State of Tennessee v. Stephan Richardson ( 2018 )

02/09/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 11, 2017
STATE OF TENNESSEE v. STEPHAN RICHARDSON
Appeal from the Criminal Court for Shelby County
No. 13-01971 Glenn Ivy Wright, Judge
No. W2016-02227-CCA-R3-CD
Following a jury trial, the Defendant, Stephan Richardson, was convicted of aggravated
robbery, aggravated burglary, employment of a firearm during the commission of a
dangerous felony, and unlawful possession of a handgun by a convicted felon. On
appeal, the Defendant contends that (1) the trial court erred by failing to suppress his
statement because the “officers unreasonably delayed booking [him] in order to” secure
his statement and because his statement was involuntarily given; (2) his conviction for
employing a firearm during the commission of a dangerous felony is invalid because the
indictment failed to specify the predicate dangerous felony; and (3) the trial court erred
by refusing to sever or bifurcate the unlawful possession of a handgun by a convicted
felon offense from the other three counts, thereby, preventing him from receiving a fair
trial.1 Following our review, we affirm the Defendant’s convictions for aggravated
robbery, aggravated burglary, and unlawful possession of a handgun by a convicted
felon. However, because the jury was charged with a nonexistent crime regarding the
employment of a firearm during the commission of a dangerous felony conviction, we
reverse that conviction and remand that count for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
Affirmed in Part; Reversed in Part; Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
Brett B. Stein (at trial and on appeal) and Robert Golder (on appeal), Memphis,
Tennessee, for the appellant, Stephan Richardson.
1
For the sake of clarity, we have reordered the issues as presented by the Defendant in his appellate brief.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin E.D. Smith, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers III,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case arises from the November 29, 2012 home invasion of the residence of
Candid Sanders (“the victim”) and Darrell Peterson located in Memphis. Due to the
Defendant’s participation in the home evasion, a Shelby County grand jury returned a
four-count indictment against the Defendant, charging him with aggravated robbery
(count one), aggravated burglary (count two), employing a firearm during the
commission of a dangerous felony (count three), and being a convicted felon in
possession of a handgun (count four). See Tenn. Code Ann. §§ 39-13-402, -14-403, -17-
1307, -17-1324. After a jury trial on May 2 and 3, 2016, the Defendant was found guilty
as charged. Thereafter, the trial court sentenced the Defendant to eight years for the
aggravated robbery conviction, three years for the aggravated burglary conviction, ten
years for the employing a firearm during the commission of a dangerous felony
conviction, and three years for being a convicted felon in possession of a handgun. The
three-year aggravated burglary sentence and ten-year employing a firearm during the
commission of a dangerous felony sentence were to run consecutively to one another,
otherwise all sentences were to run concurrently, resulting in an effective thirteen-year
sentence.
A. Motion to suppress the Defendant’s statement. Prior to trial, the Defendant
filed an omnibus motion seeking suppression of his statement that he gave to police
following his arrest pursuant to a warrant. In the motion, the Defendant argued as
follows:
It is the [D]efendant’s position that it is the policy, practice, and
procedure[] of the Memphis Police Department that upon arresting an
individual, they put the fictitious charge of “hold for investigation.” The
intent of this policy, practice[,] and procedure[] is to secure a statement
from the [D]efendant before formally booking and processing the
[D]efendant. Once the [D]efendant is formally booked and processed, he
must be brought before a committing magistrate. Once the [D]efendant is
brought before a committing magistrate, the [D]efendant can, then, invoke
his Fifth [A]mendment rights. This would foreclose any opportunity of
statements being given to the arresting officers. In other words, the purpose
and intent of the delay, is to secure incriminating evidence from a
[D]efendant before he is formally charged and brought before [the]
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committing magistrate. The [D]efendant would respectfully submit that
such a statement is in violation of due process.
A hearing was held on the motion. At the outset of the hearing, defense counsel
contended,
[T]he proof will show [the Defendant] will testify that after he was booked
and processed when they took him up to the office to talk to him, they had
asked [the Defendant] questions . . . before giving him his formal Miranda
[r]ights[,] which basically gave them the proper information to ask the
questions they did. So . . . based upon what he told them informally before
his Miranda [r]ights, they were in a much better position to go ahead and . .
. ask him these formal questions[.]
Thereafter, Memphis Police Department (“MPD”) Sergeant Kevin Brown testified
that the Defendant was arrested on December 18, 2012, pursuant to a warrant. According
to Sergeant Brown, the Defendant arrived at the Robbery Squad Office after 4:00 p.m.
that day, and because the lead investigator, Sergeant Eric Petrowski, was “gone for the
day[,]” Sergeant Brown interviewed the Defendant. Sergeant Minga also participated in
the interview.2
Sergeant Brown described the initial phase of his interview process:
We introduce ourselves. . . . We normally ask do you need anything[.] We
always provide water, restroom. If you need some food, we find you food.
. . . Then once we introduce ourselves, we may speak briefly just nothing
in regards to the case. And once we get ready to speak in regards to the
case, we advise the Miranda [r]ights [and] . . . the Waiver of Rights form is
presented.
According to Sergeant Brown, “these [were] the general practices” of the Robbery Squad
Office, in addition to also being Sergeant Brown’s usual practices.
Sergeant Brown explained that, prior to advising an interviewee of their Miranda
rights, he inquired if that person was literate, was under the influence of any drugs, or
was sick. He proceeded to advise the interviewee of their Miranda rights, had them read
the rights aloud, and had them sign the Waiver of Rights form indicating whether they
wished to speak with him. Sergeant Brown followed this procedure at the beginning of
his interview with the Defendant, and at 5:01 p.m., the Defendant signed the Wavier of
Rights form indicating his willingness to speak with Sergeant Brown without an attorney
2
Sergeant Minga’s first name is not apparent from the record.
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present. The Defendant also initialed each individual right on the form, and the form
contains the following provision: “No promises or threats have been made to me and no
pressure, force, or coercion of any kind has been used against me.” Additionally,
Sergeant Brown averred that he did not threaten the Defendant during the interview and
that he “tried to be as casual as possible” with the Defendant. Furthermore, Sergeant
Brown did not recall the Defendant’s being hostile at any point in the interview.
Sergeant Brown was given a copy of the Defendant’s statement to review.
Sergeant Brown explained that the document was “a formalized written version” of the
Defendant’s interview. Sergeant Brown detailed how the statement was prepared: first,
the Defendant gave an “oral statement”; the Defendant was again advised of his Miranda
rights before the statement was reduced to writing; the Defendant initialed that he
understood these rights; the statement was typed in a question-and-answer format by
Sergeant Brown; and the Defendant reviewed the statement for accuracy before signing
the document.
