State of Tennessee v. Quintavious Montez Patton and Donte R. Swanier ( 2020 )

03/19/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 10, 2019 Session
STATE OF TENNESSEE v. QUINTAVIOUS MONTEZ PATTON AND
DONTE R. SWANIER
Appeal from the Criminal Court for Davidson County
No. 2015-B-865 Steve R. Dozier, Judge
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No. M2018-01462-CCA-R3-CD
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A Davidson County jury convicted Quintavious Montez Patton of first degree felony
murder, voluntary manslaughter, attempted especially aggravated robbery, and attempted
aggravated robbery. The jury convicted Donte Ricardo Swanier of first degree felony
murder, attempted especially aggravated robbery, and attempted aggravated robbery.
The trial court sentenced both Defendants to effective sentences of life in prison. On
appeal, Defendant Patton: (1) challenges the trial court’s admission of video evidence; (2)
claims his right to a speedy trial was violated; and (3) seeks relief based upon the
cumulative effect of the trial court’s errors. Defendant Swanier appeals the trial court’s
admission of: (1) rap music; (2) Facebook posts; and (3) prior bad acts. After review, we
affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.
Nicholas McGregor, Nashville, Tennessee, for the appellant, Quintavious Montez Patton.
Patrick T. McNally, Nashville, Tennessee, for the appellant, Donte R. Swanier.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Jennifer M.
Charles, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from an attempted robbery resulting in the shooting death of the
victim, Moises Zarate. The Davidson County grand jury indicted the defendants for first
degree felony murder, attempted especially aggravated robbery, and attempted
aggravated robbery. The grand jury additionally charged Defendant Patton with first
degree premeditated murder.
A. Procedural History
On April 1, 2016, Defendant Swanier made a proffer to the police, implicating
Defendant Patton in the robbery and shooting. The State sought severance of the cases in
anticipation of Defendant Swanier testifying against Defendant Patton at the June 19,
2017 trial. A few days before the trial, Defendant Swanier recanted, claiming his
identification of Defendant Patton as the shooter was false. The State then moved to
consolidate the defendants’ cases because the defendants were charged with felony
murder of the same victim arising out of the same incident.
On June 21, 2017, Defendant Patton filed a motion to remain severed for purposes
of speedy trial, requesting that the trial court allow his trial to proceed on July 17, 2017.
Defendant Patton argued that the State should not be allowed to delay because the State’s
trial strategy had changed. The trial court denied the motion, consolidated the cases, and
the defendants’ trial was set for October 16, 2017.
B. Trial
In March 2014, the victim lived at the residence of his brother, Marco Zarate, in
Antioch, Tennessee. On the night of March 14, 2014, the brothers’ cousin, Adran
Zanarripa, stopped by the house to pick up toys to deliver to family in Mexico. When
Mr. Zanarripa arrived at around 9:00 p.m., the victim went outside to help load the items
into Mr. Zanarripa’s truck, while Marco Zarate remained inside the house.
Mr. Zanarripa testified that he and the victim were moving items from the victim’s
red truck into Mr. Zanarripa’s truck when he saw a man grab the victim around the neck.
The man who grabbed the victim was black, approximately 5’11”, had a thin build, and
wore his hair in long dreadlocks. The man wore a knit cap that had a bill like a baseball
cap and a handkerchief covering his face. Mr. Zanarripa described the man as “young.”
Mr. Zanarripa then saw another man who was pointing a gun at Mr. Zanarripa, ordering
him not to move. This man was also black but lighter-skinned than the man who grabbed
the victim. He also wore a handkerchief over his face and was young and thin. Mr.
Zanarripa turned and ran into Marco Zarate’s house yelling that they were being robbed
and then heard gunfire. Upon hearing the gunfire, he turned and ran back outside to the
victim.
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Still inside the house, Marco Zarate heard “some yelling” about a robbery and
“shouts of terror.” Marco Zarate testified that he looked out the bedroom window and
saw gunfire before closing the curtain quickly to avoid detection. Marco Zarate said he
was unable to see the shooter well because it was night and the person wore dark
clothing. Marco Zarate ran downstairs and outside to where he found the victim lying on
the ground. The victim was still breathing, but his breathing was labored. Marco Zarate
called 911 at approximately 9:30 p.m. to request an ambulance. During the phone call to
911, Marco Zarate gave the phone to Mr. Zanarripa who provided a description,
consistent with his testimony, about the suspects. The victim died before the ambulance
arrived.
A neighbor, Sherrie Robinson, recalled, on March 18, 2014, before 10:00 p.m., she
heard something that she initially thought was a car backfiring. After the loud bang, she
heard people screaming and yelling, which caused her to look out her window. She saw
two people get into a silver or light-colored compact car and drive away.
Rayvon Walker, Defendant Patton’s cousin, testified that, at the time of the
shooting, he was sixteen-years-old and on spring break from high school. On Tuesday,
March 18, 2014, Defendant Patton called Mr. Walker and said that he wanted to “hang
out.” Defendant Patton arrived at Mr. Walker’s house with Defendant Swanier, whose
nickname was “Savage,” and Defendant Patton’s girlfriend, Diana Reyes.1 The foursome
left Mr. Walker’s house in Defendant Swanier’s silver car. Mr. Walker was unsure of the
make of the car but guessed that it might have been a Hyundai. Mr. Walker recalled that
he wore a black “Georgia hoodie” and some khaki pants. Mr. Walker also brought with
him another set of clothing that included a black North Carolina hooded sweatshirt and a
pair of black pants.
