State v. Charles Clay Young ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1997 SESSION
August 15, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 01C01-9605-CC-00195
Appellee, * WHITE COUNTY
VS. * Hon. Leon Burns, Jr., Judge
CHARLES CLAY YOUNG, * (Solicitation to Commit First Degree
Murder--Two Counts)
Appellant. *
For Appellant: For Appellee:
John E. Herbison Charles W. Burson
2016 Eight Avenue South Attorney General & Reporter
Nashville, TN 37204
(on appeal) Ruth A. Thompson
Counsel for the State
David N. Brady 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
215 Reagan Street
Cookeville, TN 38501 Anthony Craighead
and Assistant District Attorney
Joe L. Finley, Jr. 145 South Jefferson Avenue
Assistant Public Defender Cookeville, TN 38501
215 Reagan Street
Cookeville, TN 38501
(at trial)
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Charles Clay Young, was convicted of two counts of
solicitation to commit first degree murder, a Class B felony. The trial court imposed
two Range I sentences of ten-year terms. The sentences are consecutive to each
other and consecutive to an unexpired sentence for arson.
In this appeal of right, the defendant presents the following issues for
our review:
(1) whether the state proved venue;
(2) whether the state failed to properly authenticate
audio tapes played for the jury, and if so, whether the
admission of the tapes qualified as plain error;
(3) whether failure of the state to present originals of the
life insurance policies qualified as plain error;
(4) whether the admission of his prior convictions for
arson and bail jumping constituted plain error; and
(5) whether the sentences were excessive.
We affirm the judgment of the trial court.
In September of 1993, the defendant arrived at the home of his adult
nephew, Ricky Young (Ricky), and asked for help in finding a .222 rifle. On the next
day, the defendant told Ricky that he was having problems with his ex-wife, Sylvia
Jean Young (Jean), from whom he had recently been divorced. He explained that
the settlement awarded her the majority of the property and the custody and support
of their small child. The defendant, who had a $5,000 life insurance policy on Jean,
asked Ricky if he or someone else he knew would be willing to kill Jean for $2,500.
Later that same evening, the defendant returned to Ricky's house to inform him that
he was also the beneficiary of a $20,000 insurance policy on his older son's life and
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that he would be willing to pay Ricky $15,000 of the death benefits. In order to
collect the death benefits from this policy, Randy, who was the product of a marriage
prior to that of the defendant and Jean Young, would also have to be killed.
Afterward, the defendant drove Ricky to a residence in the country where Jean
dropped off their child for visitation every Friday at 6:00 a.m. The defendant
suggested that Ricky should hide behind a tree by 5:45 a.m. and then shoot Jean
Young as she walked around the car to remove her child from the car seat. He
reasoned that it did not matter what the child saw because he "don't know nothing,
no way." The defendant suggested that Ricky could escape on foot through the
woods in order to avoid detection.
Ricky Young, who was on probation for arson at the time of his
encounter with the defendant, informed officers with the White County Sheriff's
Department of the proposal. At their request, he agreed to wear a tape recorder,
transmitter, and microphone to an arranged meeting with the defendant. Deputies,
approximately one-fourth of a mile away, monitored. During a meeting at the
"county house" in White County, the defendant and Ricky Young discussed plans
for the two killings over a two to three hour interval. The defendant wanted Jean
shot the following Friday morning as she dropped off their child. Randy was to be
killed about a week later in a planned "accident." The defendant gave Ricky a
photograph of Jean Young and provided him with her license plate number.
When Ricky Young made inquiry about the method of payment, the
defendant assured him that he would be paid as soon as the insurance benefits
were collected. The defendant gave Ricky the title to his van as collateral.