On cross-examination, Sergeant Brown testified that, if an individual is arrested
pursuant to a warrant, he or she will usually be interviewed before being “booked and
processed in the jail”; moreover, based upon Sergeant Brown’s best recollection, that
procedure was followed in this case. According to Sergeant Brown, the Defendant was
arrested “by uniform patrol officers” and was brought to the Robbery Squad Office under
the direction of the lead investigator. Sergeant Brown denied that the Defendant was
brought to the Robbery Squad Office first in order to gain “a tactical advantage by
[obtaining] a statement” from the Defendant, clarifying that “[s]ometimes [the interview]
takes place because we need to find out who suspect Number 2 is.”
Sergeant Brown was aware at the time of the interview that the Defendant had
been identified in a photographic lineup by the victims and that the victims had given
statements. Although it was the lead investigator that prepared the warrant in this case,
Sergeant Brown was confident that it was issued with probable cause for the Defendant’s
arrest. Defense counsel then inquired,
And then that he had probable cause but notwithstanding that fact,
[the Defendant] was not booked and processed into the jail. And you just
correct me if I’m wrong because once he’s booked and processed in the jail,
then he has a right to . . . go to a committing magistrate and have a
[p]reliminary [h]earing. I mean have an arraignment. Is that basically
correct?
Sergeant Brown replied, “Well, the judicial procedures that the commissioners and the
pretrial individuals, I can’t get into their policy. But the lead investigator does have the
discretion to have an individual brought to the office prior to being booked into the jail.”
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Sergeant Brown confirmed that, after the Defendant gave his statement, “he was taken to
and turned over to the Shelby County Sheriff.”
Defense counsel then asked Sergeant Brown about the MPD’s booking and
processing procedures, and the State objected on relevancy grounds. Defense counsel
responded by citing State v. Bishop, 431 S.W.3d 22 (Tenn. 2014), and County of
Riverside v. McLaughlin,3 500 U.S. 44 (1991), as standing for the proposition that, when
a suspect is arrested and detained, he or she can only be held for booking and processing
and not “for the specific reason of securing other evidence” and that any statement
obtained during this illegal detention is inadmissible as fruit of the poisonous tree.
According to defense counsel, if probable cause supported the arrest, then “the first thing
you got to do is take them . . . for booking and processing.” The trial court permitted this
line of questioning to continue.
Sergeant Brown acknowledged that the Defendant’s interview was not video- or
audio-recorded. However, according to Sergeant Brown, the “supervisor” listened and
watched interviews via a monitor “to make sure that everything [was] okay.” In Sergeant
Brown’s opinion, it was not necessary to take a video.
Sergeant Brown was then asked about specifics during the initial phase of the
Defendant’s interview. Defense counsel asked, “So . . . when [the Defendant] got in
there, . . . who made the first word? Did [the Defendant] say what am I here for? Or did
you . . . or one of the other officers say you’re here for whatever reason?” Sergeant
Brown responded, “I cannot speak on . . . who spoke first. I can state the normal practice
is for us to introduce oursel[ves] when we walk into the room.” Sergeant Brown stated
that he did “the same thing every time” he interviewed a suspect, and he reiterated that it
was “not [his] practice to speak about [the] case[,] period[,]” until the individual was
advised of his or her rights. Sergeant Brown affirmed that he did not tell the Defendant
the type of crime involved or that the Defendant had been identified prior to his issuing
Miranda rights to the Defendant.
MPD Sergeant Eric Petrowski testified that he was the lead investigator assigned
to this case, that he spoke with the victims in this matter, and that the Defendant had been
identified as a perpetrator. Based upon his investigation, Sergeant Petrowski went before
a commissioner on December 17, 2012, and secured an arrest warrant for the Defendant.
According to Sergeant Petrowski, the Defendant was arrested the next day by the Shelby
County Fugitive Bureau. Sergeant Petrowski was asked, “When you issue an arrest
warrant are there multiple ways defendants are brought into custody?” He replied,
3
The transcript styles the name of the case as County of Riverdale v. California. However, we cannot
find any such styled case. The reference seemingly refers to the case of County of Riverside v.
McLaughlin.
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Yes. We would put out a flyer within our own department that this
person is an actual wanted party. And in turn I think I left a note with
Fugitive either on the warrant or by email that if [the Defendant is]
located[,] I’d like to be notified so he could be interviewed.
On cross-examination, Sergeant Petrowski testified that the “flyer” was sent out to
the entire MPD and that the flyer requested Sergeant Petrowski be notified upon the
Defendant’s arrest. Additionally, Sergeant Petrowski agreed that “the purpose” of the
flyer was to “go ahead and obtain a statement from the [D]efendant to help [the] case.”
Moreover, Sergeant Petrowski testified that it was no longer the MPD’s practice to place
“a hold for investigation” status on an arrestee after he or she had been booked and
processed.
Sergeant Petrowski was then presented with the arrest warrant for the Defendant.
According to Sergeant Petrowski, the warrant provided that the Defendant was arrested
on December 18 at 9:09 a.m. Sergeant Petrowski confirmed that, following the
Defendant’s arrest, he would have been taken to the county jail. Also, it appeared from
the arrest warrant that the Defendant was “physically” at the jail about an hour later,
shortly after 10:00 a.m. However, Sergeant Petrowski did not recall what time he was
notified that day of the Defendant’s arrest.
The Defendant testified that he was driving “to a corner store” on the morning of
December 18, 2012, when he was arrested by several police officers in “[u]nmarked
cars.” According to the Defendant, the police officers stopped his car, placed him in the
back of a police car, and took him to the county jail. The Defendant believed he arrived
at the jail earlier than 10:00 a.m., sometime “[b]etween 7:30 and nine.”
According to the Defendant, the officers “dropped [him] off” at “intake” when he
arrived at the jail. The Defendant stated that “the first person [he] saw in intake” told him
“what [he was] there for[.]” In addition, he was instructed to “have a seat,” and they
began “[p]rocessing him into the system.” He was asked his “name, address, date of birth
and all,” and his responses were typed into the computer. According to the Defendant,
the intake process lasted “[j]ust a few minutes[,]” and he was then placed in a jail cell for
“a couple of hours” before being questioned in the Robbery Squad Office by Sergeants
Brown and Minga.
The Defendant testified that, while en route to the Robbery Squad Office, the
officers spoke with him briefly “but nothing pertaining to the case.” Once inside the
interrogation room, the officers introduced themselves to the Defendant and “spoke
briefly about the case.” The Defendant kept asking the officers why he was there, and the
officers reluctantly told him that he “was picked out of a photo lineup for a robbery
because of a tattoo” on his left arm. According to the Defendant, he was also asked if he
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knew the victim, and he responded that he did not. The Defendant stated that this
discussion took place before he was advised of his Miranda rights or signed the Waiver
of Rights form. The Defendant agreed that, once given his Miranda protections, he gave
a formal statement. He further confirmed that he was allowed the opportunity to correct
his statement.
On cross-examination, the Defendant acknowledged that he reviewed the Advice
of Rights with Sergeant Brown and that he understood those rights prior to giving his
written statement. The Defendant also agreed that he had a chance to review his formal
written statement and that he signed the document without making any corrections.
