State of Tennessee v. Lymus Levar Brown III ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 13, 2013
STATE OF TENNESSEE v. LYMUS LEVAR BROWN, III
Appeal from the Circuit Court for Haywood County
No. 6710 Clayburn L. Peeples, Judge
No. W2012-02298-CCA-R3-CD - Filed November 26, 2013
A Haywood County jury convicted appellant, Lymus Levar Brown, III, of aggravated
robbery. The trial court sentenced him as a Range III offender to serve thirty years in the
Tennessee Department of Correction, with a release eligibility of eighty-five percent. See
Tenn. Code Ann. § 40-35-501(k)(1) (release eligibility for aggravated robbery conviction).
On appeal, he argues that: (1) the evidence supporting his conviction was insufficient; (2) the
trial court erred by allowing a witness to testify despite a violation of the rule of
sequestration; (3) the trial court erred by not granting him a mistrial or some other remedy
for the State’s failure to provide previously requested discovery; (4) his right to a speedy trial
was violated; (5) the trial court erred by allowing the jury to hear that appellant was a
convicted criminal; (6) the State failed to provide a sufficient chain of custody for the cellular
telephone found at the crime scene; and (7) the trial court erred by considering his prior
convictions during the sentencing hearing despite not having certified copies of said
convictions. Following our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.
Bob C. Hooper, Brownsville, Tennessee, for appellant, Lymus Levar Brown, III.
Robert E. Cooper, Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Jerald Campbell and
Larry Hardister, Assistant District Attorneys General, for appellee, State of Tennessee.
OPINION
I. Facts
This case concerns the January 18, 2011 aggravated robbery of Terica Gause, an
employee of Cash Express in Brownsville, Tennessee. The Haywood County Grand Jury
indicted appellant for the aggravated robbery, and the matter proceeded to trial in December
2011. A mistrial was declared, and the trial was reset for June 2012.
At trial, Terica Gause testified that she was working at Cash Express on January 18,
2011. Tamika Anderson was also working that day, but Ms. Anderson left the store to
purchase supplies prior to the robbery. Ms. Gause said that the store normally opened at 9:30
a.m., but that day, a tall, black man entered the store between 9:00 and 9:30 a.m. He was
wearing a black or blue jacket with white stripes and a black or blue ball cap. When shown
a picture of appellant wearing a jacket, she testified that the jacket appellant was wearing
“kind of look[ed] like” the one worn by the robber. Ms. Gause testified that the man asked
whether the store cashed checks. When she responded affirmatively, the man pulled a gun
and a black bag from his jacket, laid the gun on the counter, and told her to give him all of
the money. Ms. Gause recalled that she was crying and terrified, but the man told her that
he would not hurt her. She said that she pulled the cash drawer out to give him the money.
Ms. Gause stated that she believed there was $525 in the drawer, plus change. She hit the
store’s panic button at some point during the robbery, and after the man left, she locked the
door. At that point, she answered the store’s telephone. The store’s main office had
accessed the store’s security footage when Ms. Gause had pressed the panic button, and they
were calling to verify her safety. The main office had also contacted the police. Ms. Gause
testified that the man had left a cellular telephone on the floor of the store. She said that she
and Ms. Anderson had closed the store the previous night, and they had vacuumed the floors
at that time. There was not a cellular telephone on the floor the night before, and no one else
had entered the store besides her, Ms. Anderson, and the robber.
On cross-examination, she agreed that she had previously said that the robber was
taller than she was. She agreed that she was five feet, four inches tall and that the robber was
between five feet, six inches and five feet, eight inches tall. She further agreed that she never
identified appellant in a lineup.
Tamika Anderson, the store manager of the Cash Express, testified that she was not
at the store during the January 18, 2011 robbery. She explained that she left the store to
purchase supplies, and she took $25 from the cash drawer with her. Ms. Anderson testified
that there would have been $515 in the drawer at that point. She recalled seeing a man
standing outside the Cash Express, whom she described as a black male wearing a blue or
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black jacket with white lettering that was trimmed in royal blue and a dark navy or black
baseball cap. When shown a photograph of appellant wearing a jacket and cap, she said that
the jacket and cap looked similar to those worn by the man outside of the store on the day of
the robbery. Ms. Anderson said that there was not a telephone on the store’s floor the night
before or the morning of the robbery.
