State of Tennessee v. Timothy Damon Carter ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 9, 2015 Session
STATE OF TENNESSEE v. TIMOTHY DAMON CARTER
Direct Appeal from the Criminal Court for Davidson County
No. 2012-B-1221 Cheryl Blackburn, Judge
No. M2014-01532-CCA-R3-CD – Filed March 8, 2016
A Davidson County jury convicted the Defendant, Timothy Damon Carter, of theft of
property valued over $60,000 and of being a felon in possession of a handgun. The trial
court sentenced the Defendant as a career offender to a total effective sentence of thirty years
in confinement. On appeal, the Defendant contends that: (1) the trial court erred when it
determined that he had forfeited his right to counsel; (2) the trial court erred when it denied
his motion to suppress evidence seized from his vehicle; (3) the trial court erred when it
determined that the State had not committed a Brady violation; (4) the evidence is
insufficient to sustain his conviction for theft of property valued over $60,000; (5) the trial
court erred when it admitted into evidence a business record and an out-of-court statement
pursuant to hearsay exceptions; (6) the trial court erred when it declined to bifurcate the felon
in possession of a weapon charge; and (7) the trial court erred when it limited the
Defendant‟s ability to call witnesses to testify. After a thorough review of the record and
applicable authorities, we affirm the trial court‟s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.
Manuel B. Russ, Nashville, Tennessee, for the appellant, Timothy Damon Carter.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Glenn S. Funk, District Attorney General; Bret Gunn, Assistant District Attorney General, for
the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the theft of a comic book collection from a residence in La
Vergne, Tennessee in April 2010. The Defendant was identified as a suspect in the theft
when he sold or attempted to sell some of the comic books at area stores. During the
investigation, law enforcement officers went to the Defendant‟s apartment and, upon seeing
the stolen comic books in the backseat of a vehicle registered to the Defendant, impounded
his vehicle to the police department. After obtaining a search warrant, law enforcement
officers searched the Defendant‟s vehicle and recovered a handgun. The Defendant was later
arrested, and a Davidson County grand jury indicted him in November 2010 for theft of
stolen property valued less than $60,000 and for being a felon in possession of a weapon. In
April 2012, the State filed a superseding indictment for theft of property valued at more than
$60,000 and for being a felon in possession of a weapon.
A. Pre-Trial Motions and Issues
1. Representation
At his arraignment on January 15, 2011, the Defendant was declared indigent by the
trial court and Jessamine Grice with the District Public Defender‟s Office was appointed as
counsel. Ms. Grice was later removed from the case, and the trial court appointed Graham
Prichard as counsel. Mr. Prichard made an oral motion to withdraw, and the trial court
granted his motion and appointed Paul Walwyn as counsel. The record contains little
documentation regarding the bases for the removal of Ms. Grice and Mr. Prichard. In
subsequent orders, however, the trial court noted that the Defendant had “difficulties” with
both of these attorneys. On August 19, 2011, Mr. Walwyn filed a motion to be relieved as
counsel. The trial court denied Mr. Walwyn‟s motion after a hearing. On November 18,
2011, Mr. Walwyn filed a second motion to withdraw as counsel, which the trial court took
under advisement after a hearing. On January 5, 2012, the trial court issued an order denying
Mr. Walwyn‟s second motion to withdraw as counsel.
The Defendant subsequently filed several motions and requests pro se, including a
“Motion Requiring Counsel to Withdraw & Appointing Replacement Counsel,” in which he
requested that Mr. Walwyn be removed from his case. On May 2, 2012, Mr. Walwyn filed a
third motion to withdraw as counsel, and on May 16, 2012, the trial court held a hearing on
the motion, during which the following statements were made:
[MR. WALWYN]: I think basically, as far as communications, I‟m
not in a position where I can effectively represent
[the Defendant]. We‟ve had our differences in
the past. We tried to put some of them aside. I
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think [the Defendant] had asked me the first time
to withdraw a while back and we had a hearing.
And Your Honor instructed us to try to see if we
could work around our differences and instructed
[the Defendant] and myself with what we needed
to do and try to file things. But in the interim
things have deteriorated further. [The Defendant]
has been filing these other motions [pro se]. I‟ve
been trying to comply with some of his requests.
And I had been filing some of the things he‟s
been sending me even though they weren‟t things
I thought may or may not be appropriate. And I
think that has engendered a lack of trust. And
there has been a couple of incidents via phone
with my staff, and I would just simply ask Your
Honor to relieve me of [the Defendant‟s]
representation at this time without going into
further detail.
THE COURT: Well, this is obviously not the first difficulty
we‟ve had with [the Defendant]. I had to relieve
Mr. Prichard and then you were on the case. . . .
[THE DEFENDANT]: It‟s been to the point that all I was asking for is
communication with Mr. Walwyn. Mr. Walwyn
has been on my case for like thirteen months now,
and he hasn‟t took [sic] like ten or twenty minutes
to come see me to discuss my case. And I‟ve
written Mr. Walwyn like several certified letters
right here, and he hasn‟t responded back to any of
my letters. I know on January the 5th you asked
Mr. Walwyn to correspond with me through a
VIE or video conference call, and he did not do
so.
THE COURT: Okay. Now, where are you located, Mr. Carter?
[THE DEFENDANT]: I‟m at Riverbend.
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THE COURT: Riverbend. Okay. Well, the case is ready to – it
was ready for trial. We do now have this
superseding indictment. But obviously if it‟s
gotten to the point where – according to this
motion here you have been verbally abusive to
[Mr. Walwyn‟s] staff and calling his office. I
think the one thing you don‟t understand –
because we have gotten quite a bit of
correspondence from you, Mr. Carter – is that
you‟re represented by counsel.
[THE DEFENDANT]: Yes ma‟am.
THE COURT: And you can file motions until the sun comes
down, and you‟re not going to be heard, okay,
because you‟re represented by counsel. So you‟re
just [] wasting your paper.
[THE DEFENDANT]: Well, see, I didn‟t know that Your Honor. That‟s
the reason why it‟s a lack of communication
between me and [Mr. Walwyn]. If I knew that a
motion can‟t be filed pro se on my behalf, the
only thing Mr. Walwyn has got to do is
correspond with me and let me know, well, Mr.
Carter, you‟re not allowed to file these motions in
court. But there‟s been no communication, Your
Honor. All I ask is for a lawyer to communicate
with me in my proceedings, and he did not do so.
It‟s been thirteen months.
THE COURT: Okay. Well, I‟m going to relieve him. I have an
attorney in mind, Mr. Jack Byrd. He won‟t be
here today. He‟ll be here tomorrow. I‟m going to
appoint him to your case. You can either
cooperate or not, it really doesn‟t matter.
[THE DEFENDANT]: I cooperate, Your Honor. That‟s one thing I do is
cooperate with my attorney.
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At the conclusion of the hearing, the trial court granted Mr. Walwyn‟s motion and
appointed Jack Byrd as counsel. At a subsequent hearing on July 27, 2012, Mr. Byrd advised
the trial court that he needed to be relieved from the case, based on his conversations with the
Defendant. Mr. Byrd told the trial court that it was also the Defendant‟s wish that Mr. Byrd
be relieved from representation. Addressing the Defendant, the trial court admonished him to
cooperate with Mr. Byrd, his fourth attorney, and stated that Mr. Byrd would remain on the
case.
In a hearing on September 4, 2012, the issue of Mr. Byrd‟s representation of the
Defendant was addressed again. The trial court noted that, during the hearing, the Defendant
left the courtroom voluntarily. Mr. Byrd advised the trial court that the Defendant would not
cooperate with Mr. Byrd‟s preparation for trial. Mr. Byrd stated: “[The Defendant] and I
have different views. He believes he is a much better legal scholar than I.” Mr. Byrd stated
that the Defendant did participate in video conferences with Mr. Byrd. The trial court, noting
that the Defendant had turned his back to the trial court during his arraignment,
acknowledged that the Defendant did not “always want to participate in the process.”
On September 11, 2012, Mr. Byrd filed a motion to be relieved as counsel. After a
hearing on the motion, the trial court denied the motion and issued an order stating the
following:
The Court held a hearing on the motion on September 19, 2012, where
the Court acknowledged that [the] Defendant has been represented by four
different counsel during the pendency of his case - Jessamine Grice, Graham
Prichard, Paul Walwyn, and currently, Jack Byrd - and has had difficulties with
each of his counsel. [The] Defendant even spat at Mr. Byrd after the
suppression hearing held on September 4, 2012.
At the hearing on counsel‟s motion, the Court inquired if [the] Defendant
wished to proceed pro se with the assistance of elbow counsel. [The]
Defendant‟s education, however, is limited to 8th grade and as demonstrated by
his particularly completed Rule 44(a) Written Waiver & Order - Pro Se
Representation, [the Defendant] lacks the ability to represent himself at trial.
Mr. Byrd subsequently filed numerous motions in limine on the Defendant‟s behalf.
On October 16, 2012, Mr. Byrd filed a second motion to withdraw as counsel, listing the
following facts in support of his motion:
1. That the Defendant is demanding that [Mr. Byrd] withdraw from the
case.
2. The Defendant does not have faith in [Mr. Byrd‟s] representation.
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3. That statements and actions by the Defendant have had severe negative
effect on the attorney/client relationship.
4. The Defendant has stated that he has filed a complaint with the Board
of Professional Accountability against [Mr. Byrd].
5. That the Defendant is hiring private counsel.
6. That the above actions have rendered the attorney/client relationship
damaged to the point that it is unrepairable.
On October 26, 2012, the trial court granted Mr. Byrd‟s motion to withdraw as
counsel. The trial court held that the Defendant would represent himself with Mr. Byrd
serving as elbow counsel.
The Defendant, pro se, subsequently filed several motions and memoranda of law. On
January 25, 2013, the Defendant filed a motion for appointment of counsel, requesting that
Mr. Byrd be reappointed as counsel. The trial court held a hearing on the motion and issued
the following order on April 5, 2013:
This Order memorializes the Court‟s April 4, 2013 bench ruling that
[the] Defendant has forfeited his right to counsel. In making this
determination the Court found that the Defendant has engaged in “extremely
serious misconduct” setting forth the reasons on the record and within this
written order. Attorney Jack Byrd has been relieved as counsel, however, the
above-captioned matter remains set for trial on April 8, 2013.
....
Here, after holding a hearing on April 4, 2013, the Court has found that
the Defendant forfeited his right to counsel due to the following grounds:
1. Current defense counsel is [the] Defendant‟s fourth appointed
counsel. Prior to Mr. Byrd, Defendant had been represented by
Jessamine Grice of the Public Defender‟s Office, Paul Walwyn,
[FN3] and Graham Prichard. He has had difficulties with all of
his appointed counsel and continually requested a new attorney.
Defendant refused to cooperate with any of his appointed
counsel and filed complaints against them with the Consumer
Assistance Program Board of Professional Responsibility
(CAP).
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[FN3] The court file reflects Mr. Walwyn made
an oral motion to withdraw on March 25, 2011.