The attorneys then argued the motion. The prosecutor noted that the Defendant
“was arrested under a warrant” and that “[t]here was no hold for investigation.” The
prosecutor then averred,
We have an interview that was given pursuant to that arrest. The
[D]efendant of course had a chance to invoke his rights. It was voluntary in
nature. Therefore, under any law under the Fourth Amendment, under any
law I can conceive of this was an admissible statement given by the
[D]efendant. And, again, . . . I have no opportunity to respond to case law
or argument because it is not included in the motion.
Defense counsel replied by citing Bishop, McLaughlin, and State v. Huddleston,
924 S.W.2d 666 (Tenn. 1996), as support for the “pretty well-known” assertion that,
“once there’s probable cause[,] you can’t hold, detain anybody for the specific purpose of
securing further evidence[.]” Defense counsel continued:
[T]he proof in this record is that he was arrested, given the proof—
the inference most favorable to the State, he reached the Shelby County
[jail] for booking and processing at 10 in the morning, and the statement
was given three hours4 later. He testified there was—they booked and
processed and the person that booked and processed him was typing in the
computer. . . .
Defense counsel then noted Sergeant Petrowski’s testimony that a flyer was sent
out to the entire MPD to “hold for interview” upon the Defendant’s arrest and that the
Defendant was so held. Defense counsel also noted that contradictory testimony was
given by the Defendant and Sergeant Brown regarding whether the Defendant was given
proper Miranda warnings. Defense counsel persisted:
4
It is unclear how defense counsel arrived at this calculation.
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I think they held him for three hours and lo and behold after he gives the
statement, incriminating statement, then they say he’s booked and
processed. But the proof in the record is by the arrest report he was
arrested at 10 o’clock in the morning and booked and processed. So they
can’t have it both ways.
And I would submit if the proof backs up what [the Defendant] says
he was booked and processed on a warrant already showing probable cause,
I think from then on you have to—that any hold on him, you know, for the
purpose of securing a statement, i.e. hold for an interview is certainly
during the—during an illegal detention and is exactly the issue that
Huddleston addresses . . . .
By written order, the trial court subsequently denied the Defendant’s motion to
suppress his statement as transcribed by Sergeant Brown. The trial court first determined
that the Defendant voluntarily, knowingly, and intelligently waived his Miranda
protections when he signed the Waiver of Rights form. The trial court then addressed the
Defendant’s argument “that there was a delay in taking [him] to a magistrate pursuant to
[the Tennessee Rules of Criminal Procedure] and []Huddleston, . . . and []McLaughlin,”
and concluded that the Defendant was not entitled to relief. The trial court reasoned that,
“[i]n Huddleston, the Tennessee Supreme Court found a delay of [seventy-two] hours
violated the requirements of [Tennessee] Rule [of Criminal Procedure] 5[,]” but that the
Defendant, to the contrary in this case, “was arrested on a warrant as opposed to a
warrantless arrest.” The trial court continued, “[T]he [D]efendant was properly booked
and processed through the jail procedure immediately and shortly thereafter taken to the
Robbery Squad Office.”
B. Motions regarding counts three and four. In the same omnibus motion wherein
he sought suppression of his statement, the Defendant also requested dismissal of counts
three and four. Regarding count three, employing a firearm during the commission of a
dangerous felony, the Defendant cited to State v. Richardson, 875 S.W.2d 671 (Tenn.
Crim. App. 1993), and contended as follows:
Count [o]ne charges the [D]efendant with the crime of aggravated robbery.
The indictment alleges in count one that the robbery was accomplished
with the use of a deadly weapon. Your [D]efend[ant] would respectfully
submit tha[t] since the [D]efendant has been char[ged] in the first count
[with] aggravated robbery by the use of a deadly weapon, to allow the
[D]efendant to be charged in count three with an offense by use of a deadly
weapon constitutes [D]ouble Jeopardy in violation of the [D]efendant[’]s
constitutional rights.
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In addition, the Defendant sought dismissal of the convicted felon in possession of a
handgun offense, count four, maintaining simply that “to allow a jury to be advised that
the [D]efendant has a prior conviction by the use of deadly weapon would be so
prejudicial[] that the [D]efendant’s due process rights would be violated.”
He later filed a second motion seeking dismissal of count four on double jeopardy
grounds because “the exact and identical proof would be introduced” to support both
counts one (aggravated robbery) and four (unlawful possession of a handgun by a
convicted felon):
Your [D]efendant respectfully submits that count one of the indictment
alleges that the [D]efendant put the alleged victim in fear by using a deadly
weapon. Count four alleges that the [D]efendant was a convicted felon at
the time of the use of the deadly weapon which was alluded to in count one
of the indictment.
At the motion to suppress hearing, defense counsel seemingly made reference to
these “other issues” and indicated that he would be submitting those issues on “legal
argument” alone. But, it does not appear that the issues were brought to the trial court’s
attention again until after voir dire had been conducted and the venire was waiting for
trial to begin.
Initially, the trial court stated that the Defendant’s “motion to bifurcate the charge
of being a convicted felon in possession of a firearm,” count four, was granted.
Accordingly, the State was “prohibit[ed] . . . from mentioning that [the Defendant] was a
convicted felon during the case-in-chief.”
Then, defense counsel referenced the original omnibus motion and the argument
set forth therein that double jeopardy principles required dismissal of count three because
both counts one (aggravated robbery accomplished with a deadly weapon) and three
(employing a firearm during the commission of a dangerous felony) involved the use of a
deadly weapon. He then cited his second motion wherein he argued for dismissal of
count four on double jeopardy grounds because counts one (aggravated robbery
accomplished with a deadly weapon) and four (being a convicted felon in possession of a
handgun) were based on “exact and identical proof.”
Next, defense counsel restated the due process argument in the original omnibus
motion regarding count four—that admission of the Defendant’s prior conviction
involving a deadly weapon would be “so prejudicial due process rights would be
violated.” Defense counsel averred, “So that’s really the issues except you could call it
severance, a bifurcation, whatever kind of analogy you want.” Additionally, defense
counsel cited as authority State v. Martin Boyce, No. W2012-00887-CCA-R3-CD, 2013
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WL 4027244 (Tenn. Crim. App. Aug. 6, 2013), in support of the argument. According to
defense counsel, this court concluded in Boyce “that joinder to the possession of a
handgun with the other offense was mandatory” and that “the relevant inquiry was
whether severance of the possession of a handgun by a convicted felon charge[] was
necessary . . . to provide a fair determination of [the Defendant’s] guilt or innocence of
each offense.” Defense counsel acknowledged that the Boyce court ultimately held that
severance was not necessary under that standard and that, even if the denial of a
severance of the handgun possession offense was in error in that case, such error was
harmless. However, extrapolating from Boyce, defense counsel contended that
“mandatory joinder in this particular case . . . would so prejudice the jury that [the
Defendant] couldn’t get a fair and impartial trial” and that the Defendant would be
harmed by admission of the prior conviction.
