State of Tennessee v. David Wayne Eady ( 2022 )

10/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 12, 2022 Session Heard at Austin Peay State University
STATE OF TENNESSEE v. DAVID WAYNE EADY
Appeal from the Criminal Court for Davidson County
No. 2018-B-952 Cheryl A. Blackburn, Judge
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No. M2021-00388-CCA-R3-CD
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CAMILLE R. MCMULLEN, J., concurring and dissenting, in part.
For the reasons that follow, I am compelled to dissent from the section of the
majority opinion affirming the decision of the trial court to deny severance of the offenses
in this case. I agree that the trial court correctly determined that permissible joinder,
pursuant to Rule 8(b)(2), was proper because of the similar nature of the crimes alleged in
this case. In these circumstances, a defendant has an absolute right under Rule 14(b)(1) to
have offenses separately tried unless the prosecution shows (1) that the offenses are part of
a common scheme or plan, and (2) evidence of each crime would be admissible in the trial
of the others. State v. Garrett, 331 S.W.3d 392, 401 (Tenn. 2011); State v. Toliver, 117
S.W.3d 216, 228 (Tenn. 2003); see also State v. Moore, 6 S.W.3d 235, 239 n. 7 (Tenn.
1999) (“[A] common scheme or plan for severance purposes is the same as a common
scheme or plan for evidentiary purposes.”). To justify consolidation here, the State relied
upon the second category of common scheme or plan evidence, that each of the offenses
committed and to be joined were part of a larger, continuing plan or conspiracy. State v.
Garrett, 331 S.W.3d at 404 (observing that there are three types of common scheme or plan
evidence: (1) offenses that reveal a distinctive design or are so similar as to constitute
signature crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and
(3) offenses that are all part of the same criminal transaction) (internal citations and
quotations omitted). Because there was no proof that the offenses were part of a larger,
continuing plan, I would have concluded that the trial court erred in denying the severance
request under Rule 14(b)(1). Garrett, 331 S.W.3d at 403 (the prosecution bears the burden
of producing evidence to establish that consolidation is proper).
Without repeating much of the same applicable legal framework as the majority, I
will emphasize only the relevant portions of the law upon which we disagree as to
interpretation. In State v. Adams, a mandatory joinder and consolidation case, the State
argued that because a felony-murder and two counts of aggravated robbery were committed
with the same “intent” that is “to obtain money with which to purchase drugs, they
‘constitute a common scheme or plan.’” 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992).
In rejecting this argument, this court stated, “the suggestion of shared motivation for the
two otherwise separate crimes to be insufficient under 8(b) and 14(b)(1) to establish a
‘common scheme or plan.’” Id. “[A] larger, continuing plan or conspiracy ‘involves not
the similarity between the crimes, but [rather] the common goal or purpose at which they
are directed.’” State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting State v. Hoyt, 928
S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by Spicer, 12
S.W.3d at 447); see State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993)
(rejecting the State’s contention that the defendant’s sex crimes against different victims
in the same household can be consolidated based upon a common goal of achieving sexual
gratification under the larger, continuing plan or conspiracy category). Hallock attempted
to dispel any misapprehension about the larger, continuing plan category of common
scheme or plan evidence with the following:
The fallacy inherent in this thinking is easily exposed by the following
example: X is on trial for three counts of burglary, each involving a different
building, a different form of entry, and a different day. His overall purpose,
however, was to acquire money for college. Clearly, without more, X is
entitled to severance under Rule 14(b)(1).
Hallock, 875 S.W.2d at 290; see also State v. Raymond Griffin, No. W2001-01332-CCA-
R3-CD, 2002 WL 1482689, at *7 (Tenn. Crim. App. Mar. 15, 2002) (rejecting State’s
argument that defendant’s actions in “driving around the City of Memphis at night in order
to target particular individuals” constituted larger, continuing plan for purposes of common
scheme or plan prong of joinder because, other than the perpetration of multiple offenses,
there was no unifying common goal or purpose which connected the individual robberies
and accompanying crimes).