Thereafter he filed three motions to withdraw as
counsel of record, filed on August 19, 2011;
November 3, 2011; and May 2, 2012. The Court
denied two of the written motions during hearings
held on August 25, 2011 and November 18, 2011,
respectively. The final request, which was
granted on May 16, 2012, stated, “Mr. Carter has
become verbally abusive to my staff who are
trying to help him.” (Motion to Withdraw as
Counsel of Record, filed May 2, 2012). [The]
Defendant filed a pro se motion on April 16,
2012, styled “Motion Requiring Counsel to
Withdraw & Appointing Replacement Counsel”
where he details the CAP complaint he filed
against Mr. Walwyn.
2. As noted in this Court‟s Order denying a previous request by
Mr. Byrd to be relieved as counsel, [FN5] issued September 25,
2012, [the] Defendant spat on Mr. Byrd after the September 4,
2012 suppression hearing.
[FN5] Since his appointment in mid-May 2012,
Mr. Byrd requested to be relieved as counsel
through an oral or written motion on at least three
occasions: July 12, 2012; September 11, 2012;
October 24, 2012.
3. [The] Defendant‟s hostile reaction to Mr. Byrd has continued
and escalated throughout Mr. Byrd‟s representation. Mr. Byrd
has reported previous threats made by [the] Defendant, and at
the April 4, 2013 hearing, he testified as to the most recent
threats Defendant has made to Mr. Byrd, his family, and his law
office staff. [The] Defendant made some of his statements on
Mr. Byrd‟s law office voice message system, and these recorded
threats were admitted as an exhibit to the April 4th hearing (Ex.
1). Among other violent statements, [the] Defendant threatened
to “slash” Mr. Byrd in court should he continue as counsel on
the case.
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4. During multiple court hearings, [the] Defendant has left the
courtroom in the midst of the proceeding, stomping and/or
yelling obscenities as he did so. For instance, he refused to
participate in his suppression hearing held on September 4,
2012.
5. Additionally, [the] Defendant has refused to come into court
for hearings. For example, during his video arraignment, [the]
Defendant kept his back to the camera so the Court could not
see his face. And, most recently on April 4, 2013, [the]
Defendant refused to come to court, physically threatening
officers, resulting in [the] Defendant being pepper sprayed in
order to subdue him.
6. [The] Defendant has engaged in delay tactics by continually
requesting to represent himself and then asserting his right to
counsel. [FN7] In fact, on Friday, January 25, 2013, the Friday
before [the Defendant‟s] previously set trial date, [the]
Defendant filed a “Motion for Appointment of Counsel”, where
he requested the Court re-appoint Jack Byrd as counsel for trial
because he no longer wanted to proceed pro se. After holding a
brief hearing, the Court granted [the] Defendant‟s request;
however, after the hearing [the] Defendant was verbally abusive
then left the courtroom before the hearing officially concluded.
[FN7] For example, [the] Defendant requested to
proceed pro se on September 25, 2012, and he
partially completed a Rule 44(a) “Written Waiver
& Order – Pro Se Representation”, which was
denied by this Court. After subsequent requests,
on October 16, 2012, the Court granted [the]
Defendant‟s motion to proceed pro se and
appointed elbow counsel. At [the] Defendant‟s
request, the Court issued an order on January 4,
2013, directing TDOC to give [the] Defendant
adequate computer access to prepare for his case.
Shortly thereafter, however, [the] Defendant filed
a pro se “Motion for Appointment of Counsel”,
requesting he be appointed counsel, which was
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heard on January 25, 2013. This motion was
followed by a pro se “Motion of Permanent
Injunctive Relief in the Trial Court Judge The
Honorable Cheryl Blackburn”, filed on February
22, 2013, where he cited the Tennessee and
Federal Rules of Civil Procedure and alleged this
Court acted in concert with others to deprive him
of his constitutional right to counsel.
Accordingly, [the] Defendant has engaged in “extremely serious
misconduct” justifying his forfeiture of counsel. Holmes, 302 S.W.3d at 848.
The trial court held that the Defendant would proceed pro se. On April 5, 2013, the
trial court appointed Charles Walker as standby counsel and stated that the Defendant‟s trial
would commence on April 8, 2013. The trial court stated that “[s]hould [the] Defendant
refuse to participate in his trial or engage in conduct necessitating his removal from the
courtroom, standby counsel shall represent the Defendant while he is tried in absentia. [The]
Defendant will not frustrate the orderly trial process by engaging in any further „extremely
serious misconduct.‟” During trial, representing himself, the Defendant repeatedly requested
to be represented by counsel and told the trial court that he could not represent himself. The
trial court responded that it would adhere to its ruling that the Defendant had forfeited the
right to counsel based on his actions. The Defendant refused to enter the courtroom during
jury selection but watched the proceedings from a holding booth. The Defendant made his
challenges to the selected jurors from the holding booth while Mr. Walker conducted the
proceedings on his behalf. The Defendant did participate in the trial, and questioned and
cross-examined witnesses himself.
2. Suppression
a. First Motion to Suppress
During the duration of his representation by a series of attorneys, the Defendant filed
several motions to suppress and or motions requesting a rehearing of the motion to suppress.
The first of these was filed by the Defendant‟s third attorney, Mr. Walwyn, and it was filed
August 5, 2011. The motion requested the suppression of evidence resulting from the search
of the Defendant‟s vehicle. In the motion, the Defendant contended that the police towing of
his vehicle to an impound lot was an improper warrantless seizure because law enforcement‟s
presence on his property where the vehicle was parked was unlawful. The Defendant
contended that the subsequent issuance of a search warrant for the vehicle was unlawful in
violation of Tennessee Rule of Criminal Procedure 41. On September 14, 2011, the trial
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court held a hearing on the motion during which the following evidence was presented:
Detective John Eubank testified that he was employed by the La Vergne Police Department
and investigated a home burglary that occurred on April 5, 2010, resulting in the theft of a
comic book collection. Detective Eubank testified that his investigation of the theft led him
to the Defendant‟s residence in Davidson County. He described the Defendant‟s residence as
a condominium or town home. Detective Eubank testified that he went to the Defendant‟s
residence in the early afternoon of April 19, 2010, and observed the Defendant‟s vehicle
parked in a parking spot located in a group of parking spots next to the dumpster that served
the condominium building. Photos of the parking lot and the Defendant‟s parked vehicle
were identified by the detective. Detective Eubank stated that it appeared that the
Defendant‟s vehicle was parked in a spot not assigned to any particular condominium unit
but possibly assigned to visitors at the complex.
Detective Eubank approached the vehicle and looked inside through the back window.
He did not see the Defendant nearby. Detective Eubank testified that, “in plain view,” on
the backseat of the Defendant‟s vehicle, Detective Eubank observed comic books matching
the victim‟s description of the stolen comic books, in that they had a black “S” written in
sharpie pen on the comic books. At that point, Detective Eubank made the decision to obtain
a search warrant for the vehicle. He spoke with his supervisor, and they concluded that, in
order to investigate the home burglary, the vehicle needed to be secured while the search
warrant was being prepared. Detective Eubank testified that, after he made the decision to
tow the Defendant‟s vehicle, Detective Eubank knocked on the Defendant‟s condominium
door to try and interview the Defendant. He clarified that he did not open the door to the
Defendant‟s vehicle when he looked inside the vehicle through the window.
On cross-examination, Detective Eubank stated that he had arrived at the Defendant‟s
residence based on information he had received from a citizen, not a police officer.
Detective Eubank testified that he had been conducting surveillance on the Defendant‟s
residence for several days. He agreed that the Defendant lived in a gated community, but he
recalled that the gates remained open to the public during daylight hours and were closed at
night.
Detective Eubank testified that what he saw through the window in the backseat of the
Defendant‟s vehicle was “absolutely to the T” the stolen items described by the victim.
Detective Eubank stated that he called his supervisor to discuss searching or seizing the
vehicle. Detective Eubank stated that neither the vehicle‟s engine nor its tailpipe was warm.
Detective Eubank eventually called a tow truck to tow the Defendant‟s vehicle. The
Defendant‟s vehicle was towed to the impound lot, and Detective Eubank sought a search
warrant for the vehicle. After towing the vehicle, Detective Eubank left his business card in
the door of the Defendant‟s condominium with a note advising that the Defendant‟s vehicle
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had been seized and that more information about the seizure could be obtained from the La
Vergne Police Department. On April 21, 2010, Detective Eubank obtained a search warrant
from Rutherford County General Sessions Court.
Detective Eubank testified that he did not see any signs that the vehicle had been
recently used when he decided to tow it. He testified that the parking lot, in his opinion, was
“open to the public” and that the vehicle appeared to be parked in a “visitor‟s” parking spot
and not a “homeowner‟s.” He denied seeing “no trespass” signs or similar signage on the
entrance to the parking lot. Detective Eubank recalled that, while he was waiting for the tow
truck to arrive, he called the victim to confirm that the items in the vehicle belonged to the
victim. The victim again described the stolen comic books, detailing that they were marked
with a black “S,” consistent with those inside the vehicle. Detective Eubank testified that,
after the vehicle had been towed, the victim identified the items in the vehicle at the impound
lot.
The trial court questioned Detective Eubank about the condominium complex where
the Defendant‟s vehicle was located. He testified that it was “common practice” for
apartment and condominium complexes to leave the gates open during the day and to shut
them at night for security purposes. Detective Eubank stated that he had been to this
condominium complex several times and recalled that the gates were open during those
visits.
The Defendant testified that he had been living in the condominium complex for two
years and that the gates were always closed. He testified that a security code was necessary
to gain entry to the complex. He agreed that he had seen vehicles enter the complex without
entering a security code by following another vehicle in through the gates. He stated that
there were signs on the gate prohibiting trespass and indicating that the complex was private
property.
On cross-examination, the Defendant agreed that the complex had two entrances. At
one entrance, the gates stayed closed at all times. He agreed that at the second entrance, the
gates were open during the day to allow the mail truck, yard crews, and trash crews to enter
the complex.
The State read into the record the Defendant‟s history of criminal convictions
involving dishonesty: theft of property valued over $10,000, aggravated assault, felon in
possession of a weapon, two convictions for aggravated robbery, three convictions for
aggravated burglary, and burglary.
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The trial court questioned the Defendant about the condominium complex. The
Defendant testified that the parking spaces in the complex were open to any vehicle and that
there were not assigned spots. He agreed that there was not a fence around the parking lot or
his building.
At the conclusion of the hearing, the trial court took the motion under advisement. On
November 30, 2011, the trial court issued an order denying the motion to suppress. In its
order, the trial court noted that counsel for the Defendant had raised, during his closing
argument, this issue of Detective Eubank‟s jurisdiction, as he was a Rutherford County police
officer and the vehicle was seized in Davidson County. The trial court pointed out that this
issue was not raised in the motion to suppress nor was Detective Eubank questioned about it
during the hearing, however, the trial court held in its order that it was not a constitutional
violation for Detective Eubank to leave his jurisdiction and enter Davidson County to
investigate a crime.