I
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The defendant initially claims that the state did not prove venue by a
preponderance of the evidence. Article I, § 9 of the Tennessee Constitution
provides that in all criminal prosecutions by indictment or presentment, the accused
has a right to a trial by an impartial jury chosen from the county in which the crime
was committed. See also Tenn. R. Crim. P. 18. Thus founded in the constitution,
proof of venue is necessary to establish jurisdiction. Hopson v. State, 299 S.W.2d
11,14 (Tenn. 1957). Venue may be shown only by a preponderance of the
evidence. The burden is on the state. Harvey v. State, 376 S.W.2d 497, 498 (Tenn.
1964); Hooper v. State, 326 S.W.2d 448, 451 (Tenn. 1959). Slight evidence,
including circumstantial evidence, will be sufficient if the evidence is uncontradicted.
State v. Bennett, 549 S.W.2d 949 (Tenn. 1977).
Here, Ricky Young testified that he met with the defendant on Old
County House Road in White County where the two planned the murders of Jean
and Randy Young. A White County deputy testified that he saw the defendant with
Ricky within the White County boundaries just as the two men concluded their
conversation. Because the defendant did not offer any proof to contest this
evidence, the state, in our view, was successful in establishing venue by a
preponderance of the evidence.
II
Next, the defendant claims that it was error for the trial court to allow
audio tapes of his conversation with Ricky because the police officer did not identify
the defendant's voice. At trial, the defendant objected to the admission of the tapes
for failure of the state to lay a proper foundation. In this appeal, the defendant
argues that admission was improper because the police officer never identified the
defendant's voice as being the voice on the tape. The state presented two sets of
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tapes into evidence, one of which was the original and the other of which had been
electronically enhanced by the Tennessee Bureau of Investigation. The officer who
monitored the conversation identified the enhanced tapes, testifying that they were a
recording of the conversation he had overheard between the defendant and Ricky
Young. The defense objected, arguing that the enhanced versions "aren't the
tapes." When the original tapes were offered as proof, the defense claimed the
chain of custody had not been adequately established. Later, during his cross-
examination by the state, the defendant acknowledged his own voice on the tape.
Unfortunately, the defense failed to raise the issue in the motion for a
new trial. "[I]n all cases tried by a jury, no issue presented for review [to an
appellate court] shall be predicated upon error in the admission or exclusion of
evidence .... unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived." Tenn. R. App. P. 3(e). Thus, the
issue has been waived. Had we otherwise reached the merits of the claim,
however, we would have ruled in favor of the state.
In order to lay the proper foundation for the entry of audio tapes, the
moving party must establish either an unbroken chain of custody or positively
identify the very evidence presented. Bolen v. State, 544 S.W.2d 918, 920 (Tenn.
Crim. App. 1976). Only one of the conditions must be met. Id. In this case, Officer
Goff identified the first set of tapes as those that were enhanced by the TBI. He
further stated that he had listened to the enhanced tapes and they were an accurate
reflection of the conversation he recorded on the day in question. Thus, the tapes
had been positively identified by Officer Goff as being an accurate reflection of the
conversation he monitored; it is not, therefore, necessary to establish an unbroken
chain of custody.
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In this appeal, the defendant also argues that the tapes should not
have been admitted because Officer Goff failed to positively identify the voice on the
tape as that of the defendant. In support of his argument, he cites to State v. Jones,
598 S.W.2d 209, 222 (Tenn. 1980), asserting that the holding requires a witness to
identify the voices before the tape recording is admitted into evidence. We
disagree with the defendant's interpretation of the rule in Jones. The case provides
in pertinent part as follows:
[W]e hold that the tape recordings and compared
transcripts are admissible and may be presented in
evidence by any witness who was present during their
recording or who monitored the conversations, if he was
so situated and circumstanced that he was in a position
to identify the declarant with certainty, and provided his
testimony in whole, or in part, comports with other rules
of evidence.
Id. at 223.
Here, Ricky Young had already testified that he met with the defendant
on September 27, 1993 at Old County House Road. He stated that at that time he
wore a microphone, transmitter and tape recorder for the purpose of taping the
defendant. He recalled that he spoke to the defendant from two to three hours.