Brownsville Police Investigator Patrick Black testified that he investigated the robbery
at the Cash Express store. He arrived at the store within two minutes of receiving the call
about the robbery. Ms. Gause informed him that the robber had left a cellular telephone on
the floor, and he took the telephone into evidence. Investigator Black testified that he
obtained a search warrant for the telephone and had the telephone sent to the Tennessee
Bureau of Investigation (“TBI”) laboratory for “serology and fingerprint identification.”
Pursuant to the search warrant, Investigator Black downloaded photographs from the
telephone, which were entered into evidence. He distributed the photographs to various
agencies in West Tennessee and throughout the patrol division in an attempt to identify the
person in the photographs, and this attempt was successful. Investigator Black also obtained
the number associated with the telephone: 731-879-0475. Investigator Black testified that
information he received from the TBI laboratory led him to obtain a search warrant for
appellant’s DNA. The search warrant was executed, and DNA swabs from appellant were
sent to the TBI for testing.
Investigator Black testified that he arrested appellant at the Bureau of Probation and
Parole in Jackson, Tennessee. Appellant told Investigator Black that he had never been to
Brownsville and did not have anything to do with the robbery. Appellant said that he had
sold his telephone several weeks earlier for forty-five to fifty dollars to a person named
James. When asked whether appellant identified James to him, Investigator Black responded
that appellant had James’s driver’s license.1 Appellant did not indicate why he had James’s
driver’s license. Investigator Black testified that Marquisha Lloyd was with appellant when
he was arrested. He further testified that photographs of Ms. Lloyd were found on the
cellular telephone associated with the robbery. Investigator Black testified that appellant said
that “he had seen himself on the news and was waiting to come in to see his parole officer
about it.” Investigator Black said that the news footage was shown within a few days of the
robbery and that appellant was arrested thirteen days after the robbery. Investigator Black
testified that appellant indicated that he knew he was wanted by the police but did not turn
himself in because he was scared.
1
During a jury-out bench conference, Investigator Black testified that he made the assumption that
the James to whom appellant allegedly sold his telephone and the James on the driver’s license were the same
person, but he said that appellant never actually told him that.
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On cross-examination, Investigator Black said that he believed the photograph
released to the media was one taken from the telephone, not from Cash Express’s
surveillance video. He testified that TBI Agent Brent Booth and a Jackson Police
Department officer followed up on the information from appellant about James. They
learned that the driver’s license was stolen. Investigator Black agreed that Ms. Gause never
positively identified anyone from the lineup he showed her and that he never found the jacket
worn by appellant in the photographs.
Probation and Parole Officer Evelyn Hill testified that appellant had been under her
supervision in January 2011. Appellant met with her at her office on January 11, 2011. As
part of the normal procedure for meetings, he completed an information form that asked for
his telephone number. The number he provided was 731-879-0475. Officer Hill testified
that appellant came to her office on January 31, 2011, “at [her] insistence.” She said that
appellant had contacted her between January 11 and January 31 to tell her about a change to
his address but not a change to his telephone number.
TBI Agent Brent Booth testified that he assisted Investigator Black with his
investigation. His participation included transporting the telephone to the Nashville TBI
laboratory and interviewing appellant. Agent Booth identified his name on the package
containing the telephone and testified that it was the same telephone he had taken to the
laboratory.
TBI Agent Nicholas Christian of the technical services unit testified that he performed
a data retrieval on the telephone related to this case. He explained that he received the
telephone from James Howard Patterson, who in turn had received it from Lelia Jackson.
Agent Christian was responsible for generating the report detailing all of the data on the
telephone, which was received as an exhibit.
TBI Agent Mark Dunlap of the serology and DNA unit testified that he tested the
telephone for DNA. He said that he received the telephone from Lelia Jackson, who worked
in the evidence receiving unit at the laboratory. Agent Dunlap explained that Ms. Jackson
was responsible for assigning an exhibit number to the telephone, and he stated that her
initials were on the package containing the telephone. He swabbed the telephone for DNA
and developed a DNA profile that he entered into a database. From the information gathered
from the database, Agent Dunlap requested a DNA sample from appellant. Once he received
that, he compared the DNA from the telephone with appellant’s DNA. Agent Dunlap
testified that there were at least two people who contributed DNA to what was found on the
phone. Appellant was the major contributor, and an unknown female was the minor
contributor. On cross-examination, Agent Dunlap testified that there was no way to tell how
long the DNA had been on the telephone.