The trial court then stated that it was considering: (1) whether Detective Eubank was
lawfully inside the gated condominium complex when he observed the comic books in the
backseat of the Defendant‟s vehicle; and (2) whether it was appropriate for Detective Eubank
to impound the Defendant‟s vehicle while a search warrant was being sought. The trial court
concluded that the Defendant had “no expectation of privacy in the communal parking lot”
outside his condominium building. The trial court therefore found that “Detective Eubank
did not require a warrant to enter the open, communal parking lot area,” which the trial court
stated was “akin to a private driveway in front of a residence which has been found not to
constitute protected curtilage when it abuts a public sidewalk.” The trial court found that it
was lawful for Detective Eubank to tow and impound the vehicle without first obtaining a
search warrant, and it denied the Defendant‟s motion to suppress.
b. Motion to Rehear
In August 2012, while being represented by his fourth attorney, Mr. Byrd, the
Defendant filed a motion to rehear the suppression issue. In the motion, the Defendant
argued that Detective Eubank did not have the “jurisdictional authority” to leave his home
jurisdiction of Rutherford County and enter Davidson County to seize the Defendant‟s
vehicle, and thus, the evidence seized from his vehicle should be suppressed. The trial court
held a hearing on the sole legal issue of Detective Eubank‟s jurisdictional authority.
Following the hearing, the trial court issued an order stating:
After reviewing the case law, the Court finds that the issue presented by [the]
Defendant is an issue of first impression in Tennessee. There is case law in
Tennessee concerning when an officer continues a pursuit across jurisdictional
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lines and case law regarding an arrest made outside of jurisdictional lines.
This Court, however, was unable to find case law on point with the facts in
[the] Defendant‟s case; that is, circumstances where out of county officers
cross jurisdictional lines to seize a vehicle that is stationary in another county
to then take back across county lines to execute [a] search warrant. This
Court, however, has looked to case law from Sixth Circuit federal and state
courts for guidance. Case law from sister jurisdictions of Ohio and Michigan
have differentiated between constitutional violations requiring suppression
versus statutory violations. Having reviewed this case law, the Court finds the
same reasoning applies here and is harmonious with the ruling in the
Tennessee roadblock case State v. Hicks, that concluded “suppression of
evidence is not required if the statutory violation does not actually infringe
upon a specific constitutional protection or guarantee.” 55 S.W.3d 515, 523
(2001).
For example, the Sixth Circuit held in Leis that a police
department‟s violation of Ohio State law prohibiting officers to
execute search warrants outside of their jurisdiction was a
technical violation that did not render the search and seizure
unreasonable in constitutional terms for any of the multiple
cases the Sixth Circuit was considering in its decision. Steven
Guest et al v. Simon Leis, et. al, 255 F.3d 325, 334 (citing State
v. Klemm, 536 N.E. 14, 16 (Oh. Ct. App. 1987; United States v.
Green, 178 F.3d 1099, 1106 (10th Cir. 1999). Although it was
argued that the police were not entitled to immunity because
their lack of jurisdiction rendered them as private citizens who
are not permitted to conduct searches, the Sixth Circuit
disagreed on the basis no Fourth Amendment constitutional
violation occurred. Id. at 337.
The Supreme Court of Ohio has held that the
exclusionary rule does not require suppression of evidence
gathered during a warrantless arrest simply because the arrest
was made outside of the officer‟s jurisdiction, concluding that
the exclusionary rule applied only to those cases involving
evidence obtained in violation of the United States Constitution,
not to cases involving evidence obtained by violative acts of
state statutes only. Kettering v. Hollen, 416 N.E.2d 598 (Oh. Ct.
App. 1980); see also State v. McCoy, No. 05-CA-29, 2006 WL
13
 39100, at *11 (Oh. Ct. App. Jan. 5, 2006) (relying on Kettering
analysis).
An even more recent case from the Supreme Court of
Ohio, State v. Jones, 902 N.E.2d 464, 467 (Oh. 2009)
differentiated between statutory versus constitutional violations.
Although that case involved a traffic stop outside of an officer‟s
territorial jurisdiction, the case relies on the United States
Supreme Court decision Virginia v. Moore, 128 U.S. 164, 128
S. Ct. 1598 (2008), where the United States Supreme Court
“acknowledged that although states could legislate a higher
standard on searches and seizures, those laws do not alter the
requirements of Fourth Amendment.” Jones, 902 N.E.2d at 467.
That is, the Ohio Supreme Court interpreted the ruling in Moore
as “remov[ing] any room for finding that a state status, such as
R.C. 2935.03 [the Ohio state statute at issue in the Jones case
regarding the territorial authority of the officer who made the
arrest outside of his jurisdiction], in and of itself, could give rise
to a Fourth Amendment violation and result in suppression of
the evidence.” Jones, 902 N.E.2d at 467.
In the unpublished Michigan case of People v. Zachary,
out of county officers obtained a valid search warrant and
executed it on a residence outside of their jurisdiction. People v.
Thomas Ray Zachary, No. 292619, 2010 WL 3718830 (Mich.
Ct. App., Sept. 23, 2010). The Michigan appellate court found
that the purpose of the local statute limiting jurisdiction “is to
protect the rights and autonomy of local governments, not the
rights of criminal defendants.” Id. at *2 (citations omitted). As
such, the Court held that a statutory violation of jurisdiction did
not require application of the exclusionary rule. Id. at *4.
Although, here, the Lavergne police department exceeded their
jurisdictional parameters under T.C.A. § 6-54-301, the violation is statutory in
nature, not constitutional. As such, the exclusionary rule does not apply.
Since there was no violation of [the] Defendant‟s constitutional rights under
the Fourth Amendment of the U.S. Constitution or Article 1, § 7 of the
Tennessee Constitution, the Court DENIES [the] Defendant‟s suppression
motion as to jurisdiction and relies upon its previous ruling issued in its
November 30, 2011 Order.
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(footnotes omitted).
B. Trial
The case then proceeded to trial in two phases, the first phase on the theft charge and
the second phase on the felon in possession of a weapon charge. On the morning of trial, the
trial court questioned the Defendant about several witnesses he had listed as testifying,
Christine Keeves, Sergeant Charles Rutzky, and Lieutenant Gordon Howey. The trial court
then questioned each of the witnesses about their involvement with or knowledge of the
Defendant‟s case.
Sergeant Rutzky testified that he worked for the Metropolitan Nashville Police
Department and was not involved in this case. He stated that he had nothing to do with the
comic books, the seizure of the Defendant‟s vehicle, or any further criminal investigation.
He stated that he had no idea why he had been subpoenaed. Sergeant Rutzky testified that no
one from the La Vergne Police Department had contacted him about the Defendant‟s case.
The trial court found that Sergeant Rutzky had no knowledge of the case and no involvement
with the investigation and excused him from his subpoena.
Lieutenant Howey testified that he worked for the Metropolitan Nashville Police
Department and did not know anything about this case. He testified that he had nothing to do
with the recovery of the comic books or the investigation of the burglary in La Vergne. He
stated that he did not know why he was subpoenaed. The trial court found that Lieutenant
Howey knew nothing about the case and excused him from his subpoena.
Christine Keeves testified that she worked for the La Vergne Police Department in the
evidence division. She stated that she photographed the Defendant‟s vehicle when it was
seized but had nothing to do with the impoundment of the vehicle or the chain of custody.
The trial court excused her from her subpoena.
The parties then presented the following evidence: Dr. Walter Clark, the victim in this
case, testified that, in April 2010, he worked as a veterinarian and lived in La Vergne,
Tennessee, located in Rutherford County. He testified that he was the victim of a burglary of
his home on April 5, 2010. He left his home for work at around 6:00 a.m. that day and
returned at 8:00 p.m. When he returned home, he noticed the lights were on inside his house,
which he said was unusual. He entered his garage and saw that his back door had been
kicked in, so he called the police. Stolen from his home were a flat screen television, power
tools, video game machines, and collectible comic books. The power tools had been kept in
15
the garage, the television in the kitchen, the video game machines in the bonus room, and the
comic books in the home office.
Dr. Clark testified that he had collected comic books for thirty to thirty-five years,
focusing on comic books from the “golden age,” the 1930‟s and 1940‟s. Dr. Clark said that
he bought comic books online and traveled to auction houses around the country, spending an
average of $5,000 per month. He stated that he rarely sold comic books. Dr. Clark described
himself as a comic book “collector” and stated that his collection had been ranked 74th in the
country by an online registry. Dr. Clark stated that the portion of his comic book collection
stored in his spare bedroom was not stolen during the burglary. He testified that his more
valuable comic books were stored in a safe at his veterinary office.
Dr. Clark testified that some of the stolen comic books were wrapped individually in a
plastic bag with a cardboard support. They were stored in a specialized cardboard box or
metal container specifically designed for comic book storage. Dr. Clark estimated that about
1,000 comic books were stolen during the burglary. The day after the burglary, Dr. Clark
called area comic book shops in Davidson, Rutherford, and Williamson counties to alert them
of the theft. Dr. Clark spoke with “Adam” at The Great Escape in Nashville, which he
described as a “collectibles store” selling vintage comic books. Dr. Clark described the
stolen comic books and the container they were in and “Adam” confirmed “specifically that
those items were presented to him for sale” on the day of the burglary. Dr. Clark called The
Great Escape in Madison and provided descriptions of the stolen comic books to a store
employee. About a week later, Dr. Clark received a call from the Madison store that “some
gentlemen were there [at the store] with some of the comics [Dr. Clark] had described” and
were attempting to sell the comic books. Dr. Clark immediately drove to the Madison store
but the persons had already left, and the store had not purchased any of the comic books. He
spoke with Jason Monk, assistant manager of The Great Escape in Madison, and “four of the
books that [Mr. Monk] described to [Dr. Clark] matched exactly with the books in the metal
container” stolen from Dr. Clark‟s residence.
Dr. Clark testified that The Great Escape did purchase his stolen comic books on other
occasions, and Dr. Clark identified those comic books as ones stolen from his residence. One
comic book had his mother‟s name on it, which helped him identify that the batch of comic
books belonged to him. He also identified the containers. Dr. Clark eventually bought back
the stolen comic books from The Great Escape.
Dr. Clark testified that he went to the impound lot at the La Vergne Police Department
and identified, through the car window, some of the stolen comic books in the backseat of the
Defendant‟s vehicle. Through the window, it was “apparent” to Dr. Clark that the comic
books were his because of their markings. Eventually, Dr. Clark examined the comic books
16
found in the vehicle and confirmed that they were his. Dr. Clark recovered other comic
books by contacting or being contacted by other collectors or dealers throughout the nation
who found his name on receipts or other packaging. Dr. Clark repurchased the comic books,
in one instance paying a collector in Georgia $4,000. He also made contact with a dealer in
New York City at Metropolis Collectibles Inc. (“Metropolis”), which Dr. Clark testified was
the world‟s largest comic book dealer. He paid Metropolis $5,000 for the repurchase of his
stolen comic books. At this point, the State sought to introduce as a business record a
financial statement from Metropolis detailing Dr. Clark‟s purchase. An affidavit given by
Tamara Cain, an accountant at Metropolis, was read for the jury, stating that the financial
statement was a business record kept in the ordinary course of business.