The prosecutor responded by first noting his frustration with defense counsel’s
failure “to reduce what he was praying from the [c]ourt to writing, what he saw the
remedy would be and ultimately the law that allows him to have such remedy.”
Regardless, the prosecutor noted the Boyce court’s conclusion that joinder was
appropriate under the facts of that case. Next, the prosecutor returned to the bifurcation
arugment, stating that “there [was] no law suggesting that there [was] a need to bifurcate”
and “whereby severance or joinder[,] it would be an appropriate thing to completely
wholesale cut out the evidence that he was a prior felon.” The prosecutor, “in just an
abundance of fairness[,]” agreed to stipulate that the Defendant, “at the time of the
offense[,] had a felony prior conviction.” The prosecutor then noted his displeasure with
defense counsel’s “chang[ing] the argument” on the day of trial.
The prosecutor recounted the facts of the home invasion for the trial court.
According to the prosecutor, “the use of the firearm [was] inextricably . . . involved with
all the facts of the case[,]” and severance was, therefore, not appropriate. The prosecutor
further maintained, “[T]he fact that [the Defendant] is a convicted prior felon in their
home during a robbery using a firearm is the basis for that charge. It’s elemental[.]”
The trial court then ruled that mandatory joinder was appropriate based upon the
facts as they had been relayed to the court. Regarding bifurcation, the trial court noted
that the State had submitted the case of State v. Timothy Damon Carter, No. M2014-
01532-CCA-R3-CD, 2016 WL 7799281 (Tenn. Crim. App. Mar. 8, 2016), wherein this
court stated that it was “not aware of any law that requires bifurcation of the charge of a
convicted felon in possession of a firearm” and that “in fact it [was] an element of the
crime.” Relying on this language from Carter, the trial court determined that “it [was]
appropriate to proceed as the case [was] indicted” and that it would not bifurcate the
convicted felon charge.
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Defense counsel then returned to his argument concerning dismissal of count
three, relying upon double jeopardy principles espoused in Richardson, 875 S.W.2d 671,
because both counts one (aggravated robbery accomplished with a deadly weapon) and
three (employing a firearm during the commission of a dangerous felony) involved the
use of a deadly weapon. Defense counsel did not elaborate further. Again, the
prosecutor noted his frustration with defense counsel’s failure to explain “how double
jeopardy even applie[d] in this matter” and his “trouble deciphering” defense counsel’s
argument. The trial court interjected with its ruling. First, the trial court stated that
defense counsel’s double jeopardy argument, “mean[ing] trying a man for the same crime
twice[,]” was without merit because “these [were] different elements that [were] outlined
in the indictment by law[.]” Trial resumed the next day.
C. Trial. Although the Defendant does not contest the sufficiency of the evidence
on appeal, we will briefly summarize the State’s proof presented at trial. Around 10:45
p.m. on November 29, 2012, the victim was at home with her friend Monique Jones,
when the Defendant knocked on the door looking for the victim’s boyfriend, Mr.
Peterson. However, Mr. Peterson was not home because he had gone to visit a friend.
The victim told the Defendant that Mr. Peterson was not home, and the Defendant “left
out the door” and disappeared. At the time of her conversation with the Defendant, the
victim, unbeknownst to the Defendant, was also on the phone with Mr. Peterson. She
informed Mr. Peterson that the Defendant was at their house waiting on him.
The victim returned to the kitchen and continued talking with Ms. Jones.
However, Ms. Jones’s “gaze went completely blank,” according to the victim, and Ms.
Jones would not respond to questioning. When the victim turned around, “a guy [was]
standing there with a shotgun over the refrigerator and said you know what this is.” At
first the victim thought it was just a game, but the man “came from around the
refrigerator and cocked the gun in [her] face and said, B---h, this is not a game. Get on
the floor.” She got on the kitchen floor as ordered and began pleading with the man not
to hurt her and telling him that she had kids. Thereafter, the Defendant entered the
kitchen and started hitting the victim with a silver handgun, asking, “[W]here the money
at, B---h?” She told the Defendant that she did not have any money, but the Defendant
kept insisting that she did. The victim testified that Ms. Jones had vanished from the
kitchen.
When Mr. Peterson returned to the residence, he noticed an individual acting as a
lookout in front of his house. The lookout yelled inside to the other individuals that Mr.
Peterson was coming towards the house and then that individual fled. According to the
victim, the remaining men were “rolling” the tire rims out of the house, when they
encountered Mr. Peterson. Mr. Peterson said that he came face-to-face with the
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Defendant once inside the home, that the four men dropped the rims and ran, and that
they got inside a black Nissan Altima parked in the driveway and drove away.
According to Mr. Peterson, the victim told him that she had been hit with a gun,
and he saw a “bruise on [the victim’s] side.” After the men drove away, the victim called
the police. Moreover, the victim estimated that the whole incident lasted about five or six
minutes. According to the victim, the men ransacked her home, taking $500 in cash and
attempting to steal four tire “rims that [went] on [her] car[.]”
While the victim and Mr. Peterson were speaking with the police about the
incident, the Defendant telephoned the victim and said, “[Y]ou better keep you a gun
because we’ll be back to pay you a visit. . . . You let your guard down.” The police were
able to listen to the conversation over the telephone’s speaker. According to the victim,
the Defendant had also sent her text messages, which she showed police. MPD Officer
Cedric Chalmers testified that the Defendant sent text messages to the victim using phone
number 5490 and that he called her using phone number 2448.5
In addition to speaking with Mr. Peterson and the victim, the police interviewed
Ms. Jones after the robbery. The police also searched Mr. Peterson’s and the victim’s
residence and did not find any contraband or firearms. According to Officer Chalmers,
the residence was “a little disheveled[,]” and the scene “was consistent with what the
victims” had told him.
The victim testified that she recognized the Defendant because he had come by the
house earlier in the day on November 29, 2012, to sell pain pills to Mr. Peterson.
Moreover, the victim witnessed the Defendant’s selling Mr. Peterson “some pain pills” “a
couple of days” prior to the home evasion. Mr. Peterson testified that he had dealt with
the Defendant “[a] couple of times” and that he needed the pills because he had “a hole in
[his] tooth.”
Also, both the victim and Mr. Peterson recognized the black Nissan Altima in the
driveway and stated that it belonged to the Defendant. Furthermore, according to Mr.
Peterson, the Defendant drove a white Chevy Impala to the house during the Defendant’s
earlier visit on November 29, 2012.
Sergeant6 Petrowski testified that the Defendant was developed as a suspect in this
case because one of the phone numbers obtained from the victim’s phone was “associated
5
For purposes of anonymity and clarity, we will refer to telephone numbers using the last four digits
only.
6
Sergeant Petrowski had achieved the rank of detective by the time of the Defendant’s trial.