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Shanee Cohen testified that appellant was her ex-boyfriend. They had dated from
March to November 2010. Sometime after the robbery, appellant called her. He told her that
he had been involved in the robbery. Appellant also told her that one of the women working
at the store and the woman’s boyfriend were supposed to be involved. He never said
anything about whether the woman’s boyfriend actually participated in the robbery, but he
said that the woman had gotten scared and left the store prior to the robbery.
On cross-examination, Ms. Cohen agreed that she had one prior conviction for theft.
She also said that she called appellant’s cellular telephone after they had broken up and that
someone other than appellant answered the telephone.
Nimrod White testified that he had been incarcerated with appellant. Appellant told
him that he had been at the Cash Express during the robbery, but appellant did not explicitly
say that he had committed the robbery. Appellant told Mr. White that he had been standing
outside and saw a woman leave the store and walk by him. He then went inside the store.
Appellant indicated to Mr. White that he had a gun with him. Appellant also told Mr. White
about a cellular telephone that was found at the store after the robbery. Appellant said that
the only way the police could connect him to the telephone was through photographs and text
messages sent to or received from a female friend of appellant the day before the robbery
because appellant had told the police that he had sold the telephone. Mr. White testified that
he believed the female friend’s name was “Marquita or something like that” and that her last
name was Lloyd. Mr. White agreed that he had a cellular telephone at the county jail and that
appellant had used his telephone to call Marquisha Lloyd at a number ending in 7704. On
cross-examination, Mr. White agreed that he had several aggravated burglary, burglary, theft,
and vandalism convictions.
The State recalled Investigator Black. He testified that the cellular telephone found
at Cash Express had one contact number with the last digits 7704, which was assigned to the
name “Budda Bay.” There were several text messages from Budda Bay on January 17, 2011,
the day before the robbery. Investigator Black also testified that there were photographs of
Marquisha Lloyd on the telephone, and at least one photograph had been taken the day before
the robbery.
On cross-examination, Investigator Black agreed that some of the photographs on the
telephone appeared to have been taken during a time period in which appellant was
incarcerated. On re-direct examination, Investigator Black testified that the boots worn by
appellant in the courtroom were similar to those in a photograph from the telephone.
Following this testimony, the State rested.
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On behalf of appellant, Janice Webb, a nurse who provided services at the Haywood
County Criminal Justice Complex, testified that she had weighed appellant and taken his
height the morning of her testimony. Appellant was six feet, one inch tall and weighed 204
pounds.
The State called Investigator Black as a rebuttal witness. He testified that the
description of the robber sent to law enforcement agencies after the robbery stated that the
robber was five feet, eleven inches tall. Investigator Black testified that the robber’s
description came from the victim, Terica Gause.
Following the close of proof and deliberations, the jury convicted appellant as
charged. The trial court sentenced him as a Range III, persistent offender to serve thirty
years in the Tennessee Department of Correction, with a release eligibility of eighty-five
percent. See Tenn. Code Ann. § 40-35-501(k)(1) (release eligibility for aggravated robbery
conviction).
II. Analysis
A. Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to support his convictions because
Terica Gause never identified appellant, TBI Agent Dunlap could not say when appellant’s
DNA was left on the telephone, and two of the witnesses whose testimony connected him to
the offense had criminal records. The State responds that jury accredited the witnesses and
that the evidence was sufficient to support appellant’s conviction for aggravated robbery. We
agree with the State.
The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
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On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
To sustain a conviction for aggravated robbery as indicted in this case, the State must
have proven beyond a reasonable doubt that appellant intentionally or knowingly committed
“theft of property from the person of another by violence or putting the person in fear” and
that he accomplished the robbery “with a deadly weapon or by display of any article used or
fashioned to lead the victim to believe it to be a deadly weapon.” Tenn. Code Ann. §§ 39-
13-401(a), -402(a)(1).
Viewed in the light most favorable to the State, the evidence presented at trial reveals
that appellant entered the Cash Express store in Brownsville, Tennessee, on January 18,
2011, prior to the store’s opening. He laid a gun on the counter and demanded money.