Dr. Clark testified that the comic books he repurchased from Metropolis were
generally undamaged, however, two comic books had sustained some damage, and Dr. Clark
sent those to a conservator to be restored. Dr. Clark stated that he did not recover his stolen
comic books from any other collectors or dealers, other than The Great Escape, the
Defendant‟s vehicle, Metropolis, and the Georgia collector. He stated that some of the stolen
comic books remained missing.
Dr. Clark testified that he had prepared lists of the comic books recovered from New
York, Georgia, and the Defendant‟s vehicle, as well as the comic books not recovered, and
provided a value for each comic book. The lists were entered into the record as evidence.
Dr. Clark stated that he was familiar with the general market for comic books because of his
involvement with monthly auctions. Using his knowledge and pricing guides he was able to
ascertain a fair market value for the comic books. Specifically addressing one comic book
valued at $17,000, Dr. Clark testified that it was from the 1950‟s and relatively rare because
of its availability, subject matter, and condition. Dr. Clark testified that the cumulative value
of the comic books recovered from New York City was $56,400, from Georgia, $7,365, and
from the Defendant‟s vehicle, $2,765. The cumulative value of the comic books not
recovered was $15,500. Dr. Clark testified that he did not prepare a list of the comic books
recovered from The Great Escape, but relied on the cumulative value determined by the staff
at The Great Escape, which was $1,100.
Dr. Clark testified that he visited The Great Escape stores several times to identify his
comic books or meet with employees. During one visit, an employee, Jason Monk, gave him
the license tag number from the vehicle driven by the persons attempting to sell the stolen
comic books. Dr. Clark gave the tag number, 220XPV, to the La Vergne Police Department.
On cross-examination, Dr. Clark agreed that no fingerprints were found at his home to
identify the perpetrator.
17
Adam Collins testified that he worked at The Great Escape in Nashville for twelve
years. Dr. Clark had contacted him looking for some specific comic books in a metal
container, and Mr. Collins recalled that, the day before Dr. Clark‟s call, two men came into
the store trying to sell a metal case of some “very expensive” comic books. Mr. Collins did
not make an offer on them because of the value of the comic books. Mr. Collins immediately
recognized their value because of their rarity. Mr. Collins identified the Defendant in the
courtroom as one of the men who brought the comic books into the store.
On cross-examination, Mr. Collins agreed that he did not call the police when the
Defendant came into the store. He also agreed that there was no video surveillance of the
men inside the store. Mr. Collins testified that he asked the Defendant for the name of the
person selling the comic books, and he gave the name, “Timothy Carter.”
Doug Mabry testified that he was the manager of The Great Escape in Madison and
that Dr. Clark had contacted him about the stolen comic books. Dr. Clark left his phone
number with Mr. Mabry and descriptions of the stolen comic books. Thereafter, “several
African American males” came into the store with “some very rare valuable comic books, the
type that there are generally less than a couple hundred in existence.” Mr. Mabry recognized
the comic books “immediately.” Mr. Mabry informed the sellers that he needed permission
from his manager to buy the expensive comic books, and, in an attempt to delay the sellers
from leaving the store, he went into the back office as if he was speaking to the manager and
called the police and Dr. Clark. Mr. Mabry could not recall if the Defendant was one of the
sellers but he did recall that the men left before the police and Dr. Clark arrived. Another
employee wrote down the license tag number of the vehicle driven by the sellers.
Jason Monk testified that he also worked at The Great Escape in Madison, and he said
that he bought comic books belonging to Dr. Clark. He testified that he knew they were
stolen but bought them knowing that Dr. Clark planned to reimburse the store. Mr. Monk
identified his own handwriting on the “pay-out voucher” used to document the seller‟s
information. He identified the field where he had written down the seller‟s identification,
which he took from the seller‟s driver‟s license. The name on the form was “Timothy
Carter.” When asked if the Defendant was the person who sold him the comic books, Mr.
Monk replied, “I believe it was.”
On cross-examination, Mr. Monk testified that there was no surveillance inside the
store.
The State submitted as evidence a letter from the Tennessee Department of Revenue,
Taxpayer, and Vehicle Services Division identifying the license tag number 220XPV as
being registered to the Defendant.
18
Michael Carpenter testified that he was currently serving a sentence for simple
possession of marijuana and that, in April 2010, he was serving a probation sentence for
possession of cocaine with the intent to sell.
In April 2010, Mr. Carpenter and the Defendant had contact concerning some comic
books. He testified that he and the Defendant were approached by a man on the street who
said he had some “merchandise” to sell in exchange for cocaine and money. Mr. Carpenter
stated that the comic books came from the man on the street “who wanted crack” in exchange
for the comic books. Mr. Carpenter testified that he told Detective Eubank, during an
interview at Mr. Carpenter‟s residence, that he and the Defendant “got the comic books from
a guy that wanted crack.” He agreed that he sold some comic books to The Great Escape.
Mr. Carpenter denied telling Detective Eubank, during the same interview at Mr. Carpenter‟s
house, that the Defendant had gotten the comic books came from a house. At this point, a
jury-out hearing was held on Mr. Carpenter‟s prior statement to Detective Eubank.
During the jury-out hearing, Detective Eubank testified that in April 2010, he and Mr.
Carpenter‟s probation officer went to Mr. Carpenter‟s residence. They found a small amount
of marijuana there. After leaving Mr. Carpenter‟s residence, Detective Eubank and Mr.
Carpenter had a phone conversation that was recorded. Detective Eubank testified that Mr.
Carpenter had never told him that the Defendant had bought the comic books from a man
selling drugs on the street. Detective Eubank testified that Mr. Carpenter told the detective
that the Defendant had gotten the comic books from “hitting a lick,” which Detective Eubank
explained was the “street terms . . . meaning he got them in a burglary.” A segment of the
recording was played aloud, and Detective Eubank identified himself, the probation officer,
and Mr. Carpenter speaking. Detective Eubank testified that during the recorded
conversation, Mr. Carpenter said that the Defendant got the comic books “during a lick” and
that the Defendant got them out of a house, “referring to the comic books were taken out of a
house so that [the Defendant] was responsible for taking those comic books.”
Based on this evidence, the trial court held that Mr. Carpenter‟s statement to Detective
Eubank was admissible as evidence pursuant to Tennessee Rule of Evidence 613 as a prior
inconsistent statement. The trial court noted that “Mr. Carpenter is present to testify and can
be cross-examined about this statement.” The trial court determined that the recording was
trustworthy and that the limited segment could be played for the jury.
When the jury returned to the courtroom, Mr. Carpenter resumed his testimony, stating
that, when Detective Eubank and the probation officer came to talk to him, he did tell them
about the comic books and about the Defendant‟s involvement. Mr. Carpenter stated that his
memory of his statement was clarified by the audio recording played during the jury-out
19
hearing. Mr. Carpenter identified himself on the recording. He testified that the Defendant
did not tell him from where he obtained the comic books, just that “[the Defendant] said he
hit a lick,” meaning that the Defendant got them illegally.
Detective John Eubank testified that he investigated the burglary at Dr. Clark‟s
residence. The State showed Detective Eubank two receipts from The Great Escape, and he
identified the seller‟s names on the receipts as “Timothy Carter” and “Michael Carpenter.”
Detective Eubank testified that the victim gave him the license tag number from the seller‟s
car, and he was able to determine that the tag was registered to the Defendant.
Detective Eubank testified that he met Mr. Carpenter with his probation officer to talk
about the stolen comic books. He asked Mr. Carpenter about where he got the comic books,
and he told Detective Eubank that he got them “hitting a lick.” Mr. Carpenter also stated that
he got them “out of some guy‟s house.”
Detective Eubank testified that he went to the Defendant‟s residence in Antioch,
Davidson County, Tennessee, about ten minutes‟ drive from Dr. Clark‟s house. The address
of the Defendant‟s residence was listed on one of the receipts from The Great Escape. There
he saw a vehicle with a box of comic books in the backseat, viewable through the car
window. Detective Eubank called Dr. Clark while in the parking lot and described the comic
books to him to be sure they were Dr. Clark‟s stolen comic books. Dr. Clark confirmed the
marking on the comic books, a black “S.” He subsequently had the vehicle towed to the La
Vergne Police Department and obtained a search warrant for the vehicle. Inside the vehicle,
in addition to the comic books, Detective Eubank found a vehicle registration and cell phone
bill, both listing the Defendant‟s name. Detective Eubank also found a gun in the engine
compartment of the vehicle. The gun was shown to the jury and entered into the record as
evidence.
On cross-examination, Detective Eubank agreed that he did not get a warrant to enter
the condominium complex where the Defendant lived, but he stated that the gates were open
to the public. He agreed that he did not contact the Davidson County police, the county in
which he seized the Defendant‟s vehicle. He also agreed that his jurisdiction was Rutherford
County, not Davidson County. Detective Eubank testified that listed on the applications for
the search warrant was the information that the vehicle was to be seized from another county.
Detective Eubank agreed that no fingerprints were recovered from the gun found in the
Defendant‟s vehicle. He also agreed that no fingerprints were found on the comic books or
their container.
The State rested and the Defendant advised the trial court that he planned to call two
witnesses, Detective William White and Sergeant David Durham. The trial court ordered the
20
Defendant to question both witnesses outside the presence of the jury, as a “dry run,” so the
trial court could determine the relevance of the Defendant‟s questions. After the “dry run”
examination of both witnesses, the jury was brought into the courtroom, and the Defendant
declined to question either of the witnesses.
Outside the presence of the jury, the trial court noted for the record that the Defendant
had yelled obscenities in the courtroom and acted in a disruptive manner and had to be
escorted out of the courtroom. Officer Jeff Bills testified that he was a court officer for the
trial judge. He stated that, when the Defendant was not in the courtroom, he was able to see
and hear the proceedings through a live video stream. Officer Terry Lafary testified that he
worked for Tennessee Department of Correction and had transported the Defendant to and
from court throughout the trial. Officer Lafary stated that, one day during the trial, the
Defendant was pepper sprayed because he refused to get dressed to come to court. He
described the Defendant as belligerent and agitated.
Based upon this evidence, the jury convicted the Defendant of theft of property valued
at over $60,000.
As to the felon in possession of a weapon charge, Elaine Ragan testified that she was
the Criminal Court Clerk‟s Office division chief. Ms. Ragan identified a certified copy of the
Defendant‟s prior conviction for a felony in case number 2004-B-1762, Theft of Property, a
Class C Felony.
Based upon this evidence, the jury convicted the Defendant of being a felon in
possession of weapon. At the sentencing hearing, the State offered the presentence report
and certified copies of the Defendant‟s convictions. Those convictions showed that the
Defendant had previously been convicted of: two counts of burglary, three counts of
aggravated burglary, two counts of aggravated robbery, one count of felony possession of a
weapon, one count of theft of property valued at over $10,000, one count of theft of property
valued at over $1,000, and one count of aggravated assault. The Defendant had been
released on bond at the time he committed the offenses herein.