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with” the Defendant’s girlfriend, because a black Nissan Altima was registered to the
Defendant’s girlfriend, because a white Chevy Impala was registered to the Defendant,
and because both Mr. Peterson and the victim had selected the Defendant in a
photographic lineup. Sergeant Petrowski affirmed that he tried to follow-up with Ms.
Jones during his investigation but was unable to locate her.
Sergeant Brown testified that he interviewed the Defendant on December 18,
2012, following the Defendant’s arrest, and that Sergeant Minga assisted with the
interview. According to Sergeant Brown, the Defendant was advised of his Miranda
rights; the Defendant read each right aloud; the Defendant placed his initials by each
right; and the Defendant signed the document. Thereafter, Sergeant Brown took a formal
statement from the Defendant, starting the conversation casually before talking about the
case. Sergeant Brown ultimately typed the Defendant’s statement, which the Defendant
signed. Moreover, Sergeant Brown testified that the Defendant was again advised of his
rights and initialed that he understood those rights before affixing his signature to the
written statement. According to Sergeant Brown, the interview was not lengthy in nature,
beginning around 5:01 p.m. and concluding at approximately 6:01 p.m.
Sergeant Brown also relayed that it was standard procedure to offer an interviewee
food and water and provide restroom facilities. Sergeant Brown further said that his
procedure of taking written statements, rather than recording, was the policy of the MPD.
The Defendant did initial some of his responses in the written statement, but he
failed to initial others. Sergeant Brown agreed that the Defendant “decided to stop
cooperating” at some point. Sergeant Brown explained that an oral statement was given
first and then that statement was reduced to writing and that the Defendant was given the
opportunity to make any changes to the statement before his signed it. So, the entire
interview had been conducted and reduced to writing when the Defendant decided to stop
initialing his answers, according to Sergeant Brown.
Both the Waiver of Rights form and the Defendant’s statement were entered into
evidence. The Defendant’s statement reads, in pertinent part, as follows:
Q: Did you participate in the aggravated robbery/aggravated burglary of
Darrell Peterson/ Candid Sanders/ MoNique Jones, which occurred at 3412
Eastport, on 11/29/12 at approximately 10:40pm?
A: No.
Q: Did anyone else participate, if so, name them?
A: Yes, I don’t know their names.
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Q: Were you armed with a weapon, if so, describe it?
A: No.
Q: Was anyone else armed, if so, describe the weapon?
A: It [was a] 12[-]Gauge shotgun I think.
Q: What was taken in this robbery?
A: I have no idea.
Q: What did you receive from this robbery?
A: Nothing.
Q: Was a vehicle used during this robbery, if so, describe the vehicle?
A: Black Nissan Altima.
Q: Who does this vehicle belong to?
A: My girlfriend.
Q: How long did you all plan this robbery?
A: About an hour.
Q: What were you all hoping to gain from the robbery?
A: Money.
Q: Are you willing to show us where the other suspects live?
A: I will they around [sic] the corner from my girl, but what am I going to
gain from it.
Q: Describe, in detail, the events prior to, during and after this robbery?
A: I don’t have nothing [sic] else to say.
....
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Q: I will ask you to read this statement, consisting of [three] pages, and if
you find it to be exactly as you have given, I will ask you to initial the
bottom of each page and place your signature along with the date and time
on the line below: Do you understand?
The Defendant answered this last question by signing the document. In addition to
initialing his responses on page one, the Defendant’s initials appear at the bottom of page
two, and his signature appears on page three.
That concluded the testimony and proof from the State’s witnesses. Thereafter,
the following stipulation was provided to the jury:
That as of the date of the charged conduct on November 29, 2012,
[the Defendant] was a convicted felon as described in T[ennessee] C[ode]
A[nnotated] [section] 39-17-1307. Accordingly, the State of Tennessee and
[the Defendant] agree that it will not be necessary for the State to present
such evidence to the jury.
The Defendant timely appealed the jury’s guilty verdict. The case is now before
us for our review.
ANALYSIS
On appeal, the Defendant asserts that the trial court erred by denying his motion to
suppress his statement given to Sergeants Brown and Minga, his motion to dismiss the
charge of employing a firearm during the commission of a dangerous felony because the
indictment failed to specify the predicate dangerous felony, and his motion to sever the
unlawful possession of a handgun by a convicted felon count from the other three counts.
We will address each issue presented.
I. Motion to Suppress
On appeal, the Defendant cites to Huddleston and McLaughlin and maintains that
his “confession should have been suppressed because it was the result of an involuntary
interrogation in which officers unreasonably delayed [his] booking . . . in order to gather
evidence against him.” He then asserts that a delay of less than forty-eight hours is
unreasonable when it is for the purpose of gathering additional evidence to justify the
arrest, citing to Bishop and McLaughlin. According to the Defendant, because “[t]he
officers already had a determination of probable cause against [him] through the arrest
warrant, . . . there was no reason not to immediately proceed to booking and processing
other than to create a delay which would induce [him] to give an involuntary statement.”
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Furthermore, the Defendant submits that the “trial court erred when it failed to
exclude [his] statement, which was both involuntary and contained numerous statements
which he had not adopted.”7 He cites to the totality of the circumstances factors outlined
in Huddleston to determine when a confession is voluntary. In this regard, the Defendant
maintains that his confession should have been suppressed because it was not voluntarily
given to Sergeant Brown, noting that he “did not answer several of the questions at the
end of the statement, including the crucial question of whether his statement was free and
uncoerced[,]” and that he “did not adopt[] several of the answers as his own statements
by initialing them.”
The Defendant persists, “[e]ven if, arguendo, [he] had been free to leave at the
time that this statement was collected, it would still fail to be a voluntary statement
because it consisted primarily of statements by Sergeant Brown forced upon [him], many
of which [he] refused to adopt.” Finally, any error in this regard was not harmless,
according to the Defendant, because the “involuntary confession was a crucial element of
the [S]tate’s case.” Moreover, the Defendant complains that Sergeant Brown read the
statement into evidence as if it were the Defendant’s statement.
A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Questions about the “credibility of the witnesses, the weight and value of
the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Both proof
presented at the suppression hearing and proof presented at trial may be considered by an
appellate court in deciding the propriety of the trial court’s ruling on a motion to
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998); State v. Perry, 13
S.W.3d 724, 737 (Tenn. Crim. App. 1999). However, the prevailing party “is entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from the evidence.” Odom,
928 S.W.2d at 23. Furthermore, an appellate court’s review of the trial court’s
application of law to the facts is conducted under a de novo standard of review. State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citations omitted).
The Defendant appears to contend that any detention prior to booking and
processing for the sole purpose of gathering additional incriminating information violates
his Fourth Amendment rights as set forth in McLaughlin, 500 U.S. 44, and Huddleston,
924 S.W.2d 666. Accordingly, the Defendant contends that his detention was unlawful,
and the trial court erroneously denied the suppression of his statement. After a thorough
review of the record, we respectfully disagree.