Terica Gause, the only store employee present at the time, pulled out the cash drawer, and
appellant took $515-525 from the drawer. Ms. Gause testified that she was terrified during
the robbery. Ms. Gause described the jacket and cap worn by the robber, and Tamika
Anderson, the store manager, testified that she saw a similarly dressed man standing outside
the store when she left that morning. After the robbery, Ms. Gause found a cellular telephone
on the floor of the store. Both Ms. Gause and Ms. Anderson testified that it had not been
there the night before. Appellant’s DNA was found on the telephone, and the number
assigned to the telephone was the same number appellant had used as his contact number
when he met with his probation officer on January 11, 2011. Furthermore, pictures on the
telephone depicted appellant wearing clothing similar to what the robber had worn, and some
of the pictures were of Marquisha Lloyd, a known companion of appellant. Ms. Lloyd was
with appellant when he was arrested, and according to Nimrod White, appellant contacted
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her from jail. Text messages from a number ending in 7704 were found on the telephone
dated the day before the robbery, and Mr. White testified that Ms. Lloyd’s telephone number
ended in 7704. Mr. White also testified that appellant told him about the robbery in a round-
about fashion. In appellant’s conversation with Mr. White, appellant placed himself outside
of the store and inside of the store with a weapon, but he never explicitly said that he was
responsible for the robbery. However, appellant told Shanee Cohen, a former girlfriend, that
he had been involved with the robbery. Thus, appellant was connected to the aggravated
robbery through his own words and through the telephone found at the scene. Regarding
appellant’s challenges to the sufficiency of the evidence, Ms. Gause may have been mistaken
about appellant’s height, but she was terrified and crying during the robbery. Agent Dunlap
could not say when appellant’s DNA was left on the telephone, but he testified that appellant
was the only major contributor to the DNA found thereon. Mr. White and Ms. Cohen both
had prior criminal convictions, which might have weighed against their credibility, but the
jury accredited their testimony, as was their prerogative. We conclude that the proof was
sufficient for any rational jury to find appellant guilty of aggravated robbery beyond a
reasonable doubt.
B. Rule of Sequestration
Appellant complains that the trial court should not have allowed Evelyn Hill to testify
after she had violated the rule of sequestration. See Tenn. R. Evid. 615. The State responds
that the trial court was within its discretion when it allowed her testimony. We agree with
the State.
Tennessee Rule of Evidence 615 provides that a trial court shall exclude witnesses
from the courtroom at the request of a party to an action. “The purpose of the rule is to
prevent one witness from hearing the testimony of another and adjusting his testimony
accordingly.” State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). The text of the rule does not
provide a remedy for a violation; instead, courts have the discretion to fashion a remedy
appropriate to the circumstances. See State v. Black, 75 S.W.3d 422, 424 (Tenn. Crim. App.
2001) (citing State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992)). One possible
sanction is the exclusion of the violating witness’s testimony. See id. “The decision to
exclude or allow the testimony is a matter within the discretion of the trial court, subject to
a showing of abuse and prejudice to the complaining party.” Id. at 424-25 (citing State v.
Chadwick, 750 S.W.2d 161, 166 (Tenn. Crim. App. 1987)). The Advisory Commission
Comments to Rule 615 provide the following guidance: “If a witness inadvertently and
unintentionally hears some trial testimony, the sense of the rule would permit the judge to
allow the witness to testify if fair under the circumstances.” Tenn. R. Evid. 615, Advisory
Comm’n Cmt.
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In this case, the trial transcripts do not clearly reflect that any party requested the
sequestration of the witnesses; however, the motion for new trial transcript includes a
comment by defense counsel that the rule had been called. In addition, when the matter was
discussed at a bench conference, the State responded as if the rule of sequestration had been
properly requested under Rule 615.
During the third witness’s testimony, that of Investigator Black, the State realized that
Evelyn Hill, appellant’s probation officer, was in the courtroom. The State immediately
brought it to the attention of the court, and the court ordered Ms. Hill to leave the courtroom.
Defense counsel objected to Ms. Hill’s testifying later in the trial, and the court overruled the
objection. The court reasoned that nothing said to that point in the trial would affect Ms.