Ricky testified that he returned to where Officer Goff and the other officers were
monitoring the conversation as soon as the defendant left.
Officer Goff testified that he was present when Ricky Young was
equipped with recording equipment for the purpose of recording a conversation
between them. He stated that he recorded a leader on the tape, which included the
date, place and purpose of the recording, before Ricky left to meet with the
defendant. Officer Goff then parked about one quarter of a mile up the road from
the meeting point. From that point, he monitored the conversation between his
informant and the defendant. As the meeting drew to a close, the officers drove by
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so as to observe Ricky sitting in the defendant's van. Later, the defendant
acknowledged that it was his voice recorded on the tape.
Rule 901(a) of the Tennessee Rules of Evidence requires tangible
evidence to be authenticated and further provides as follows:
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.
Jones, the opinion relied upon by the defendant, preceded the adoption of this rule
by almost ten years. While our supreme court has since cited Jones as a guideline
for the admission of tapes, none of our courts have held that the procedure
approved in Jones is the exclusive method for the authentication of audio tapes.
See State v. Smith, 868 S.W.2d 561, 577 (Tenn. 1993) (relying on Jones to uphold
admission of audio tapes).
Identification of an object need not be absolutely certain. State v.
Woods, 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990); State v. Ferguson, 741
S.W.2d 125, 127 (Tenn. Crim. App. 1987). Whether tangible evidence has been
properly authenticated is left to the discretion of the trial court. Tenn. R. Evid.
901(a); see also Ritter v. State, 462 S.W.2d 247 (Tenn. 1970). The trial court's
decision will not be disturbed absent a clearly mistaken exercise of that discretion.
State v. Baldwin, 867 S.W.2d 358, 361 (Tenn. Crim. App. 1993). In this case, there
was substantial evidence that the tapes were of the recorded conversation between
the defendant and Ricky Young. Under these circumstances, the trial court was
correct in finding that the tapes had been sufficiently identified for the purpose of
admission into evidence.
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III
The defendant argues that the state violated the best evidence rule
when it failed to present the original insurance policies, instead offering oral
testimony and a report. We disagree.
Tenn. R. Evid. 1002 provides as follows:
To prove the content of a writing, recording, or
photograph, the original writing, recording or photograph
is required, except as otherwise provided in these rules
or by Act of Congress or the Tennessee Legislature.
Tenn. R. Evid. 1004 offers several exceptions to the rule; subpart 4 is pertinent to
this case:
The original is not required, and other evidence of a
writing, recording or photograph is admissible if--
(1) Originals Lost or Destroyed. All originals are lost or
destroyed, unless the proponent lost or destroyed them
in bad faith; or
(2) Original Not Obtainable. No original can be obtained
by any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when
an original was under the control of the party against
whom offered, that party was put on notice by the
pleadings or otherwise that the contents would be a
subject of proof at the hearing but does not produce the
original at the hearing; or
(4) Collateral matters. The writing, recording, or
photograph is not closely related to a controlling issue.
Tennessee Law of Evidence, Neil P. Cohen, et al. (3d ed. 1995), provides: "[T]he
best evidence rule is inapplicable if the writing, recording or photograph is not
closely related to a controlling issue. The facts of each case are critical in assessing
whether a writing is collateral." Id. § 1004.2.
At trial, J. R. Simmons, a marketing supervisor at Commonwealth Life
Insurance Company, testified about the status of two life insurance policies as of
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October 1, 1993. He stated that Jean Young's $5,000 policy lapsed in June, 1993;
but that on the first of October of that year, there was residual value in the policy
which would have resulted in payment of the death benefit less only the unpaid
premiums. Simmons also testified that the defendant purchased a $50,000 life
insurance policy on his son, Randy, which was in full force and effect on October 1,
1993. He acknowledged that the defendant was the beneficiary of both policies.
After Simmons testified, the court admitted as evidence two company
reports showing the status and history of the policies. Because the defendant did
not object to the evidence and the issue was not raised in the motion for new trial,
the issue is waived. Tenn. R. App. P. 3(e); State v. Harrington, 627 S.W.2d 345
(Tenn. 1981).