The larger, continuing plan or conspiracy category requires the State to put forth
proof of “‘a working plan, operating towards the future with such force as to make probable
the crime for which the defendant is on trial.’” State v. Prentice, 113 S.W.3d 326, 331
(Tenn. Crim. App. 2001) (quoting Hoyt, 928 S.W.2d at 943) (rejecting the State’s
suggestion that shared motivation of defendant to terrorize victim was sufficient grounds
for joinder of offenses as part of larger, continuing plan). “Each of the consolidated
offenses must serve to further the goal or plan in existence at the time of the commission
of the first offenses.” State v. Timothy Leron Brown, No. M2017-00904-CCA-R3-CD,
2019 WL 1514551, at *28 (Tenn. Crim. App. Apr. 8, 2019), perm. app. denied (Tenn. Aug.
15, 2019); State v. Jawaune Massey, No. E2013-01047-CCA-R3-CD, 2014 WL 3661490,
at *32 (Tenn. Crim. App. July 23, 2014). “The larger continuing plan category
encompasses groups or sequences, or crimes committed in order to achieve a common
ultimate goal or purpose.” Hallock, 875 S.W.2d at 290. This is the reason the rulings
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in Hallock and Adams, concerning the larger, continuing plan category have typically been
restricted to cases involving crime sprees, where the defendant commits several crimes
quite closely in time to one another. See State v. Allen Prentice Blye, No. E2001-01375-
CCA-R3-CD, 2002 WL 31487524, at *6 (Tenn. Crim. App. Nov.1, 2002) (citing State v.
Hall, 976 S.W.2d 121, 146 (Tenn. 1998) (noting also that “[t]he fact that a defendant has a
common goal in committing crimes or that most of the crimes were committed in the same
neighborhood does not mean that proof of the individual, disparate crimes will reveal a
larger, continuing plan”)). Where the State has not established evidence of a “‘working
plan’ whereby the subsequent offenses are predictable or probable from the defendant’s
determination to commit the initial offenses (or vice versa),” the subsequent offenses
cannot constitute parts of a larger, continuing plan. Id. at *31.
Naturally, if the trial court finds that no common scheme or plan existed, then it is
unnecessary to consider the second prong of the test. See Raymond Griffin, 2002 WL
1482689, at *7. When common scheme or plan is found by the trial court, the next step in
the analysis is to consider “whether evidence of one offense would be admissible in the
trial of the other if the two offenses remained severed.” Spicer v. State, 12 S.W.3d 438,
445 (Tenn. 2000) (citing State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984)). “In its
most basic sense, therefore, any question as to whether offenses should be tried separately
pursuant to Rule 14(b)(1) is ‘really a question of evidentiary relevance.’” Id. (quoting State
v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999)). Because the primary inquiry in a question of
severance under Rule 8(b)(1) is whether the evidence of one crime would be admissible in
the trial of the others, the requirement that evidence of one of the offenses be relevant to
some material issue in the trial of the other offenses, and the balancing of the probative and
prejudicial value of the evidence is in essence an analysis under Tennessee Rule of
Evidence 404(b). See Spicer, 12 S.W.3d at 445 (enumerating the three required findings
by the trial court and citing Tennessee Rule of Evidence 404(b) as authority for requiring
that the evidence be relevant to some material issue and that its probative value not be
outweighed by any prejudicial effect). The general rule is that evidence of prior crimes,
wrongs or acts is not admissible to establish a defendant’s propensity or character, yet such
evidence may be “admissible for other purposes.” Tenn. R. Evid. 404(b); see also Moore, 6
S.W.3d at 239; Toliver, 117 S.W.3d at 230. Under Rule 404(b), evidence of one offense
may be admissible in the trial of another offense to show (1) motive; (2) intent; (3) guilty
knowledge; (4) identity of the defendant; (5) absence of mistake or accident; or (6)
common scheme or plan for commission of two or more crimes so related to each other
that proof of one tends to establish the other. State v. Osborne, 251 S.W.3d 1, 12 (Tenn.