7
In the Defendant’s brief, the voluntariness aspect of his confession is completely comingled with the
alleged Fourth Amendment violation.
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When a person is arrested without a warrant, the law requires the arresting
authorities to take him or her before a magistrate to seek “a prompt judicial determination
of probable cause.” Gerstein v. Pugh, 420 U.S. 103, 125 (1975); Huddleston, 924
S.W.2d at 672; see also Tenn. R. Crim. P. 5(a)(1)(A) (“Any person arrested—except
upon a capias pursuant to an indictment or presentment—shall be taken without
unnecessary delay before the nearest appropriate magistrate of . . . the county from which
the arrest warrant issued[.]”).8 A judicial determination of probable cause is generally
considered “prompt” if it is made within forty-eight hours. McLaughlin, 500 U.S. at 56;
see also Bishop, 431 S.W.3d at 36. A delay shorter than forty-eight hours may still be
unreasonable and unconstitutional if it is “for the purpose of gathering additional
evidence to justify the arrest” or if it is “motivated by ill will against the arrested
individual . . . .” McLaughlin, 500 U.S. at 56; see also Bishop, 41 S.W.3d at 36.
Specifically, the Defendant relies on the Tennessee Supreme Court’s decision in
Huddleston to support his position that his detention prior to booking and processing was
unlawful because it was solely for the purpose of gathering additional information against
him. The situation faced by the court in Huddleston, however, is clearly distinguishable
from the case at hand. The defendant in Huddleston was arrested without a warrant on a
Friday afternoon and held without a judicial determination of probable cause before
issuing a confession, preceded by Miranda warnings and a signed Waiver of Rights form,
on the following Monday afternoon. 924 S.W.2d at 668. The next day, relying solely on
the defendant’s confession, a police detective obtained a probable cause warrant from a
magistrate. Id. Our supreme court concluded that “the exclusionary rule should apply
when a police officer fails to bring an arrestee before a magistrate within the [forty-eight
hours] allowed by McLaughlin.” Id. at 673. Any evidence obtained from an unlawful
detention must be suppressed under the fruit of the poisonous tree doctrine. Id. at 674-75.
Because the defendant was held more than seventy-two hours without a judicial
determination of probable cause and the State failed to justify the delay, the Huddleston
court found that the defendant’s Fourth Amendment rights were violated. Id. at 675.
When a suspect is arrested on probable cause, however, the ensuing detention is
typically not illegal until it “ripens” into a Gerstein violation. Huddleston, 924 S.W.2d at
675. Thus, “if the [arrestee’s] statement was given prior to the time the detention ripened
into a constitutional violation, it is not the product of the illegality and should not be
suppressed.” Id. Moreover, “the issuance of a valid arrest warrant satisfies the
requirement that there must be a judicial determination of probable cause for extended
detention.” State v. Carter, 16 S.W.3d 762, 766 (Tenn. 2000) (citing Baker v. McCollan,
443 U.S. 137, 143 (1979)). As the United States Supreme Court reasoned in Baker,
8
The Defendant does not include a separate Rule 5 violation argument in his appellate brief, although
Rule 5 was addressed by the trial court.
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Since an adversary hearing is not required, and since the probable-cause
standard for pretrial detention is the same as that for arrest, a person
arrested pursuant to a warrant issued by a magistrate on a showing of
probable cause is not constitutionally entitled to a separate judicial
determination that there is probable cause to detain him pending trial.
443 U.S. at 143; see also Carter, 16 S.W.3d at 766.
Sergeant Petrowski testified at the suppression hearing that he went before a
commissioner on December 17, 2012, and secured an arrest warrant for the Defendant,
who had previously been identified as a perpetrator by the victims of the home invasion.
At 9:09 a.m. the following day, the Defendant was arrested by the Shelby County
Fugitive Bureau. The Defendant did not challenge the probable cause determination.
Moreover, according to Sergeant Petrowski at trial, the Defendant had also been
developed as a suspect because one of the phone numbers obtained from the victim’s
phone was “associated with” the Defendant’s girlfriend, because a black Nissan Altima
was registered to the Defendant’s girlfriend, because a white Chevy Impala was
registered to the Defendant, and because both Mr. Peterson and the victim had selected
the Defendant in a photographic lineup.
Also, Sergeant Petrowski reviewed the arrest warrant and noted that it appeared
from the warrant that the Defendant was “physically” at the jail about an hour after his
arrest, around 10:00 a.m. Importantly, the Defendant testified at the suppression hearing
that he was booked and processed into the jail upon his arrival, and the trial court
accredited this testimony in its findings. The Defendant testified that the intake process
lasted “[j]ust a few minutes[,]” and he was then placed in a jail cell for “a couple of
hours” before being questioned in the Robbery Squad Office by Sergeants Brown and
Minga. Morevoer, the interview began at approximately 5:01 p.m., which was only eight
hours following the Defendant’s arrest.
At the motion hearing, defense counsel9 relied upon the Defendant’s testimony in
this regard, stating,
But the proof in the record is by the arrest report he was arrested at 10
o’clock in the morning and booked and processed. . . . I think from then on
you have to—that any hold on him, you know, for the purpose of securing a
statement, i.e. hold for an interview is certainly during the—during an
illegal detention and is exactly the issue that Huddleston addresses[.]
9
While it appears that the Defendant’s lawyers, Mr. Stein and Mr. Golder, are part of the same firm, it
seems that Mr. Stein was the Defendant’s trial attorney and that Mr. Golder prepared the Defendant’s
appellate brief unassisted by Mr. Stein.
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(Emphasis added). The Defendant’s timing argument has now changed on appeal:
“[His] confession should have been suppressed because it was the result of an involuntary
interrogation in which officers unreasonably delayed [his] booking . . . in order to gather
evidence against him.” (Emphasis added). The Defendant cannot have it both ways,
either he was booked and processed upon his arrival or he was not. It is well-settled law
that a defendant cannot raise an issue for the first time on appeal nor can he change his
arguments on appeal. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983);
State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. 1988); State v. Alder, 71 S.W.3d 299, 303
(Tenn. Crim. App. 2001). Waiver of this issue is appropriate under these circumstances.
Moreover, the Defendant has not provided this court with any authority for a requirement
that booking and processing must occur before any questioning.
Regardless, following the Defendant’s arrest pursuant to a warrant issued upon
probable cause, the police were justified in questioning the Defendant about his
involvement in the home invasion. The interview took place a mere eight hours after the
Defendant was arrested. Sergeant Brown testified that it was standard procedure to offer
an interviewee food and water during an interview and provide restroom facilities. The
Defendant could have terminated the questioning at any time. The Defendant
acknowledged that he understood and waived his right against self-incrimination. The
Defendant’s interview was not exceptionally lengthy, lasting only an hour. Nothing
about the Defendant’s arrest and detention gave the appearance of being an “expedition
for evidence in the hope that something might turn up” or as “having been calculated to
cause surprise, fright, and confusion.” See Brown v. Illinois, 422 U.S. 590 (1975).