The trial court sentenced the Defendant as a career offender to concurrent sentences of
thirty years for his theft conviction and six years for his weapon possession conviction. The
trial court noted that the Defendant‟s sentence was required to run consecutively to his
sentence in another case. It is from these judgments that the Defendant now appeals.
II. Analysis
21
On appeal, the Defendant contends that: (1) the trial court erred when it determined
that he had forfeited his right to counsel; (2) the trial court erred when it denied his motion to
suppress evidence seized from his vehicle; (3) the trial court erred when it determined that
the State had not committed a Brady violation; (4) the evidence is insufficient to sustain his
conviction for theft of property valued over $60,000; (5) the trial court erred when it admitted
into evidence a business record and an out-of-court statement pursuant to hearsay exceptions;
(6) the trial court erred when it declined to bifurcate the felon in possession of a weapon
charge; and (7) the trial court erred when it limited the Defendant‟s ability to call witnesses
to testify.
A. Right to Counsel
The Defendant first contends that the trial court erred when it determined that he had
forfeited his right to counsel. He contends that, though he was “difficult, sometimes
uncooperative and had engaged in some misconduct,” his behavior did not rise to the level of
“extremely serious misconduct” justifying a forfeiture of counsel. The State responds that
the Defendant‟s behavior was “abusive, delaying, and manipulative of the judicial process”
and justified his forfeiture of his right to counsel due to his “extremely serious misconduct.”
We agree with the State.
“A trial court‟s determination after a hearing that a defendant has behaved in such a
manner as to forfeit his constitutional right to legal counsel at trial is a mixed question of law
and fact.” State v. Holmes, 302 S.W.3d 831, 837-38 (Tenn. 2010) (citing Abdur’Rahman v.
Bredesen, 181 S.W.3d 292, 305 (Tenn. 2005)). “This Court reviews mixed questions of law
and fact de novo, accompanied by a presumption that the trial court‟s findings of fact are
correct. Id. (citations and footnote omitted).
The right to counsel is grounded in the constitution. It is a fundamental constitutional
principle that a person is entitled to a fair trial. U.S. Const. amend. XIV, § 1 (providing that
no State shall “deprive any person of life, liberty, or property, without due process of law”).
To protect this right, a person who is accused of a crime is entitled to representation by
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This right is guaranteed by
both the Sixth Amendment to the United States Constitution and article I, section 9, of the
Tennessee Constitution. Gideon v. Wainwright, 372 U.S. 335, 342 (1963); Vaughn v. State,
202 S.W.3d 106, 116 (Tenn. 2006); State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984);
see U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . .
to have the Assistance of Counsel for his defence.”); Tenn. Const. art. I, § 9 (“[I]n all
criminal prosecutions, the accused hath the right to be heard by himself and his counsel.”).
22
The United States Supreme Court has observed, however, that “while the right to
select and be represented by one‟s preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is to guarantee an effective advocate for
each criminal defendant rather than to ensure that a defendant will inexorably be represented
by the lawyer whom he prefers.” State v. White, 114 S.W.3d 469, 475-76 (Tenn. 2003)
(citing Wheat v. United States, 486 U.S. 153, 159 (1988); State v. Huskey, 82 S.W.3d 297,
305 (Tenn. Crim. App. 2002)). Thus, under both the Sixth Amendment and article I, section
9, the right to the counsel of one‟s choosing “must be balanced against the requirements of
the fair and proper administration of justice.” Id. (citing Huskey, 82 S.W.3d at 305 and
United States v. Micke, 859 F.2d 473, 480 (7th Cir. 1988)).
The issue of a criminal defendant‟s forfeiture of right to counsel is one that was
addressed at length by our Supreme Court in Holmes, as well as in State v. Carruthers, 35
S.W.3d 516 (Tenn. 2000). In Holmes, our Supreme Court stated:
Although the right to counsel at trial is fundamental, it is not without limits. A
criminal defendant may be deemed to have forfeited this right when he or she
engages in “extremely serious misconduct,” Carruthers, 35 S.W.3d at 548
(citing Goldberg, 67 F.3d at 1102), or engages in an “egregious manipulation”
of the right to counsel “so as to delay, disrupt, or prevent the orderly
administration of justice.” Id. at 550. Whether a defendant engages in some
form of conduct that justifies a ruling of forfeiture may generally be
determined only after an evidentiary hearing at which the defendant is present
and permitted to testify. [FN6] Means, 907 N.E.2d at 662; King v. Superior
Court, 107 Cal. App. 4th 929, 132 Cal. Rptr. 2d 585, 598–99 (2003). The State
bears the burden of establishing that the defendant committed such actions as
to justify a forfeiture. See Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct.
1232, 51 L. Ed. 2d 424 (1977). Factors relevant to the trial court‟s
consideration include (1) whether the defendant has had more than one
appointed counsel; (2) the stage of the proceedings, with forfeiture “rarely . . .
applied to deny a defendant representation during trial”; (3) violence or threats
of violence against appointed counsel; and (4) measures short of forfeiture
have been or will be unavailing. Means, 907 N.E.2d at 659-661.
[FN6] An exception to this general rule may obtain where the
defendant engages in the conduct at issue in open court. See,
e.g., United States v. Leggett, 162 F.3d 237, 250 (3rd Cir.1998).
Holmes, 302 S.W.3d at 841.
23
In Carruthers, a death penalty case, the defendant employed a “significant pattern of
verbal threats and manipulation of the system resulting in the ultimate withdrawal of seven
lawyers and deliberate delay of the judicial process, all occasioned by the defendant.” Id.
After reviewing the defendant‟s behavior and history of representation, our Supreme Court
concluded that “an indigent criminal defendant may implicitly waive or forfeit the right to
counsel by utilizing that right to manipulate, delay, or disrupt trial proceedings.” Carruthers,
35 S.W.3d at 549. Our Supreme Court further concluded that the defendant‟s conduct “was
sufficiently egregious to support a finding that he forfeited his right to counsel” in that the
defendant “repeatedly and unreasonably demanded that his appointed counsel withdraw and
that new counsel be appointed,” made unreasonable demands, “outrageous allegations and
threats,” and overall employed tactics to delay his case from going to trial. Id. at 550. The
Court commented: “in situations such as this one, a trial court has no other choice but to find
that a defendant has forfeited the right to counsel; otherwise, an intelligent defendant „could
theoretically go through tens of court-appointed attorneys and delay his trial for years.‟” Id.
(citation omitted).
In Holmes, contrary to Carruthers, our Supreme Court found that the defendant‟s
conduct did not justify forfeiture of representation. The facts are distinguishable from those
in Carruthers, in that the issue of the defendant‟s forfeiture arose from “a single incident
involving a single attorney but includ[ed] a physical assault and an ambiguous verbal threat.”
Holmes, 302 S.W.3d at 841. The defendant in Holmes “took no action to remove counsel
from his case,” and there was no indication that the defendant attempted to “delay or disrupt
the proceedings,” or “took any other actions aimed at manipulating the court or obstructing
the orderly progression of his trial.” Id. at 847. Because the Supreme Court in Holmes
viewed the facts as markedly different from those in Carruthers, it reviewed case law from a
variety of jurisdictions and concluded:
[T]hese cases make clear that a criminal defendant‟s constitutional right
to the assistance of counsel is so fundamental, particularly at trial, that only the
most egregious misbehavior will support a forfeiture of that right without
warning and an opportunity to conform his or her conduct to an appropriate
standard. We agree with the Massachusetts Supreme Court that “[f]orfeiture is
an extreme sanction in response to extreme conduct that imperils the integrity
or safety of court proceedings,” that it should be utilized only under
“extraordinary circumstances,” and that it should be a “last resort in response
to the most grave and deliberate misconduct.” Means, 907 N.E.2d at 658, 659,
660. We also agree with the United States Court of Appeals for the Second
Circuit that a defendant should not be found to have forfeited (or implicitly
waived) his right to counsel at trial on the basis of a single incident of physical
violence unless the violence was extreme and (1) the defendant was previously
24
warned that he could lose the right to counsel for such behavior; (2) there is
evidence that the defendant engaged in the violence in order to manipulate the
court or delay the proceedings; or (3) it is not possible to take other measures
that will protect the safety of counsel. Gilchrist, 260 F.3d at 89. (footnote
omitted)
Id. at 846-47. In Holmes, the Court held that “the [d]efendant‟s behavior toward his lawyer
[did] not justify the extreme sanction of total forfeiture of his right to counsel.” Id. at 847-48.
The Court emphasized the particularity of the facts of the case:
(1) [d]efendant‟s behavior occurred prior to his trial such that a forfeiture
affected his right to counsel at trial rather than at a later proceeding such as
sentencing; (2) there is no indication in the record that [d]efendant attacked his
lawyer in order to obstruct, delay, or manipulate the proceedings; (3)
[d]efendant‟s attack did not result in bodily injury to his lawyer; (4)
[d]efendant‟s assault was limited to a single incident committed against his
first lawyer; and (5) other means of protecting the lawyer‟s safety were
available.
Id. at 848. The Court noted, however, that whether an attack constituted “extremely serious
behavior” sufficient to justify the forfeiture of counsel was a determination to be made based
“upon the particular facts and circumstances of the attack at issue.” Id. at 847. In a footnote
to this statement, the Court advised:
We do not imply by our decision in this case that a criminal defendant may not
be found to have forfeited his right to counsel in the absence of a physical
assault. A forfeiture (or an implicit waiver) may withstand constitutional
scrutiny where, for instance, a defendant repeatedly threatens harm to his
lawyer and/or his lawyer‟s family and it is apparent that the defendant has the
ability to deliver on his threats.
Id. at 847.
In the present case, the trial court held a hearing on this issue and made specific
findings of fact in its order holding that the Defendant had forfeited his right to counsel. The
Defendant was represented by four different attorneys and refused to cooperate with any of
them. He repeatedly asked the trial court to allow him to proceed pro se and filed motions
without the aid of counsel. The Defendant was belligerent and verbally abusive to Mr.
Walwyn‟s and to Mr. Byrd‟s staffs. He left messages on Mr. Byrd‟s voicemail, which were
played for the trial court, threatening to assault Mr. Byrd in court. As indicated by the trial
25
court, the Defendant was difficult or hostile towards each of his four appointed counsel, and
the Defendant even spit on Mr. Byrd in court. Mr. Walwyn and Mr. Byrd both advised the
trial court that the Defendant was making it difficult, if not impossible, for them to represent
him. On several occasions, the Defendant refused to come into the courtroom and refused to
participate in the proceedings that he attended, turning his back to the trial judge during one
proceeding. This evidence supports the trial court‟s finding that the Defendant was engaging
in delay tactics to prevent the case from going to trial.