Crim. App. 2007). Finally, the trial court must weigh whether the probative value of the
evidence of the other offense/s is not outweighed by the prejudicial consequences of
admission under Rule 404(b)(4). State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008);
Osborne, 251 S.W.3d at 12. The Tennessee Supreme Court has observed that admission
of other crimes carries an inherent risk that the jury will consider the prior crime as
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propensity evidence. Dotson, 254 S.W.3d at 387. Accordingly, any doubt about the
propriety of the consolidation of similar offenses over a defendant’s objection should be
resolved in favor of the defendant. Garrett, 331 S.W.3d at 403; State v. Jose Gonzalez
Bonilla, No. M2019-01193-CCA-R3-CD, 2020 WL 3791677, at *9 (Tenn. Crim. App. July
7, 2020).
In the trial court’s order, after outlining the applicable law, the trial court
determined, without elaboration, that “identity is a material issue at trial in all Counts of
the Indictment, and the offenses charged . . . were part of a larger, continuing plan[.]” The
extent of the trial court’s application of the law in denying severance in this eleven-count
indictment was as follows:
Detective McGowan testified about his investigation of the string of
robberies, which included (1) the November 26, 2017 stop of the Defendant
to determine who used the vehicle viewed on surveillance footage, (2)
attempts at tracking the Defendants vehicle (no robberies were committed
while the vehicle was being tracked), and (3) obtaining the Defendants phone
records, which showed his phone pinged near the robbery locations at the
time the robberies were committed. The evidence to establish each individual
robbery charge (summarized in the chart marked Ex. 1A) is “so related to
each other that proof of one tends to establish the others.” 20 Am. Jur.
EVIDENCE § 314 (1939); Collard v. State, 526 S.W.2d 112, 114 (Tenn.
1975). The probative value is particularly significant and outweighs potential
prejudice.
The Defendant then submitted a motion to reconsider the above denial of severance,
noting (1) that the trial court failed to engage in the second step of the analysis and
explicitly weigh the probative value against the prejudicial effect of each offense; and (2)
providing supplemental authority, discussed in detail below, in support of the proposition
that common scheme or plan based on the offense having been committed as part of a
larger, continuing plan or conspiracy, cannot be premised on the goal of stealing money to
purchase drugs. In response, the trial court issued an extensive order denying the motion
to consider. The trial court emphasized the portion of Hallock noting that the overall
purpose of committing unrelated robberies “to acquire money for college... without more
would necessitate a severance.” Hallock, 875 S.W.2d at 290 (emphasis in order). The trial
court also acknowledged that “asserting unrelated crimes should be joined solely because
they were committed to get money to buy drugs is insufficient for joinder.” Adams, 859
S.W.2d at 362-363. The trial court pivoted from the supplemental authority, and without
expressly so stating, “found additional reasons to support joinder in addition to the
Defendant’s goal of acquiring more money to fuel his heroin addiction.” The trial court
order then conclusory stated that it had considered both prongs of the severance test,
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discussed the facts of State v. Jamie Paul Click, No. E2015-01769-CCA-R3-CD, 2017 WL
1189750 (Tenn. Crim. App. Mar. 30, 2017), appeal denied (Tenn. Aug. 16, 2017),
determined, without analysis, that the proof of each aggravated robbery charged against
the Defendant was inextricably connected with the evidence of the other offenses, and
again denied severance.