Hill’s testimony. Having reviewed the record, we agree with the trial court. Ms. Hill’s
testimony related to appellant’s contact information and how he came to be at her office the
day of his arrest. The State brought her presence in the courtroom to the court’s attention just
before Investigator Black began discussing appellant’s arrest at Ms. Hill’s office. None of
the prior witnesses’ testimonies had any bearing on that of Ms. Hill. Considering that the
purpose of Rule 615 is to prevent a witness from changing his or her testimony according to
other testimony presented, we conclude that the trial court did not abuse its discretion by
allowing her to testify because none of the testimony presented to that point could have had
any influence on Ms. Hill’s testimony. Furthermore, appellant has made no showing that Ms.
Hill’s violation of the rule was prejudicial to him. See Black, 75 S.W.3d at 424-25.
Therefore, appellant’s argument is without merit.
C. Failure of the State to Provide Discovery
Appellant argues that the trial court should have dismissed the indictment because of
the State’s alleged failure to comply with Tennessee Rule of Criminal Procedure 16, which
governs the discovery process. Specifically, appellant contends that the State failed to
provide the driver’s license issued to a person named James, which appellant had in his
possession when he was arrested.2 The State responds that the trial court did not abuse its
discretion by denying appellant’s motion to dismiss the indictment. Upon review, we
conclude that appellant has waived this issue.
During the trial, appellant moved the court to dismiss the indictment based on the
State’s failure to disclose exculpatory evidence. While not defined as such during the jury-
out bench conference on the issue, the argument advanced by defense counsel was that of a
2
In his brief, appellant also contends that the State failed to provide the defense with appellant’s
oral statement to Investigator Black. However, no objection was made on this basis at trial. Therefore, this
argument is waived. See Tenn. R. App. P. 36(a).
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Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963) (holding that the State’s
suppression of exculpatory evidence is a due process violation). In contrast, a Rule 16
violation does not require that undisclosed evidence be exculpatory, and Rule 16 allows a
court to fashion remedies other than dismissing the indictment. See Tenn. R. Crim. P. 16.
On appeal, appellant advances a Rule 16 argument. “In this jurisdiction, a party is bound by
the ground asserted when making an objection,” and changing theories on appeal constitutes
waiver of the issue. State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994).
Because appellant did not argue below that the State had violated Rule 16 and instead argued
that the State failed to disclose exculpatory evidence, we conclude that appellant has waived
appellate review of this issue.
D. Speedy Trial Violation
Appellant contends that his right to a speedy trial was violated when he was tried
sixteen and one-half months after his arrest. The State responds that the factors of the speedy
trial analysis do not weigh in appellant’s favor. We agree with the State.
The Sixth Amendment to the United States Constitution states that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const.
amend. VI. This provision was made applicable to the states through the Fourteenth
Amendment to the United States Constitution. State v. Simmons, 54 S.W.3d 755, 758 n.4
(2001) (citing Klopfer v. North Carolina, 386 U.S. 213 (1967)). Likewise, the Tennessee
Constitution provides the same guarantee for criminal defendants. See Tenn. Const. art. I,
§ 9. “The speedy trial guarantee is designed to protect the accused from oppressive pre-trial
incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that
the accused’s defense will be impaired by dimming memories or lost evidence.” Simmons,
54 S.W.3d at 758. The right to a speedy trial is triggered when an accused is arrested or
when a grand jury issues a formal accusation or indictment. State v. Hudgins, 188 S.W.3d
663, 667 (Tenn. Crim. App. 2005) (citing State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997)).
We review a trial court’s determination of whether a defendant’s right to a speedy trial was
violated under an abuse of discretion standard. Hudgins, 188 S.W.3d at 667.
In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court set forth four
factors to be considered when reviewing an alleged violation of an accused’s right to a
speedy trial, including the “[l]ength of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” See Simmons, 54 S.W.3d at 759. Our
supreme court has cited with approval the application of the Barker analysis in Tennessee.
Simmons, 54 S.W.3d at 759 (citing State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977)). If,
after applying the Barker balancing test, a court determines that an accused’s right to a
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speedy trial has been violated, “the remedy is reversal of the conviction and dismissal of the
criminal charges.” Id.
