violated Rules of Evidence 401 and 402. The State contends that the exclusion was proper and argues that the decision to provide a Ferguson instruction was a question of law for the court and that Dr. Miller‘s testimony would not have assisted the jury. The State further responds that the proffered testimony was outside the scope of Dr. Miller‘s expertise.
Dr. Miller testified that she was an associate professor of forensic science at Virginia Commonwealth University. She had a bachelor‘s degree in chemistry, a master‘s degree in forensic chemistry, and a doctorate in education. Before teaching, she spent fourteen years working as a forensic scientist and a crime scene investigator for three law enforcement agencies. Her duties included responding to and investigating crime scenes and analyzing evidence in a laboratory. She had taught for twenty-two years in the field of forensic science and crime scene investigation. The
The defense asked Dr. Miller whether she had an opinion regarding the length of time the maroon Honda should have been retained by law enforcement. The State objected, and the trial court sustained the objection. The court acknowledged that Dr. Miller was a crime scene expert but found that it was improper for her to give an opinion about the duty to preserve evidence as it related to Ferguson.
The Defendant asserts that this limitation violated Rules of Evidence 401 and 402. As previously discussed,
The Defendant contends that Dr. Miller‘s testimony would have assisted the jury in understanding “that the defense was not given ample opportunity to inspect and test the maroon Honda.” However, we agree with the State that this matter was relevant to whether there was a duty to preserve, and that was an issue solely within the purview of the trial court. Accordingly, the court did not abuse its discretion in ruling the testimony was inadmissible.
The Defendant contends that exclusion of this evidence violated the Fifth Amendment. Because he did not raise this issue at trial and does not provide argument regarding this issue in his appellate brief, our review is limited to plain error. See Adkisson, 899 S.W.2d at 634;
XVIII. Documents Related to Lawsuit against Shelby County Jail
Next, the Defendant asserts that the trial court should have admitted into evidence another prisoner‘s affidavit about the prisoner‘s experiences in the Shelby County Jail and about a 2000 contempt order. The State disagrees, arguing that these documents lacked probative value because they related to the jail‘s conditions when the Defendant was no longer confined there and that the affidavit was inadmissible hearsay.
Attorney Robert Hutton testified that in 1996 or 1997 he filed a lawsuit against the Shelby County Jail, alleging that jail conditions violated the
The trial court found that the general information relating to the conditions at the jail and the county‘s admission that they were unconstitutional were admissible. It excluded evidence of specific instances of conduct at the jail, unless the Defendant could establish a link between himself and the conduct. The court stated that the Defendant had “a right to show that the jail conditions were bad, as a possible reason that he might escape, but as far as showing that some gang member raped some other gang member in the jail, . . . that is far [afield].” Thus, the court permitted the defense to present the consent order in which Shelby County admitted the conditions were unconstitutional but not the additional litigation documents because “the majority of which took place when [the Defendant] was not in [the] jail.”
The purpose of the evidence was to provide a reason for the Defendant‘s attempted escape other than a consciousness of guilt. Mr. Hutton‘s testimony and the consent order established that conditions at the jail were unconstitutional and that the County agreed to make changes. The excluded documents generally detailed specific instances of violence and sexual assault, but the incidents were not connected to the Defendant, and he did not establish the excluded documents relevance. Therefore, the trial court did not abuse its discretion by prohibiting the admission of the relevant documents, and the Defendant is not entitled to relief on this basis.
The Defendant asserts that the exclusion of this evidence was a violation of the
XIX. Non-Capital Sentencing
Finally, the Defendant raises one sentencing issue related to the application of an aggravating factor relative to his aggravated robbery conviction. He asserts that proof did not support a finding that he was a leader in the offense and that the trial court erred by applying this factor and ordering the sentence for aggravated robbery to be served consecutively to the death sentence. The State responds that the Defendant has waived this issue for failing to include a transcript from this portion of the penalty phase. Alternatively, the State asserts that the evidence supported application of the enhancing factor.
As the appellant, it was the Defendant‘s burden to prepare an adequate record for appellate review. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In the absence of an adequate record, this court must presume that the trial court‘s ruling was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); see also State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993) (holding that when the appellant contends that the sentence is excessive but does not include a transcript from the sentencing hearing, the
Without a transcript of the non-capital sentencing hearing, this court cannot evaluate the trial court‘s application of the enhancement factor, and we presume the court‘s action was correct. The Defendant is not entitled to relief on this basis.
XX. Mandatory Review
[Omitted]
[CONCLUSION]
[Omitted]