In my view, after full application of the above legal framework, the offenses charged
cannot be classified as parts of a larger, continuing plan or conspiracy. The State and the
majority inexplicably have given short shrift to Hallock, Adams, and Griffin. As
recognized by the trial court, those cases collectively stand for the proposition that
unrelated crimes cannot be joined if committed for the purpose of obtaining money to buy
drugs. Yet, the majority insists that the Defendant’s confession to robbing the convenience
stores to fuel his drug habit was sufficient proof to satisfy the first prong of the test for
joinder because the confession itself amounted to a working plan. In my view, consistent
with Hallock, Adams, and Griffin, the Defendant’s confession provided his reason or
motivation to commit the robberies-to support his drug addiction- and nothing more. He
explained that when he ran out of money for drugs, he would rob another convenience store
to get more money to do more drugs. His behavior amounts to random, opportunist
criminal acts and not the product of any preconceived plan as required for joinder. Denton,
149 S.W.3d at 15 (holding that a larger plan or conspiracy contemplates offenses
committed in the furtherance of a plan that has a “readily distinguishable goal, not simply
a string of similar offenses”); see also United States v. Chartier, 970 F.2d 1009, 1016 (2d
Cir. 1992) (concluding that evidence of a plan simply to commit robberies when and as
money is desired or needed cannot be enough by itself to establish “single common scheme
or plan” under the sentencing guidelines and that “mere similarity of separate crimes
committed within a short period of time does not create common scheme or plan”).
Finally, the Defendant’s confession evinces a characteristic or condition, that is
drug addiction, which drove the Defendant to commit crimes. This is classic propensity
evidence. I recognize that our analysis here is under the first prong of Rule 14; however,
as will be more fully discussed below, admission of this evidence clearly demonstrates the
criminal disposition of the Defendant-as a drug addict-to show that he acted in conformity
therewith in committing the other crimes charged against him. See e.g., State v. Mazowski,
337 N.J. Super. 275, 282-83, 766 A.2d 1176, 1180-81 (App. Div. 2001) (rejecting drug
addiction as evidence of motive, opportunity, plan under Rule 404(b) and explaining that
drug addiction is a “disposition” and prohibited as propensity). The State cannot be
permitted to introduce propensity evidence under the guise of the broad category of a larger
continuing plan or conspiracy when it would otherwise be prohibited from doing so under
Rule 404(b). Because the Defendant’s confession rings hollow and there was no other
proof of a larger, continuing plan for purposes of Rule 14, I would have concluded my
analysis and granted the Defendant’s motion to sever.
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As the majority reached a different conclusion, I am compelled to note that neither
the trial court nor the majority expressly engaged in balancing whether the probative value
of the evidence of the other offenses was not outweighed by the prejudicial consequences
of admission under Rule 404(b). Hoyt, 928 S.W.2d at 944-45 (“In order to comply with
the requirements of the second prong, the trial court was required to conduct a hearing to
determine if evidence of one offense is relevant to a material issue in the trial of the
other offense and to determine whether the probative value of such evidence outweighs
any prejudicial effect.”). Where the offenses to be joined are the same or similar, engaging
in the balancing test is particularly important because the risk of prejudice is inherently
higher. Dotson, 254 S.W.3d at 389. In any event, in regard to the second prong, I am not
necessarily convinced that the offenses to be joined were so similar as to allow an inference
of identity from the presence of a common scheme or plan. Moore, 6 S.W.3d at 240.
Nevertheless, even if an argument can be made that evidence of the counts in which the
Defendant confessed was relevant to identify the Defendant as the perpetrator in counts 8
and 12, in which the Defendant did not confess, the probative value of the evidence of these
other offenses was outweighed by the prejudicial effect that admission of the evidence
would have on the Defendant. This is because evidence that the Defendant confessed to
ten of the twelve aggravated robberies invited the jury to infer guilt from the propensity of
the Defendant to commit aggravated robberies. Dotson, 254 S.W.3d at 387; Spicer, 12
S.W.3d at 445.
The unfair prejudice was compounded when, as pointed out by the Defendant, the
prosecutor argued in closing that the jury should convict the Defendant in count 8, to which
there was no confession, because “[t]here can be no doubt that the same individual
committed this robbery that committed the other ones.” In upholding the severance, the
majority relies upon the very type of propensity evidence Rules 14(b)(1) and 404(b) are
designed to prevent. Accordingly, I would have concluded that the trial court abused its
discretion in finding that the probative value of admitting such evidence was not
outweighed by the prejudicial effect.
Because the error here is neither structural or constitutional, the appropriate inquiry
is to determine what harm, if any, the Defendant suffered as a result of the improper joinder
of offenses and whether the gravity of the error warrants a new trial. Dotson, 254 S.W.3d
at 388. In determining whether an error is harmless, we must evaluate the record to
determine whether this error appears to have affirmatively affected the outcome of the trial.