Considering first the length of the delay, we note that unless “there is some delay
[that] is presumptively prejudicial, it is not necessary to inquire into the other balancing
factors of the speedy trial analysis.” Id. (citing Barker, 407 U.S. at 530; State v. Wood, 924
S.W.2d 342, 346 (Tenn. 1996)). A delay following a formal accusation must “generally” be
one year or longer to trigger a speedy trial analysis. Id. If this threshold is crossed, a
reviewing court must employ a balancing test to determine the merits of the speedy trial
issue. State v. Bates, 313 S.W.3d 265, 270 (Tenn. Crim. App. 2009).
In this case, appellant was arrested on January 31, 2011, and indicted on May 16,
2011. His case was originally tried on December 1, 2011, but resulted in a mistrial due to
a mistake by the State. The matter was reset for March 29, 2012. On that day, the State
requested an amendment to the indictment, which the trial court granted. The trial court gave
appellant the option to proceed with the trial or reset the trial. Appellant chose to reset the
trial, and based on the parties’ calendars and the court calendars, the case was reset to June
14, 2012. Thus, appellant’s trial was clearly more than a year after his arrest; however, as
his trial was four and one-half months past the year marker, the length of the delay weighs
against the State but not heavily.
Having determined that the length of the delay was sufficient to trigger the speedy trial
analysis, we must now inquire as to the reasons for the delay. Reasons for delay fall within
four identifiable categories: “(1) intentional delay to gain a tactical advantage over the
defense or delay designed to harass the defendant; (2) bureaucratic indifference or
negligence; (3) delay necessary to the fair and effective prosecution of the case; and (4) delay
caused, or acquiesced in, by the defense.” State v. Vickers, 985 S.W.2d 1, 5-6 (Tenn. Crim.
App. 1997) (citing Wood, 924 S.W.2d at 346-47). While the reasonableness of the length of
the delay is commensurate to the complexity and nature of the case, the presumptive
prejudice inherent in the delay intensifies over time. Simmons, 54 S.W.3d at 759 (citing
Doggett v. United States, 505 U.S. 647, 652 (1992); Utley, 956 S.W.2d at 492; Wood, 924
S.W.2d at 346).
Here, the State caused the first delay by its mistake at the first trial, on December 1,
2011, which resulted in a mistrial. However, such a delay was necessary for the fair
prosecution of the case to prevent a miscarriage of justice. The second delay occurred when,
in response to the State’s amendment of the indictment on March 29, 2012, appellant
requested that the case be reset. If he had proceeded to trial on that day, the trial would have
been fourteen months after his arrest. He chose to reset the trial, and because of the
calendars involved, the case could not be tried until June 14, 2012. Thus, the second delay
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was caused by the State’s amending the indictment but was acquiesced to by appellant.
Therefore, the factor does not weigh heavily against the State.
The third factor we must consider is whether appellant asserted his right to a speedy
trial. Simmons, 54 S.W.3d at 760 (citing Barker, 407 U.S. at 531-32). In this case,
appellant’s motion to dismiss based on a speedy trial violation, filed May 11, 2012, was the
first assertion of his right to a speedy trial. Considering that “the timeliness of the demand
for a speedy trial is a factor to be considered when determining whether the defendant has
been denied his speedy trial right,” State v. Harold Wayne Nichols, E2008-00169-CCA-R3-
CD, 2009 WL 2633099 (Tenn. Crim. App. Aug. 27, 2009) (citing Simmons, 54 S.W.3d at
760 (Tenn. 2001); Bishop, 493 S.W.2d at 84), we note that this assertion came fifteen and
one-half months after his arrest and that he was tried approximately one month after the
assertion. The fact of his assertion weighs in his favor, however.
Finally, we analyze the prejudice to appellant caused by the delay. Appellant asserts
that the delay made it more difficult to find James, the person to whom appellant allegedly
sold his cellular telephone. The trial court reasoned that any delay would actually have been
beneficial in this regard. Furthermore, the proof at trial showed that appellant had been using
his telephone the day before the robbery. Appellant has not provided any indication that he
was actually prejudiced by the delay. Taking all of the factors into consideration, we
conclude that appellant’s right to a speedy trial was not violated.