We note that officers frequently interview defendants to further solidify the State’s
case. The facts of the case at hand simply do not preponderate against the trial court’s
finding that the Defendant was not illegally detained. See, e.g., State v. Jeffrey D. Allen,
No. W2008-01348-CCA-R3-CD, 2009 WL 2502000, at *8 (Tenn. Crim. App. Aug. 17,
2009) (holding that no Fourth Amendment violation occurred when the defendant was
lawfully arrested and detained pursuant to a probation violation warrant), distinguished
on other grounds by State v. Rayfield, 507 S.W.3d 682, 704-05 (Tenn. Crim. App. 2015).
Thus, the trial court did not err in denying suppression of the Defendant’s statement.
Also, the Defendant ostensibly raises as a separate issue that his statement was not
voluntarily made because “it consisted primarily of statements by Sergeant Brown forced
upon [him], many of which [he] refused to adopt.” Because this issue was not broached
at the suppression hearing or at trial and is being presented for the first time on appeal, it
is waived. Moreover, the Defendant’s complaint that Sergeant Brown was allowed to
read the Defendant’s statement into evidence, in addition to being inadequately briefed
by failing to cite to the case law or the record, was not included as an issue his motion for
new trial and is likewise waived. See Tenn. R. App. P. 3(e) & 27(a)(7); Tenn. Ct. Crim.
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App. R. 10(b). Although this court may, in certain circumstances, address as plain error
an issue that would otherwise be waived, we conclude that the application of the plain
error doctrine is not appropriate in the instant case. See Tenn. R. App. P. 36(b); State v.
Adkisson, 899 S.W.2d 626, 638-39 (Tenn. Crim. App. 1994). We conclude that these
issues are procedurally defaulted.
II. Employment of a Firearm during the Commission of a Dangerous Felony
(Count Three)
On appeal, the Defendant phrases his argument as whether his conviction for
employing a firearm during the commission of a dangerous felony is invalid “because the
indictment failed to specify the predicate felony.” However, he notes that numerous
panels of this court “have been reluctant to grant relief when the defendant merely alleges
that the indictment failed to provide adequate notice of the charges against the accused.”
Instead, according to the Defendant, “panels of this [c]ourt have [been] seriously
concerned with violations of the right against double jeopardy and the right to due
process in cases where a defendant was convicted of a firearm offense where one of the
potential predicate offenses involved use of firearm.”
His constitutional argument is two-fold. First, citing to State v. Michael L. Powell
and Randall S. Horne, No. E2011-00155-CCA-R3-CD, 2012 WL 1655279 (Tenn. Crim.
App. May 10, 2012), he asserts that a defendant’s double jeopardy rights are “violated
when there is no element of the firearm charge not included in the predicate felony.” We
interpret the Defendant’s argument to suggest that the “predicate dangerous felony”
cannot include as an element of that offense the possession or employment of a firearm.
See Powell, 2012 WL 1655279, at *14 (holding that the only predicate dangerous felony
upon which the firearms charges could have been based was the aggravated burglary
offense because that charge did not include the possession or employment of a firearm as
an element). Second, citing to Boyce, 2013 WL 4027244, and several other cases, the
Defendant submits that “there cannot be a conviction of Tenn[essee] Code Ann[otated]
[section] 39-17-1324 where there is a possibility that the jury selected a predicate felony
which was not enumerated by the state, thus resulting in a conviction for a ‘non-existent
crime.’” This second set of cases relies on due process principles. See also Powell, 2012
WL 1655279, at *15 (“[D]ue process does not countenance the conviction of a
nonexistent crime.”) (citing Adams v. Murphy, 653 F.2d 224, 225 (5th Cir. 1981)).
After setting forth his constitutional argument and seemingly acknowledging that
his notice argument lacks merit, the Defendant then makes the following statement:
“Under either of these theories, failure to specify the predicate felony is reversible error
when only one of the convicted offenses would be a valid predicate felony.” However, in
support of this proposition, he cites to cases where the State was not required to elect the
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predicate felony. Next, the Defendant notes that “[t]he indictment failed to specify
whether he was accused of employing a firearm during the commission of an aggravated
robbery or an aggravated burglary” but acknowledges that only the aggravated burglary
could have served as the predicate felony. See Tenn. Code Ann. § 39-17-1324(i)(1)
(enumerating aggravated burglary as a dangerous felony but not aggravated robbery).
The Defendant seems to then present an alternative argument, stating that, even if he was
given proper notice by the indictment, (1) the jury may have chosen to convict him of a
non-existent crime, i.e., employing a firearm in the commission of an aggravated robbery;
(2) “there may not have been a unanimous verdict as to whether the aggravated robbery
or aggravated burglary served as the predicate felony”; and (3) “the findings of fact
necessary to convict [the Defendant] of employing a firearm during the robbery are not
identical to the findings of fact necessary to convict [the Defendant] of employing a
firearm during the burglary.” The Defendant concludes this portion of his argument, by
maintaining,
A jury without the proper instruction from the indictment would have been
more likely to convict [the Defendant] of employing a firearm during the
robbery than during the burglary because the role of the gun was far more
pronounced when it was used to hit [the victim] during the robbery than it
was when [the Defendant] carried the gun while entering the house.
At the outset, we note that much of the confusion is exacerbated by the fact that
the Defendant once again changes theories on appeal. At trial, defense counsel only
argued for dismissal because both counts one (aggravated robbery accomplished with a
deadly weapon) and three (employing a firearm during the commission of a dangerous
felony) involved the use of a deadly weapon and, therefore, violated double jeopardy
principles espoused Richardson, 875 S.W.2d 671. Defense counsel did not elaborate
further. Moreover, the Richardson court held that double jeopardy principles precluded
separate convictions for possessing a handgun because the defendant’s possession in that
case constituted “one uninterrupted course of conduct.” 875 S.W.2d at 677 (citation
omitted). Richardson did not discuss any of the legal tenants set forth by the Defendant
on appeal. Furthermore, the Defendant never made a due process argument pertaining to
count three. Accordingly, once again the Defendant has waived plenary review of his
issues.
However, despite not being raised as an issue by either of the parties, we find plain
error in the jury charge. Both parties base their respective arguments on the mistaken
premise that no predicate felony was included in the jury instructions; however, our close
review of the jury instructions reveals that the trial court specifically instructed the jury
that the predicate dangerous felony for the employment offense was aggravated robbery.
As noted above, aggravated robbery is not an enumerated dangerous felony pursuant to
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Tennessee Code Annotated section 39-17-1324(i)(1). A number of cases from this court
have found plain error in situations where either the jury was not provided a definition of
“dangerous felony” at all—leading to the possibility that they considered a felony that is
not defined as dangerous under the firearm statute—or the instructions narrowed the
potential predicate felonies but erroneously included a felony that was disqualified
because it contained the use of a firearm as an essential element. See, e.g., State v. Curtis
Keller, No. W2012-00825-CCA-R3-CD, 2013 WL 3329032, at *5 (Tenn. Crim. App.