Even though the forfeiture of counsel occurred prior to trial, based on these facts, we
conclude that the Defendant‟s behavior was “sufficiently egregious to support a finding that
he forfeited his right to counsel” and in such a situation, the trial court had no other choice
than to conclude that the Defendant had forfeited his right to counsel. Carruthers, 35 S.W.3d
at 550. Due to numerous delays caused by the Defendant, this case was not tried until three
years after the crime was committed. The Defendant was uncooperative or refused to
participate in multiple proceedings, and he repeatedly demanded that he be appointed a new
attorney or be allowed to represent himself. The Defendant‟s threatening and abusive
behavior towards his attorneys and their staff seemed to escalate with each new appointment
of counsel. Indeed, the Defendant spit on his fourth attorney and threatened to physically
assault him on multiple occasions. In such a situation, the trial court would be hard-pressed
to appoint a fifth attorney without serious concern for his or her safety.
Accordingly, we conclude that the Defendant‟s behavior warranted a forfeiture of the
right to counsel. We pay close heed to the admonishment in Carruthers that “a finding of
forfeiture is appropriate only where a defendant egregiously manipulates the constitutional
right to counsel so as to delay, disrupt, or prevent the orderly administration of justice.” 35
S.W.3d at 550. We conclude that, in this case, “the record demonstrates such egregious
manipulation” and, thus, a finding of forfeiture was proper. Id. The Defendant is not entitled
to relief as to this issue.
B. Motion to Suppress
The Defendant next contends that the trial court erred when it denied his motion to
suppress evidence seized from his vehicle. He contends that the warrantless seizure of his
vehicle was improper and that the automobile exception does not allow for “indefinite
seizure” without a warrant. He further contends that the fruits of the search are illegal
because Detective Eubank, in seizing the Defendant‟s vehicle, “acted contrary to T.C.A. § 6-
54-301.” The State counters that the comic books that were in plain view of Detective
Eubanks justified the seizure of the Defendant‟s vehicle. The State further argues that any
violation to § 6-54-301 does not “implicate the Defendant‟s constitutional rights and does not
require suppression.”
26
Our standard of review for a trial court‟s findings of fact and conclusions of law on a
motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court‟s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the „strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.‟” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court‟s application of the
law to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing a trial court‟s ruling on a
motion to suppress, an appellate court may consider the evidence presented both at the
suppression hearing and at the subsequent trial. State v. Henning, 975 S.W.2d 290, 299
(Tenn. 1998).
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “„article 1, section 7 [of the Tennessee Constitution]
is identical in intent and purpose with the Fourth Amendment.‟” State v. Downey, 945
S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860
(1968)). The analysis of any warrantless search must begin with the proposition that such
searches are per se unreasonable under the Fourth Amendment to the United States
Constitution and article 1, section 7 of the Tennessee Constitution. This principle against
warrantless searches is subject only to a few specifically established and well-delineated
exceptions. See Katz v. United States, 389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d
798, 801 (Tenn. Crim. App. 1980). Evidence discovered as a result of a warrantless search
or seizure is subject to suppression unless the State establishes that the search or seizure was
conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.
State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
The plain view exception applies when a seized item is in “plain view” from a lawful
vantage point of the officer that conducts the search. See Harris v. United States, 390 U.S.
234, 236 (1968); see also State v. Jamie Lee Pittman, No. 03C01-9701-CR-00013, 1998 WL
128801 (Tenn. Crim. App., at Knoxville, March 24, 1998), no perm. app. filed. The “plain
view” doctrine requires proof that: (1) the objects seized were in plain view; (2) the viewer
had a right to be in position for the view; and (3) the incriminating nature of the object was
immediately apparent. Horton v. California, 496 U.S. 128, 136-141 (1990); see also
Pittman, 1998 WL 128801, at *1.
27
In Armour v. Totty, our Supreme Court, in delineating the plain view doctrine, noted
that the Fourth Amendment protects only “that which an individual seeks to „preserve as
private.‟” 486 S.W.2d 537, 539 (Tenn. 1972) (quoting Katz v. United States, 389 U.S. 347
(1967)). The court said, “An individual does not seek to „preserve as private‟ that which falls
in the „plain view‟ of an officer who has the right to be there. Visual detection of this nature
does not constitute a search within the meaning of the Fourth Amendment.” Id. This Court
has previously held “admissible under the „plain view‟ doctrine” a pistol lying in an
automobile that was observed by an officer “inadvertently while at a place where he had a
right to be.” State v. Yarbro, 618 S.W.2d 521, 524 (Tenn. Crim. App. 1981). Indeed,
“„[e]xtensive, and often noncriminal contact with automobiles will bring local officials in
“plain view” of evidence, fruits, or instrumentalities of a crime, or contraband.‟” State v.
Moats, 403 S.W.3d 170, 182 (Tenn. 2013) (quoting Cady v. Dombrowski, 413 U.S. 433, 442,
(1973)).
“The „automobile exception‟ to the warrant requirement permits an officer to search
an automobile if the officer has probable cause to believe that the automobile contains
contraband.” State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009) (quoting Carroll v. United
States, 267 U.S. 132, 149, (1925)). The automobile exception to the warrant requirement is
founded upon the impracticality in obtaining a warrant to search an inherently mobile situs
and upon the „reduced expectation of privacy‟ in automobiles. Saine, 297 S.W.3d at 207.
Consequently, “[i]f the officer has probable cause to believe that the automobile contains
contraband, the officer may either seize the automobile and then obtain a warrant or search
the automobile immediately.” Id. (citing Chambers v. Maroney, 399 U.S. 42, 52 (1970).
Neither the United States Constitution nor the Tennessee Constitution requires “a separate
finding of exigency in addition to a finding of probable cause.” Id.
In this case, the evidence presented showed that Detective Eubank obtained, from The
Great Escape, the license plate number of vehicle driven by the men attempting to sell Dr.
Clark‟s stolen comic books. Detective Eubank located a vehicle with the same license tag
number and determined it was registered to the Defendant. The vehicle was parked in a
condominium complex, which was open to the public during the day. Detective Eubank
approached the vehicle, which was parked in a community parking space. The Defendant
was not present, and Detective Eubank observed, through the glass window on the rear seat
of the vehicle, a stack of comic books in a container. Suspecting that the comic books
belonged to Dr. Clark, he called Dr. Clark on his cell phone to ask again for a description of
the comic books and their packaging. Over the phone, Dr. Clark gave a description of the
comic books, and his description matched “to a „T‟” the comic books that Detective Eubank
could see in the backseat of the Defendant‟s vehicle. Dr. Clark described a black “S” written
28
on the packaging of the comic books and Detective Eubank observed this same marking on
those inside the vehicle. Based on his observations, Detective Eubank called his supervisor
and a tow company, and the vehicle was towed to the police department‟s impound lot. A
search warrant was later obtained and a subsequent search of the vehicle occurred.
We conclude that: (1) the comic books were in plain view; (2) Officer Eubank had a
right to be in the condominium complex and standing next to the Defendant‟s vehicle when
he viewed the comic books; and (3) the incriminating nature of the comic books was
immediately apparent. Horton, 496 U.S. at 136-41. Detective Eubank‟s observation of the
comic books in plain view gave him probable cause to believe that the Defendant‟s vehicle
contained stolen property, and thus, the seizure of the vehicle pursuant to the automobile
exception was justified. Saine, 297 S.W.3d at 207.
As to the Defendant‟s argument that, pursuant to Tennessee Code Annotated section
6-54-301, Detective Eubank was operating outside the parameters of his jurisdiction and his
authority as a police officer, we agree with the trial court‟s conclusion that this statutory
violation is not a violation of the Defendant‟s constitutional rights, rendering the
exclusionary rule inapplicable. See State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005)
(citing Wong Sun v. United States, 371 U.S. 471, 487 (1963)). The trial court did not err
when it denied his motion to suppress. The Defendant is not entitled to relief on this issue.
C. Brady Violation
The Defendant next contends that the trial court erred when it failed to require the
State to disclose exculpatory evidence favorable to the Defendant. He contends that the
“obviously exculpatory” evidence was the prosecutor‟s telephone conversation “with a man
in New York who had written a check made out to [the Defendant] for some rare comic
books that were ultimately recovered by Dr. Clark . . . . In that conversation, [the prosecutor]
asked the man, whose name [the prosecutor] could not recall, if he could identify the men
who sold him the comic books and the man replied that he could not[.]” The State responds
that this evidence is “weakly exculpatory” and that it is not material.
In Brady v. Maryland, the United States Supreme Court held, “We now hold that the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Evidence that is
“favorable to an accused” includes both “evidence deemed to be exculpatory in nature and
evidence that could be used to impeach the State‟s witnesses.” Johnson v. State, 38 S.W.3d
52, 55-56 (Tenn. 2001). Favorable evidence has also been defined as:
29
evidence which provides some significant aid to the defendant‟s case, whether
it furnishes corroboration of the defendant‟s story, calls into question a
material, although not indispensable, element of the prosecution‟s version of
the events, or challenges the credibility of a key prosecution witness.
Johnson, 38 S.W.3d at 56-57 (quoting Commonwealth v. Ellison, 376 Mass. 1, 379 N.E.2d
560, 571 (1978)). The State has an obligation to disclose “any favorable evidence known to
the others acting on the government‟s behalf in the case, including police.” Johnson, 38
S.W.3d at 56 (quoting Strickler v. Green, 527 U.S. 263, (1999)). Additionally, “The duty to
disclose exculpatory evidence extends to all „favorable information‟ irrespective of whether
the evidence is admissible at trial.” State v. Robinson, 146 S.W.3d 469, 512 (Tenn. 2004)
(citing Johnson, 38 S.W.3d at 56).
The State does not have an obligation to disclose information that is not in the
possession or control of the State. Id. (citing Banks v. State, 556 S.W.2d 88, 90 (1977)). A
defendant must prove the following four prerequisites in order to establish a violation of due
process under Brady:
1. The defendant must have requested the information (unless the evidence is
obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant must prove a due process
violation by a preponderance of the evidence. Id. (citing State v. Spurlock, 874 S.W.2d 602,
610 (Tenn. Crim. App. 1993)).
The Tennessee Supreme Court defined “material” within the context of Brady:
Evidence is deemed to be 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.” . . . [A] reviewing court must determine whether
the defendant has shown that “the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine the
confidence of the verdict.” In other words, evidence is material when, because
of its absence, the defendant failed to receive a fair trial, “understood as a trial
resulting in a verdict worthy of confidence.”
Johnson, 38 S.W.3d at 58 (citations omitted).
30
In the motion for the new trial, the prosecutor testified about his conversation with the
comic book dealer in New York. He stated:
I knew that [the comic books] had obviously been recovered in New
York because [Dr. Clark] bought them back from the man in New York. And
in getting ready for trial I called [the man in New York] – I can‟t remember the
man‟s name, but I had [his name] because [Dr. Clark] had it. . . . [I]t‟s my
recollection that [the man in New York] said that two men had come up there
with these comic books . . . . I asked him, do you think you would be able to
identify either or both of these men. He said no. If he had said yes, I might
have moved on with trying to get some photos sent up there. . . . But he said
no.
....
The fact that the man [in New York] who did the business with the
people who had the comic books said I would not be able to make an
identification at that point, I certainly didn‟t feel like that was exculpatory.