E. Tennessee Rule of Evidence 404(b)
Appellant challenges the trial court’s ruling on his motion in limine to exclude
testimony pursuant to Tennessee Rule of Evidence 404(b) regarding his status as a convicted
criminal, specifically the testimony of probation officer Evelyn Hill and a document from the
probation office containing appellant’s contact information.3 The State responds that the trial
court did not abuse its discretion in admitting the evidence. We agree with the State.
Tennessee Rule of Evidence 404(b) provides that evidence of other crimes, wrongs,
or acts is generally not admissible “to prove the character of a person in order to show action
in conformity with the character trait.” However, evidence of other crimes, wrongs or acts
may be admissible where it is probative of a purpose other than the defendant’s propensity.
3
Both appellant and the State have treated this matter as a Rule 404(b) issue. However, if it had
been addressed as a Tennessee Rule of Evidence 401 and 403 issue instead, the evidence would nonetheless
have been admissible as the probative value was not substantially outweighed by the danger of unfair
prejudice. Regardless, any error in the admission of this evidence is harmless in light of the overwhelming
evidence of appellant’s guilt. See Tenn. R. App. P. 36(b).
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Tenn. R. Evid. 404(b). While Rule 404(b) does not enumerate the exceptions under which
evidence of prior crimes, wrongs, or acts may be admitted, our courts have held that such
evidence may be admissible to show another purpose such as motive, intent, guilty
knowledge, identity of the defendant, absence of mistake, or the existence of a common
scheme. See, e.g., State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004); Collard v. State, 526
S.W.2d 112, 114 (Tenn. 1975). To admit such evidence, Rule 404(b) specifies the following:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record the
material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and
convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
Should a review of the record indicate that the trial court substantially complied with
the requirements of Rule 404(b), the trial court’s admission of the challenged evidence will
remain undisturbed absent an abuse of discretion. State v. James, 81 S.W.3d 751, 759 (Tenn.
2002); State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). “An abuse of discretion occurs
when the trial court applies an incorrect legal standard or reaches a conclusion that is
‘illogical or unreasonable and causes an injustice to the party complaining.’” State v. Dotson,
254 S.W.3d 378, 392 (Tenn. 2008) (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006)).
Appellant moved the court to exclude Ms. Hill’s testimony because, as he reasoned,
evidence that appellant had been on parole was equivalent to evidence of prior crimes,
wrongs, or acts. In a jury-out hearing prior to the first trial in December 2011, the trial court
ruled that “the probative value of the evidence outweighed the prejudicial value.” When
appellant renewed his motion to exclude the evidence prior to the second trial, the trial court
determined that Ms. Hill’s testimony and the document accompanying her testimony were
highly probative of appellant’s identity as the perpetrator. In addition, the trial court gave
the jury an instruction in its jury charge to disregard the information that appellant had been
on parole, stating that it should not be considered by the jury for any purpose.
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Our review of the record indicates that the trial court substantially complied with the
dictates of Rule 404(b). The trial court determined that the evidence was admissible to prove
identity, which is a recognized exception to the general exclusion of evidence of prior crimes,
wrongs, or acts. See Berry, 141 S.W.3d at 582. Furthermore, the trial court ruled that the
probative value was not outweighed by the danger of unfair prejudice, and the trial court
gave a limiting instruction to the jury for it not to consider that appellant had been on parole.
Therefore, we conclude that the trial court did not abuse its discretion in admitting the
evidence.
F. Chain of Custody
Appellant argues that the State did not establish a sufficient chain of custody for the
cellular telephone found at the crime scene because TBI employee Lelia Jackson did not
testify and because Agent Dunlap did not state where in the chain of custody he received the
telephone. The State responds that it sufficiently established the chain of custody so as to
“reasonably assure the identity of the evidence and its integrity.”
The determination of whether the State has properly established the chain of custody
of evidence is a matter left to the sound discretion of the trial court and will not be reversed
absent an abuse of that discretion. See State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008).
Tennessee Rule of Evidence 901(a) provides: “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
the court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” As our supreme court has held, “as a condition precedent to the
introduction of tangible evidence, a witness must be able to identify the evidence or establish
an unbroken chain of custody.” Cannon, 254 S.W.3d at 296 (quoting State v. Scott, 33
S.W.3d 746, 760 (Tenn. 2000)). “The purpose of the chain of custody is to ‘demonstrate that
there has been no tampering, loss, substitution, or mistake with respect to the evidence.’”