Tenn. R. App. P. 36(b); Moore, 6 S.W.3d at 242. Additionally, in determining
harmlessness, the key question is whether the error likely had an injurious effect on the
jury’s decision-making process. Dotson, 254 S.W.3d at 389. The “line between harmless
and prejudicial error is in direct proportion to the degree . . . by which proof exceeds the
standard required to convict . . . .” Delk, 590 S.W.2d at 442; Spicer, 12 S.W.3d at 447-48.
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“[E]rror is harmful when, because the evidence of guilt was not overwhelming, the failure
to sever offenses invited the jury to infer guilt from the propensity of the accused to commit
crime.” Prentice, 113 S.W.3d at 332; see Spicer, 12 S.W.3d at 447.
In this case, while the evidence presented at trial is sufficient to convict on each
count, the nature of evidence presented regarding each count “varies in quality and degree.”
Dotson, 254 S.W.3d at 389. The Defendant confessed to most, but not all, of the crimes.
Dotson, 254 S.W.3d at 389. It is likely that the confessions bolstered the limited evidence
of other crimes. In other words, because the offenses were so similar, this bolstered the
State’s theory on all charges. Id. Proof of other crimes “easily results in a jury improperly
convicting a defendant for his or her bad character or apparent propensity or disposition to
commit a crime.” Rickman, 876 S.W.2d at 828. As in Dotson, 254 S.W.3d at 390, “[w]e
cannot conclusively determine how evidence that should not have been admitted affected
the jury’s decision-making” and “cannot be sure as to what evidence might have tipped the
scales in favor of the State.” However, it is doubtful that the jury independently considered
each charge on its own evidence.
In my view, the evidence of the Defendant’s guilt was overwhelming as to Counts
1, 2, 3, 4, 5, 6, 7, 9, 10, and 11. The proof showed the Defendant confessed to the offenses
charged in the aforementioned counts and that cell towers placed the Defendant in the
vicinity of these crimes when these crimes occurred. Because the evidence of the
Defendant’s guilt in these counts was overwhelming, the trial court’s improper joinder of
offenses charged in these counts was harmless. However, while the evidence was likely
sufficient to sustain the Defendant’s convictions in Counts 8 and 12, it was far from
overwhelming. The trial court’s failure to sever these offenses allowed the jury to infer the
Defendant’s guilt from his confession to ten of the twelve charged aggravated robberies.
See Prentice, 113 S.W.3d at 333 (providing several examples of cases in which failure to
sever was both harmful as to some convictions and harmless as to others). In count 8,
although there was evidence showing that the Defendant’s cell phone connected to a cell
tower near the store at the time of the charged offense and surveillance video of the robbery,
the Defendant expressly denied robbing this store, and the victim was unable to identify
the perpetrator. In count 12, while there was evidence showing that the Defendant’s cell
phone communicated with a cell tower near the store at the time of the charged offense and
surveillance video of the robbery, there was no confession, no identification made by a
witness, no prints sufficient for analysis, and no proof that the perpetrator took anything.
Because of the limited evidence presented as to these counts, I would have vacated the
Defendant’s convictions in counts 8 and 12 and remanded the case for separate trials as to
these counts. See, e.g., State v. Lucius Macineo Moss, No. 03C01-9501-CR-00002, 1996
WL 238692, at *4 (Tenn. Crim. App. May 2, 1996).
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In closing, the record shows that this case was extensive and heavily litigated by
both parties. Indeed, Rules 8 and 14, reflect a legislative policy decision to balance judicial
efficiency in such cases with a defendant’s right to a fair trial. However, this can be done
only with proper application of the rules in this area of the law. See State v. Garrett, 331
S.W.3d at 407 (citing multiple reversals of conviction based on improper joinder and
“urging both trial courts and parties to tread more carefully in this area of criminal
procedure”). Accordingly, I dissent.
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CAMILLE R. MCMULLEN, JUDGE
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