June 27, 2013); Boyce, 2013 WL 4027244, at *13; State v. Trutonio Yancey and Bernard
McThune, No. W2011-01543-CCA-R3-CD, 2012 WL 4057369, at *8 (Tenn. Crim. App.
Sept. 17, 2012); Powell, 2012 WL 1655279, at *15. The remedy for such an error was to
reverse the firearm conviction and remand for a new trial on that offense. See also State
v. Duncan, 505 S.W.3d 480, 491 (Tenn. 2016). Because aggravated robbery was not
statutorily permissible as a predicate dangerous felony, the same rationale must hold true
in this case. Therefore, the conviction for employing a firearm during the commission of
an aggravated robbery is reversed, and that count is remanded for a new trial on the
offense of employing a firearm during the commission of an aggravated burglary.10
III. Unlawful Possession of a Handgun by a Convicted Felon (Count Four)
The Defendant contends that “the trial court erred when it failed to sever . . . count
four from the . . . remaining counts in the indictment.” He then cites to the law for
mandatory joinder of offenses but notes that a trial court “shall grant a severance of
offenses” when necessary “to promote a fair determination of the defendant’s guilt or
innocence of each offense.” Tenn. R. Crim. P. 8(a), 14(b). The Defendant claims that
“the trial court’s failure to bifurcate prevented [him] from receiving a fair determination
of his guilt or innocence.”11
As pertinent to our review, Tennessee Code Annotated section 39-17-
1307(b)(1)(A) provides that a person commits an offense “who unlawfully possesses a
firearm” and “[h]as been convicted of a felony involving the use or attempted use of
force, violence, or a deadly weapon.” There was no dispute that the Defendant had a
qualifying prior felony conviction for aggravated assault.
The Defendant makes no real argument that the counts of the indictment were
improperly joined, arguing, instead, that the trial court erred in denying his motion to
bifurcate the convicted felon in possession of a handgun offense.12 The Defendant claims
10
We note our agreement with the State that the indictment in this case adequately apprised the
Defendant of the nature and cause of the accusation against him. See Duncan, 505 S.W.3d at 483-491.
11
The Defendant has abandoned any double jeopardy argument pertaining to this count on appeal.
12
We feel constrained to note that the terms “bifurcation” and “severance” are not interchangeable.
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that “the trial court’s failure to bifurcate prevented [him] from receiving a fair
determination of his guilt or innocence.” According to the Defendant, the law is
unsettled in this area and the recent trend has been to require bifurcation of the convicted
felon in possession of a handgun charge.
In the trial court, the Defendant relied upon Boyce as supporting his argument for
bifurcation, arguing that Boyce established that “the relevant inquiry was whether
severance of the possession of a handgun by a convicted felon charge[] was necessary . . .
to provide a fair determination of [the Defendant’s] guilt or innocence of each offense.”.
However, on appeal, the Defendant notes, “The State will likely argue that this [c]ourt
should follow []Boyce, in which the Western Division found that bifurcation was not
necessary.” The Defendant then cites State v. Carlos Smith, No. W2012-01931-CCA-
R3-CD, 2013 WL 12182606, at *4 (Tenn. Crim. App. Aug. 29, 2013), for the proposition
that a defendant has “the option of requesting bifurcated proceedings” and that
bifurcation “has been used in the trial courts of this state and has not been criticized by
our appellate courts.” No. W2012-01931-CCA-R3-CD, 2013 WL 12182606, at *4
(Tenn. Crim. App. Aug. 29, 2013). Next, the Defendant refers to State v. Foust, 482
S.W.3d 20, 46-47 (Tenn. Crim. App. 2015) (citations omitted), wherein this court stated
as follows:
[W]e note that the better procedure where, as here, the defendant is charged
with offenses involving the use of violence and force and also charged with
the status offense of unlawful possession of a firearm for having a similar
prior felony conviction would be to bifurcate the proceedings . . . .
Finally, the Defendant attempts to distinguish Carter, 2016 WL 7799281, the case relied
upon by the trial court in its decision not to bifurcate the proceedings, explaining that
Carter failed to mention the “numerous cases in which bifurcation has been approved or
recommended[.]”
Bifurcation concerns splitting a charge into two separate determinations involving guilt and punishment
by the same jury, whereas severance deals with separating a charge from other charges in the indictment
and trying them individually. See, e.g., Carlos Smith v. State, No. W2016-01087-CCA-R3-PC, 2017 WL
2730398, at *7 (Tenn. Crim. App. June 26, 2017) (“[I]t is likely that trial counsel was intending to seek
bifurcation of the felon in possession charge prior to trial but he erroneously moved for severance of the
charges.”); State v. Zacheriah Holden, No. M2010-00811-CCA-R3-CD, 2013 WL 871326, at *20 (Tenn.
Crim. App. Mar. 8, 2013) (“Therefore, there is no basis upon which to grant a severance of DUI, fourth
offense from the charges of aggravated vehicular homicide. To the contrary, the initial proof needed for
the DUI, fourth offense charge is also required for the initial proceedings under the statutory required
bifurcated proceeding to prove vehicular homicide.”); see also BLACK’S LAW DICTIONARY 163, 1374 (6th
1990).
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The State responds to the Defendant’s claim by first remarking that “case law has .
. . consistently held that bifurcation in this situation is not required.” Next, the State
notes that the Defendant “was permitted to enter the general stipulation that he was a
convicted felon” and, therefore, “[h]is right to a fair trial was not violated[.]” We agree
with the State.
While Foust recommended bifurcation, none of the opinions of this court have
required bifurcation. Ultimately, in Foust, this court affirmed a stipulation between the
defendant and the State that the defendant had “a previous felony conviction involving
force” and “a previous felony conviction involving violence.” 482 S.W.3d at 46.
Moreover, our supreme court has held that, with respect to status offenses, like the
unlawful possession of a handgun offense at issue here, “specific reference[s] to [a]
defendant’s prior felonies” are “relevant to establish an essential element of the crime for
which the defendant is being tried.” State v. James, 81 S.W.3d 751, 760-61 (Tenn.
2002)); see also Foust, 482 S.W.3d at 47. Here, after the trial court denied the
Defendant’s bifurcation request, the Defendant agreed to stipulate that he “was a
convicted felon as described in Tenn[essee] C[ode] A[nnotated] [section] 39-17-1307.”
The Defendant’s conviction for being a convicted felon in possession of a handgun is
affirmed. Despite our conclusion, we feel constrained to note our agreement that
bifurcation is indeed the better procedure.
CONCLUSION
We hold that the trial court committed plain error by instructing the jury that
aggravated robbery could serve as the predicate dangerous felony. Therefore, we must
reverse the Defendant’s employing a firearm during the commission of a dangerous
felony conviction and remand that charge for a new trial. The Defendant’s convictions
for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a
convicted felon are affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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