In any event, the insurance policies, in our view, qualified as collateral
matters and within the exception to the rule. While the evidence indicated a motive
for the murders, the policies were not essential elements of the offenses. Moreover,
there was no material question on the content of the life insurance contracts. The
more important determination was whether the defendant was the beneficiary and
whether the policy was in force on October 1, 1993. Because the status of the
policy as to these factors could not be determined from the original policies, we
believe the reports offered qualified as "collateral" and the premium payment status
was the most important question. Because there was no error, any analysis under
the plain error doctrine, as the defendant suggests, would not be helpful.
IV
As his fourth issue, the defendant claims that the trial court committed
error when it allowed in evidence of two of the defendant's past crimes: arson and
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bail jumping. Because the defendant failed to raise this issue in his motion for new
trial, the issue has been waived. Our analysis must, therefore, be predicated upon
the assertion of plain error. See Tenn. R. Crim. P. 52(b).
Tennessee Rule of Evidence 609 allows for the admission of a past
conviction for a crime for the purpose of attacking a witness's credibility. There are
several criteria that must be met before the evidence can be produced. The crime
must either be a felony or a misdemeanor showing dishonesty or false statement.
Tenn. R. Evid. 609(a)(2). When the witness is the defendant in a criminal
prosecution, the state must give advanced written notice. Id., 609(a)(3). The
probative value must outweigh the prejudicial effect. Id. The trial court shall rule on
the propriety of such evidence before the witness takes the stand to testify. Id.
Here, the trial court did not rule on the admissibility of such evidence until after the
defendant had taken the stand. The defense lodged an objection based on
irrelevancy and prejudicial effect, but did not object to the procedure used by the
trial court.
In our view, the defendant's conviction for bail jumping would be
admissible. The defendant was released on bail upon his promise to return to court
at a specific time. That he failed to appear as represented reflects upon his
credibility.
Evidence of the defendant's past arson conviction was prejudicial.
There were no specific facts presented to show the relevance of the arson
conviction as to the defendant's credibility. Even so, the evidence of the defendant's
guilt, both direct and circumstantial, was overwhelming. The admission of the prior
arson conviction did not, in our view, have any effect upon the verdicts.
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V
Next, the defendant claims the length of his sentences was excessive
and should not have been ordered to be served consecutively. When there is a
challenge to the length, range, or manner of service of a sentence, it is the duty of
this court to conduct a de novo review with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption is "conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and
circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v.
Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission Comments
provide that the burden is on the defendant to show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors;
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(6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-
102, -103, and -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
At the time of this offense, the presumptive sentence was the
minimum in the range absent enhancement or mitigating factors. Tenn. Code Ann.
§ 40-35-210. Should the trial court find mitigating and enhancement factors, it must
start at the minimum sentence in the range and enhance the sentence based upon
any applicable enhancement factors, then reduce the sentence based upon any
appropriate mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight given
to each factor is within the trial court's discretion provided that the record supports
its findings and it complies with the Sentencing Act. See Ashby, 823 S.W.2d at 169.
The trial court, however, should make specific findings on the record which indicate
his application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -
210.
Prior to the enactment of the Criminal Sentencing Reform Act of 1989,
the limited classifications for the imposition of consecutive sentences were set out in
Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court
ruled that aggravating circumstances must be present before placement in any one
of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the
court established an additional category for those defendants convicted of two or
more statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution: "[C]onsecutive sentences should not routinely be
imposed . . . and . . . the aggregate maximum of consecutive terms must be
reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at
230. The Sentencing Commission Comments adopted the cautionary language.
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Tenn. Code Ann. § 40-35-115.