That cut neither way. I mean, time had passed. The fact that somebody could
not make an identification I didn‟t feel made it anymore [sic] or less likely that
the [D]efendant was guilty. . . . . I didn‟t feel like that was exculpatory in any
way. And I felt like what it showed was – what was ultimately introduced at
trial [was the receipt of the sale to the man in New York] showed that
somebody purporting to be [the Defendant] went up there [to New York] with
comic books and did a deal for the comic books.
The Defendant contends that evidence of the prosecutor‟s conversation with the man in New
York was “at the very least favorable” to the Defendant and “possibly exculpatory,” in that
“any doubt that could be cast about the identity of the person selling the comics” was critical
to the Defendant‟s theory of defense.
We conclude that the Defendant has not established all four prerequisites in order to
establish a violation of due process under Brady. Assuming that the Defendant or one of his
attorneys had requested the information about the prosecutor‟s conversation, and the State
suppressed that information, the remaining factors have not been established. We conclude
that the Defendant has not established that this evidence was material, in that the State‟s
withholding of this information did not put the entire case in a different light or undermine
the confidence in the verdict. See Johnson, 38 S.W.3d at 58. The Defendant‟s identity was
never in question, as other witnesses identified the Defendant as the seller of the stolen comic
31
books and his name was listed on sales documentation. The fact that the man in New York
could not identify him is immaterial. The Defendant is not entitled to relief on this issue.
D. Sufficiency of Evidence
The Defendant contends that the evidence is insufficient to sustain his conviction for
theft of property valued at over $60,000. He contends that there was insufficient evidence of
the value of the comic books because Dr. Clark‟s testimony about their value was biased and
speculative because it was “his own personal opinion without any corroboration from an
independent source” and because he did not testify about their condition and quality. The
State responds that Dr. Clark‟s testimony about the value of each comic book and his
explanation for “how he arrived at those values was more than sufficient to establish this
element.” The State contends that it was for the fact-finder to assess Dr. Clark‟s credibility
and that this Court should not re-weigh the evidence in place of the jury. We agree with the
State.
When an accused challenges the sufficiency of the evidence, this Court‟s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). AThe standard of review [for sufficiency of the evidence] 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)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
32
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
“A person commits theft of property if, with intent to deprive the owner of property,
the person knowingly obtains or exercises control over the property without the owner‟s
effective consent.” T.C.A. § 39-14-103(a) (2014). Theft of property valued over $60,000
but less than $250,000 is a Class B felony. T.C.A. § 39-14-105(5) (2014). The value of the
property taken is an element of the offense of theft. Id.; see also State v. Mike Wayne Tate,
No. 03C01-9204-CR-127, 1993 WL 55631, at *2 (Tenn. Crim. App., at Knoxville, March 4,
1993), perm. app. denied (Tenn. June 1, 1993). Tennessee Code Annotated section 39-11-
106(a)(36)(A) defines “value” as “(i) The fair market value of the property or service at the
time and place of the offense; or (ii) If the fair market value of the property cannot be
ascertained, the cost of replacing the property within a reasonable time after the offense.”
The fair market value of property is a question of fact for the jury. See State v. Hamm, 611
S.W.2d 826, 828-29 (Tenn. 1981).
The record shows that the jury was properly instructed on how to assess the value of
the stolen property - that the value of the stolen comic books was the fair market value at the
time of the offense. Dr. Clark testified that he determined the fair market value of the comic
books by using his experience and knowledge as a comic book collector, based particularly
on his monthly involvement in the online comic book market. He also utilized online pricing
33
guides and research. Additionally, Dr. Clark repurchased the stolen comic books from some
of the dealers and collectors, and he used the purchase price in those transactions to help
determine their value. The Great Escape also provided him a valuation for the comic books
that were in its possession. Using these tools and his knowledge, Dr. Clark determined that
the value of the stolen comic books was $83,130. There was an opportunity for cross-
examination of Dr. Clark regarding his determination of the value. The jury heard Dr.
Clark‟s testimony concerning his methodology for ascertaining value and determined that the
fair market value was more than $60,000. We conclude that the evidence presented to the
jury was sufficient to support determination, beyond a reasonable doubt, that the value of the
property exceeded $60,000. The Defendant is not entitled to relief on this issue.
E. Hearsay
1. Affidavit
The Defendant contends that the trial court erred when it admitted into evidence the
affidavit from Tamara Cain, an accountant at Metropolis. The affidavit, he contends, was
admitted into the record in error because it was hearsay and its creator was not present to
testify to its authenticity. He contends that, standing alone, the affidavit “provides scant
evidence at best as to what it purports to be and how it is in any way connected to
[Metropolis], or the sale of Dr. Clark‟s comic books . . . .” He contends that the trial court
did not assess the document for its trustworthiness and should have inquired about the same,
considering the Defendant‟s pro se status. The Defendant also contends that the receipt,
which listed his name, was prejudicial because it allowed the jury to infer that the Defendant
sold the comic books to Metropolis, despite no other evidence of the same. The State
responds that the affidavit was properly admitted pursuant to Tennessee Rules of Evidence
803(6) and 902(11).
“„Hearsay‟ is 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.” Tenn. R. Evid.
801(c). Hearsay is not admissible unless admission is authorized by the evidence rules or by
other controlling provisions of law. Id. at 802. Tennessee Rules of Evidence 803 and 804
list the exceptions to this general rule of inadmissibility. One such exception is for business
records. Tenn. R. Evid. 803(6). It provides as follows:
A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses made at or near the time by or from
information transmitted by a person with knowledge and a business duty to
record or transmit if kept in the course of a regularly conducted business
activity and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the
34
testimony of the custodian or other qualified witness or by certification that
complies with Rule 902(11) or a statute permitting certification, unless the
source of information or the method or circumstances of preparation indicate
lack of trustworthiness. The term “business” as used in this paragraph includes
business, institution, profession, occupation, and calling of every kind, whether
or not conducted for profit.
Tenn. R. Evid. 803(6). The foregoing exception “rests on the premise that records regularly
kept in the normal course of business are inherently trustworthy and reliable.” Alexander v.
Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App. 1995), perm. app. denied (Tenn. July 3, 1995).
Tennessee Rule of Evidence 902(11) eliminates the need to call the custodian of records as a
trial witness. Tenn. Rule. Evid. 803(6), Advisory Comm’n Comts. Rule 902(11) provides:
The original or a duplicate of a domestic record of regularly conducted activity
that would be admissible under Rule 803(6) if accompanied by an affidavit of
its custodian or other qualified person certifying that the record-
(A) was made at or near the time of the occurrence of the matters set forth by,
or from information transmitted by, a person with knowledge of and a business
duty to record or transmit those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must
provide written notice of that intention to all adverse parties, and must make
the record and declaration available for inspection sufficiently in advance of
their offer into evidence to provide an adverse party with a fair opportunity to
challenge them.
Tenn. R. Evid. 902(11). The appropriate standard of review was recently amended by our
supreme court and is as follows:
The standard of review for rulings on hearsay evidence has multiple
layers. Initially, the trial court must determine whether the statement is
hearsay. If the statement is hearsay, then the trial court must then determine
whether the hearsay statement fits within one of the exceptions. To answer
these questions, the trial court may need to receive evidence and hear
testimony. When the trial court makes factual findings and credibility
determinations in the course of ruling on an evidentiary motion, these factual
and credibility findings are binding on a reviewing court unless the evidence in
35
the record preponderates against them. State v. Gilley, 297 S.W.3d at 759-61.
Once the trial court has made its factual findings, the next questions -- whether
the facts prove that the statement (1) was hearsay and (2) fits under one the
exceptions to the hearsay rule -- are questions of law subject to de novo
review. State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007);
Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005).
If a statement is hearsay, but does not fit one of the exceptions, it is
inadmissible, and the court must exclude the statement. But if a hearsay
statement does fit under one of the exceptions, the trial court may not use the
hearsay rule to suppress the statement. However, the statement may otherwise
run afoul of another rule of evidence. State v. Gilley, 297 S.W.3d at 760-61.
For example, a trial court may decline to admit an excited utterance if it finds
the utterance lacks relevance under Tenn. R. Evid. 401 & 402 or if it finds the
utterance‟s “probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Tenn. R. Evid. 403. If a trial court excludes otherwise
admissible hearsay on the basis of Rule 401, 402, or 403, this determination is
reviewed for abuse of discretion. State v. Harris, 839 S.W.2d 54, 73 (Tenn.
1992); State v. Gilley, 297 S.W.3d at 759-61; see also 1 McCormick § 185, at
1010.
Kendrick v. State, 454 S.W.3d 450, 479-80 (Tenn. 2015).
Dr. Clark testified that he was notified by Metropolis that they had purchased some of
his stolen comic books and that he repurchased the stolen comic books from Metropolis for
$5,000. The State sought to introduce a receipt of this purchase and read into the record an
affidavit from Tamara Cain who stated that she was an accountant at Metropolis and held
that position on the date of Dr. Clark‟s purchase. She further stated:
My responsibilities include all matters of a financial nature including the
maintenance and storage of the business records for [Metropolis].
1. The attached [receipt] was made at or near the time of the activity indicated
within the record by an employee of . . . [Metropolis].
2. The employee had the business duty to record this information and did so.
3. This record and others like it are generated as part of the regularly
conducted activities of our business, and it is our practice to generate such
records.
36
4. This record was retrieved from our records at the request of [the Davidson
County District Attorney].
The affidavit was signed by Ms. Cain. Attached to the affidavit was the receipt, dated June
11, 2010. The receipt showed that $5,000 cash was paid to “Timothy Carter” for “comics
purchases.” Metropolis was not listed on the receipt.
The Defendant argues that the receipt was hearsay and was not properly examined for
its trustworthiness or authenticity and that the trial court should have made further inquiry.
While we agree that the receipt does not identify Metropolis on its face, Ms. Cain, in a sworn
affidavit, testified that it was a business record generated by a Metropolis employee to record
the purchase of comic books. Ms. Cain testified that the record was kept in the course of a
regularly conducted business activity. This is sufficient to show that the receipt was a
business record, inherent of trustworthiness. See Alexander, 903 S.W.2d at 700. The
Defendant made no objection to its trustworthiness or any other aspect of the document. As
such, we conclude that the receipt was properly admitted under the business records
exception pursuant to Rule 803(6) and that Ms. Cain‟s sworn affidavit complied with Rule
902(11).
The Defendant makes a secondary argument that he was prejudiced by admittance of
the receipt because his name was listed on the document. Evidence must be relevant to an
issue that the jury must decide before it may be admitted. State v. Jordan, 325 S.W.1, 84
(Tenn. 2010) (citing Tenn. R. Evid. 401, 402). Evidence that is not relevant to prove some
part of the prosecution‟s case should not be admitted solely to inflame the jury and prejudice
the defendant. Id. Additionally, the probative value of the evidence, in this case the receipt,
must outweigh any unfair prejudicial effect that it may have upon the trier of fact. Id.; see
also Tenn. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice[.]”)