Scott, 33 S.W.3d at 760 (quoting State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App.
1993)). The State should sufficiently prove each link in the chain of custody, but the State
is not required to prove the identity of tangible evidence beyond all possibility of doubt nor
must it exclude every possibility of tampering. Cannon, 254 S.W.3d at 296. In addition, the
State’s failure to call as a witness each person who handled an item does not necessarily
preclude the admission of the evidence. Id. “Accordingly, when the facts and circumstances
that surround tangible evidence reasonably establish the identity and integrity of the
evidence, the trial court should admit the item into evidence.” Id. The trial court should not
admit an item into evidence if the State fails to provide sufficient proof of the chain of
custody, unless the identity and integrity of the item can be established by other means. Id.
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In this case, Investigator Black testified that he retrieved the telephone from the crime
scene. Agent Booth testified that he took the telephone to the TBI laboratory, and he further
testified that the telephone in the courtroom was the same one he had taken to the laboratory.
Agent Christianson testified that he received the telephone from Agent Patterson, who had
received it from Lelia Jackson, a TBI employee. Agent Christianson said that he returned
the telephone to Ms. Jackson. Agent Dunlap testified that he recognized Ms. Jackson’s
initials on the telephone’s packaging. He also explained that Ms. Jackson worked in the
evidence receiving unit and was responsible for assigning an exhibit number to the evidence.
Ms. Jackson did not testify, and Agent Dunlap did not definitively state that he received the
telephone from Ms. Jackson. The State is not required to present testimony from every
person in the chain, and it does not have to prove the identity of the evidence beyond all
possibility of doubt. Cannon, 254 S.W.3d at 296. Here, the State presented evidence
regarding each link in the chain of custody, even though it did not present testimony from
each person in the chain. In addition, there was testimony that the telephone admitted as an
exhibit was the same one found at the crime scene. Therefore, we conclude that the State
sufficiently established the chain of custody.
G. Certified Copies of Convictions
Appellant argues that the trial court erred by considering uncertified copies of his prior
convictions during the sentencing hearing via the presentence report. However, as the State
responds, appellant did not object to the admission of the presentence report during the
sentencing hearing. Therefore, he has failed to preserve this issue for appellate review. See
Tenn. R. App. P. 36(a).
Furthermore, appellant has not argued specifically for plain error review. Even if we
construed his appellate argument as a request for plain error review, he has not established
the five factors necessary for this court to find plain error. Our supreme court formally
adopted this court’s Adkisson test for reviewing claims of plain error:
The Court of Criminal Appeals has developed five factors to consider when
deciding whether an error constitutes “plain error” in the absence of an
objection at trial: “(a) the record must clearly establish what occurred in the
trial court; (b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is ‘necessary to do substantial justice.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). To rise to the level of “plain error,” an error must [have
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been] of such a great magnitude that it probably changed the outcome of the trial.” Adkisson,
899 S.W.2d at 642. All five factors must be established by the record before a court will find
plain error. Smith, 24 S.W.3d at 282. Complete consideration of all the factors is not
necessary when clearly at least one of the factors cannot be established by the record.
In this case, appellant has failed to establish that a clear and unequivocal rule of law
has been breached. Reliable hearsay is admissible with certain qualifications during
sentencing hearings, see Tenn. Code Ann. § 40-35-209(b), and “[t]his court has consistently
held the presentence report to be reliable hearsay,” State v. Adams, 45 S.W.2d 46, 59 (Tenn.
Crim. App. 2000) (citing State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997)).
“Furthermore, this court has held that certified copies of convictions are not necessary to
prove a prior criminal history; thus, courts can rely upon the presentence report.” Id. (citing
State v. Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993)); see also State v. Tyrone
Ralph Wright, No. M2010-02096-CCA-R3-CD, 2012 WL 601332, at *18-19 (Tenn. Crim.
App. Feb. 23, 2012), perm. app. denied (Tenn. June 25, 2012) (concluding that the trial court
properly relied on presentence report and preparer’s testimony when the State did not present
certified copies of two of the defendant’s six prior convictions). Thus, because one of the
five factors necessary to establish plain error is absent, appellant is without relief as to this
issue.
CONCLUSION
Based on our review of the record, the parties’ briefs, and the applicable law, we
affirm the judgment of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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