The 1989 Act is, in essence, the codification of the holdings in Gray
and Taylor; consecutive sentences may be imposed in the discretion of the trial
court only upon a determination that one or more of the following criteria1 exist:
(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;
(2) The defendant is an offender whose record of
criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant's undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense
committed while on probation;
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before consecutive sentencing
1
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felon y convictions , m ay enh anc e the sen tenc e ran ge b ut is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Com mission Comm ents.
13
could be imposed upon the dangerous offender, as now defined by subsection
(b)(4) in the statute, other conditions must be present: (a) that the crimes involved
aggravating circumstances; (b) that consecutive sentences are a necessary means
to protect the public from the defendant; and (c) that the term reasonably relates to
the severity of the offenses.
More recently, in State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.
1995), our high court reaffirmed those principles, holding that consecutive
sentences cannot be required of the dangerous offender "unless the terms
reasonably relate[] to the severity of the offenses committed and are necessary in
order to protect the public (society) from further criminal acts by those persons who
resort to aggravated criminal conduct." The Wilkerson decision, which modified
somewhat the strict factual guidelines for consecutive sentencing adopted in State v.
Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a
"human process that neither can nor should be reduced to a set of fixed and
mechanical rules." Wilkerson, 905 S.W.2d at 938.
The trial court found no mitigating factors applicable. Because these
offenses were committed while the defendant was on probation for another crime,
the trial court observed that the defendant had a prior record of felony convictions,
arson and bail jumping, and had been unwilling to comply with conditions involving
release in the community. See Tenn. Code Ann. § 40-35-114(1), (8). Because
each of these enhancement factors were applicable, mid-range sentences of ten
years for each of the Class B felonies were appropriate.
Also, the trial court found that the defendant was a dangerous offender
and on probation at the time the crimes were committed. After careful review, we
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have determined that was a proper basis for the consecutive sentencing. The trial
court found that defendant's crimes were particularly egregious because they were
against his own family. It found that the defendant2 had maintained a willingness
and likelihood to kill the victims. In our view, a lengthy incarceration was warranted
to protect society.
The defendant also complains that the trial court erred by ordering the
two ten-year sentences to be served consecutively to a prior unserved sentence.
The trial court found that the defendant was on probation when he committed the
solicitations. Rule 32(c)(3), Tenn. R. Crim. P., makes consecutive sentences
mandatory if the defendant is convicted of a crime committed while on parole, bail,
or on escape; it does not make consecutive sentences mandatory if the crime is
committed while the defendant is on probation. There is, however, a statutory basis
for ordering consecutive sentencing in this situation:
[I]n any case of revocation of suspension [of probation]
on account of conduct by the defendant which has
resulted in a judgment of conviction against him during
his period of probation, the trial judge may order that the
term of imprisonment imposed by the original judgment
be served consecutively to any sentence which was
imposed upon such conviction.
Tenn. Code Ann. § 40-35-310.
Consecutive sentences may be imposed when the "defendant is
sentenced for an offense committed while on probation." Tenn. Code Ann. § 40-35-
115(b)(6). See State v. Moore, 942 S.W.2d 570 (Tenn. Crim. App. 1996) (ruling that
both of these statutory provisions allow for consecutive service of the prior
unexpired sentence).
2
At the sentencing hearing the state presented part of the defendant's conversation with Ricky
Young. This part had been redacted when played for the jury. In this dialogue, the defendant brags
that he assaulted, with the intention to kill, another ex-wife as well as several other women.
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We cannot conclude the trial court erred by ordering the prior
unexpired sentence to be served consecutively. We do, however, conclude that the
aggregate length of all three sentences is appropriate under the Wilkerson
requirements. Thus, this issue is without merit.
Accordingly, the judgment of the trial court is affirmed.
Gary R. Wade, Judge
CONCUR:
David G. Hayes, Judge
Curwood Witt, Judge
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