Dr. Clark testified that he bought back his stolen comic books from Metropolis in
New York City. From this testimony, and in light of the other evidence implicating the
Defendant, the jury could infer that it was the Defendant who sold the comic books to
Metropolis after he stole them from Dr. Clark. That the Defendant‟s name was on the
Metropolis receipt merely made this inference more probable. The receipt was not more
prejudicial than probative simply because the Defendant‟s name was on it. The Defendant is
not entitled to relief on this issue.
2. Mr. Carpenter’s Recorded Statement
37
The Defendant next contends that the trial court erred when it admitted Mr.
Carpenter‟s out of court statement, pursuant to Tennessee Rule of Evidence 803(26), made
during a recorded phone call with Detective Eubank, wherein Mr. Carpenter says that the
comic books were procured by “hitting a lick.” He contends that Mr. Carpenter had already
testified about what was contained in the recorded statement, and thus its admission was
redundant and unnecessary. The State responds that Mr. Carpenter originally testified
inconsistently about his statement, but concedes that Mr. Carpenter later acknowledged
making the statement. The State contends, however, that any error regarding the admission
of this statement is harmless.
Tennessee Rule of Evidence 803(26) provides a hearsay exception for a testifying
witness‟s prior inconsistent statement when the statement would be “otherwise admissible
under [Tennessee Rule of Evidence] 613(b)” and satisfies the following conditions:
(A) The declarant must testify at the trial or hearing and be subject to cross-
examination concerning the statement.
(B) The statement must be an audio or video recorded statement, a written
statement signed by the witness, or a statement given under oath.
(C) 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.
Tenn. R. Evid. 803(26). Rule 613(b) provides that “[e]xtrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless and until the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded an opportunity
to interrogate the witness thereon, or the interests of justice otherwise require.” Rule 613
also makes clear that “prior inconsistent statements, and not consistent statements, are within
the ambit of this rule.” The standard of review regarding a trial court‟s decision to admit or
exclude a hearsay statement such as a prior inconsistent statement is de novo. See Kendrick
v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (stating that a trial court‟s decision of whether a
statement is hearsay and whether the statement can be admitted into evidence pursuant to a
hearsay exception is subject to de novo review).
Mr. Carpenter initially testified at trial that he had told Detective Eubank that the
Defendant had gotten the comic books from a “guy that wanted crack” in exchange for the
comic books. When questioned about his statement to Detective Eubank, Mr. Carpenter
denied telling Detective Eubank that the Defendant had gotten the comic books from “hitting
a lick.” During a hearing held outside the presence of the jury, the recording of Mr.
Carpenter‟s phone conversation with Detective Eubank was played aloud. Mr. Carpenter
then resumed testifying, and agreed that the recording had reminded him of his statement to
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Detective Eubank. In the presence of the jury, Mr. Carpenter admitted that the Defendant
had told Mr. Carpenter that he got the comic books after the Defendant “hit a lick.” The
State then sought to introduce the recorded statement and the trial court determined that the
recorded statement was admissible pursuant to Rule 613. The recording of Mr. Carpenter‟s
and Detective Eubank‟s conversation was then played for the jury.
We agree with the Defendant that the introduction of Mr. Carpenter‟s recorded
statement was error, in light of the fact that Mr. Carpenter, after hearing the recording,
corrected his testimony and admitted that he had indicated to Detective Eubank that the
Defendant procured the comic books after “hitting a lick.” At that point, his prior statement
no longer became inconsistent with his testimony and was not properly admitted pursuant to
that hearsay exception. Therefore, the trial court erred when it allowed the statement to be
admitted into evidence and played for the jury.
We must now determine the nature of the trial court‟s error. The Defendant argues
that the evidence was prejudicial because the jury could reference the recording during
deliberations without an explanation regarding the phrase “hit a lick.” The State responds
that any error in admitting Mr. Carpenter‟s statement was harmless because there was ample
evidence connecting the Defendant to the burglary of Dr. Clark‟s home and that the
admission of the recorded statement did not affect the outcome of the trial.
For the purposes of harmless error analysis, Tennessee recognizes three categories of
error:
1) [S]tructural constitutional errors, which compromise the integrity of the
judicial process and require automatic reversal; 2) nonstructural constitutional
errors, which require reversal unless the State proves beyond a reasonable
doubt that the error is harmless; and 3) non-constitutional errors, which do not
require reversal absent proof by the defendant that the error more probably
than not affected the judgment or would result in prejudice to the judicial
process.
State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010) (citing State v. Rodriguez, 254 S.W.3d
361, 371-72 (Tenn. 2008)). The current case falls under the third category.
“A violation of an evidentiary rule may not mandate reversal if the error „was more
probably than not harmless.‟” State v. Martin, 964 S.W.2d 564, 568 (Tenn. 1998) (citing
United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir.1983)). Under Tennessee Rule of
Criminal Procedure 52(a), “[n]o judgment of conviction shall be reversed on appeal except
for errors which affirmatively appear to have affected the result of the trial on its merits.”
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Furthermore, “[t]he greater the amount of evidence of guilt, the heavier the burden on the
defendant to demonstrate that a non-constitutional error involving a substantial right more
probably than not affected the outcome of the trial.” State v. Rodriguez, 254 S.W.3d at 372.
Also, “[t]he improper admission of evidence that is merely cumulative on matters shown by
other admissible evidence may be harmless error.” Newcomb v. Kohler Co., 222 S.W.3d 368,
388 (Tenn. Ct. App. 2006) (citing McClure v. Mexia Indep. Sch. Dist., 750 F.2d 396, 402
(5th Cir.1985)).
We agree with the State that the erroneous introduction of Mr. Carpenter‟s statement
was harmless. The State‟s evidence against the Defendant in this case was strong. The
stolen comic books were found in the Defendant‟s vehicle, which was parked a short drive
from Dr. Clark‟s house. Several witnesses testified that the Defendant or a “Timothy Clark”
attempted to sell or sold the stolen comic books. Detective Eubank testified about his phone
conversation with Mr. Carpenter and stated that Mr. Carpenter told him that the Defendant
had gotten the comic books from “hitting a lick.” The introduction of the recorded phone
conversation between Detective Eubank and Mr. Carpenter did not add any new information
to the case. The recorded conversation merely confirmed that which Detective Eubank and
Mr. Carpenter had testified to. We conclude that the erroneous admission of Mr. Carpenter‟s
statement to police was harmless because the error did not affirmatively affect the outcome
of the trial and because the evidence contained in the statement was cumulative in nature.
The Defendant is not entitled to relief on this issue.
F. Bifurcation
The Defendant next contends that the trial court erred when it declined to bifurcate his
felon in possession of a weapon charge. He contends that that the jury should have first been
asked to consider whether he was in possession of a weapon and, after making that
determination, the State should have presented any evidence as to a prior felony conviction.
The State responds that there is no authority dictating that the jury should have returned a
“partial verdict” on this charge.
We respectfully disagree with the Defendant‟s contention that this charge should have
been bifurcated. In the case of a charge such as felon in possession of a weapon, it is clear
that “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). The State was required to prove that the Defendant was a
prior convicted felon and the jury, in order to convict of this charge, was required to
determine that the Defendant was a prior convicted felon when he possessed the weapon.
We know of no authority, and the Defendant points us to none, that requires the jury to first
hear proof of one element of this charge, that the Defendant possessed a weapon, before
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hearing proof that he was a prior convicted felon. The Defendant is not entitled to relief on
this issue.
G. Witnesses
The Defendant lastly contends that the trial court erred when it restricted the
Defendant‟s ability to call certain witnesses to testify. He also contends that the trial court
“improperly handled” the witnesses that the Defendant intended to call. The State counters
that the trial court properly determined that certain witnesses the Defendant intended to call
had no knowledge of the case and thus could provide no relevant testimony. The State
further contends that the trial court properly restricted the Defendant from questioning other
witnesses about “prejudicial and irrelevant matters.”
Exclusions of evidence may violate the Due Process Clause of the Fourteenth
Amendment of the United States Constitution even if the exclusions comply with rules of
evidence. State v. Flood, 219 S.W.3d 307, 316-17 (Tenn. 2007). Principles of due process
require that a defendant in a criminal trial have the right to present a defense and to offer
testimony. See Chambers v. Mississippi, 410 U.S. 284 (1973); State v. Brown, 29 S.W.3d
427, 431 (Tenn. 2000). In Washington v. Texas, 388 U.S. 14 (1967), the United States
Supreme Court stated:
The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present
the defendant‟s version of the facts as well as the prosecution‟s to the jury so it
may decide where the truth lies. Just as an accused has the right to confront
the prosecution‟s witnesses for the purpose of challenging their testimony, he
has the right to present his own witnesses to establish a defense. This right is a
fundamental element of due process of law.
388 U.S. at 19.
The right to offer testimony, however, is not absolute: “In the exercise of this right,
the accused, as is required of the State, must comply with established rules of procedure and
evidence . . . .” Chambers, 410 U.S. at 302. Rules of procedure and evidence are designed
to assure fairness and reliability in the criminal trial process. Id. So long as the rules of
procedure and evidence are not applied arbitrarily or disproportionately to defeat the
purposes they are designed to serve, these rules do not violate a defendant‟s right to present a
defense. Flood, 219 S.W.3d at 317 (citations omitted). Because “state and federal
rulemakers have broad latitude under the Constitution to establish rules excluding evidence
from criminal trials,” Scheffer, 523 U.S. at 308, “[a]n evidentiary ruling ordinarily does not
41
rise to the level of a constitutional violation.” State v. Rice, 184 S.W.3d 646, 673 (Tenn.
2006).
Initial questions of admissibility of evidence are governed by Tennessee Rules of
Evidence 401 and 403. These rules require that the trial court must first determine whether
the proffered evidence is relevant. Pursuant to Rule 401, evidence is deemed relevant if it
has “„any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.‟” See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995) (quoting
Tenn. R. Evid. 401). In other words, “evidence is relevant if it helps the trier of fact resolve
an issue of fact.” Neil P. Cohen, et al., Tennessee Law of Evidence ' 4.01[4][a] (6th ed.
2011).
We first turn to decide whether the testimony of the proffered witnesses excused by
the trial court were relevant. The trial court excused witnesses, Christine Reeves, Sergeant
Rutzky, and Lieutenant Howey, based on their testimony that they had no knowledge of the
case and had not been involved in its investigation or any other aspect of the case. We
conclude that the trial court did not abuse its discretion when it determined that these
witnesses were not relevant based upon their testimony that they had no knowledge of the
crimes for which the Defendant was being tried.
As to the Defendant‟s contention that the trial court mishandled the Defendant‟s
witnesses that did testify, at several points during his questioning, the Defendant commented
that he did not know what to ask the witnesses because he did not have an attorney, or he
attempted to ask questions about his car being seized. We similarly conclude that the trial
court did not abuse its discretion when it limited the Defendant to questions relevant only to
the facts of the case and the investigation. The trial court correctly prohibited him from
asking questions or commenting about issues about his right to counsel, suppression, or other
issues already resolved by the trial court. The Defendant is not entitled to relief on this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the trial
court‟s judgments.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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