Mr. Walker testified that they drove to a car wash. He identified a photograph of
Defendant Patton, Defendant Swanier, and Ms. Reyes at the car wash. In the photograph,
Mr. Walker wore the Georgia sweatshirt consistent with his earlier description of his
clothing. Ms. Reyes wore a pair of white rimmed sunglasses “with tint.” Mr. Walker
said that Defendant Swanier remained in the same clothing all day. Mr. Walker
confirmed that he wore his hair in dreadlocks at the time of the shooting. Mr. Walker
said that Defendant Patton also wore his hair in dreadlocks but that his dreadlocks had
been shorter than Mr. Walker’s and a portion died “[y]ellowish blond.”
1
The transcript and motions in the record spell Diana Reyes’s name differently. For purposes of
consistency, we spell the name “Reyes” as it is spelled in Defendant Patton’s pre-trial motions.
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Mr. Walker testified that the group drove to four different locations that day, one
of which was a Shell gas station. The State played surveillance video obtained from the
Shell gas station and asked Mr. Walker to identify the defendants in the video. Mr.
Walker noted that Defendant Swanier was “a stalkier heavier guy” than Defendant
Patton. The video showed Defendant Swanier pull in at a gas station, and Defendant
Swanier and Defendant Patton exit the vehicle and walk into the Shell gas station.
Defendant Swanier stood in line to pay for gas while Defendant Patton walked around the
store and then exited with Defendant Swanier when he was finished paying. The video
showed the defendants return to the car where Defendant Patton entered the front
passenger side of the car, and Defendant Swanier pumped gas into the car. The men were
dressed consistently with what they had been wearing in the car wash photographs. Mr.
Walker explained that he and Ms. Reyes remained in the vehicle while the defendants
went into the gas station.
Mr. Walker testified that next they drove to a K-Mart where all four went inside.
The time stamp on K-Mart surveillance video footage showed the date as March 18,
2014, and the time as 6:48 p.m. Mr. Walker identified himself in still photographs taken
from the surveillance video as the person wearing the Georgia hoodie. He also identified
Defendant Patton, wearing gray, Defendant Swanier, wearing a red hat, and Ms. Reyes
wearing the same white-rimmed sunglasses. The group then drove to Defendant
Swanier’s house.
At approximately 9:10 p.m., Defendant Swanier drove Defendant Patton, Mr.
Walker, and Ms. Reyes to a Knights Inn Motel (“Knights Inn”) located near Bell Road.
Mr. Walker said that the idea to go to the Knights Inn was initiated by the defendants.
Mr. Walker had changed into the North Carolina sweatshirt and black pants and wore a
black bandanna, which had been given to him by Defendant Patton, over his face and the
white-rimmed sunglasses earlier worn by Ms. Reyes. Defendant Patton also wore a black
bandanna. Defendant Patton left his cell phone with Ms. Reyes and then he and Mr.
Walker exited the vehicle nearby the Knights Inn. The State played surveillance video
from the Knights Inn, and Mr. Walker identified himself and Defendant Patton on the
video wearing clothing consistent with his testimony. The time stamp on the recording is
March 18, 2014, at 9:10 p.m. The men returned from the Knights Inn and got into
Defendant Swanier’s car where they exchanged clothing so that Mr. Walker wore his
Georgia hoodie while Defendant Patton wore the North Carolina hoodie and black pants.
Mr. Walker recalled that he also wore a skull cap.
Mr. Walker testified that a plan developed to commit a robbery, but he could not
recall who initiated the idea. At around 9:20 p.m., Defendant Swanier drove to a
neighborhood where Defendant Patton and Mr. Walker were to rob someone with the use
of Defendant Swanier’s gun. Mr. Walker explained that Ms. Reyes had run away from
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home so the defendants wanted to steal money to pay for a motel room for a place to stay.
Mr. Walker denied seeing any of the group drinking or using drugs during the time
leading up to the robbery.
Mr. Walker testified that they saw two Hispanic men standing by a vehicle in a
yard, and Defendant Patton quickly developed a plan to use the gun to get the two men on
the ground. Mr. Walker exited the vehicle with the hoodie over his head, still wearing
the skull cap underneath and his dreadlocks “down.” Mr. Walker said that he ran over
and “grabbed the first person,” the victim, and the two men began “tussling.” Defendant
Patton ordered the victim to let Mr. Walker go, but the victim did not comply, so
Defendant Patton shot the victim. Defendant Patton and Mr. Walker then ran back to
Defendant Swanier’s car.
Upon further questioning, Mr. Walker added that, when they first approached the
men in the yard, he ran toward the victim while Defendant Patton ran toward Mr.
Zanarippa, the other man standing in the yard. He said that Defendant Patton fired only
one shot and that after the victim was shot, Mr. Zanarippa ran to the victim. Mr. Walker
said that he did not touch either of the cars at the house with his bare hands and that both
he and Defendant Patton wore gloves at the time of the attempted robbery.
Once back inside the vehicle, the men told Defendant Swanier about what had
occurred and returned the gun to him. Defendant Swanier drove to the Knights Inn. Mr.
Walker identified a clip of surveillance video from the Knights Inn showing the date and
time as March 18, 2014, at 9:48 p.m. The footage showed Defendant Swanier entering
the lobby of the Knights Inn and renting a room. He was dressed consistently with the
surveillance footage from the other locations on the day of the shooting. Mr. Walker
stated that after Defendant Swanier rented a room for the night, they drove to an
O’Charley’s restaurant where Defendant Swanier “got out of the car for something,” then
they drove to Liquor World where Ms. Reyes stole a bottle of liquor. The group went to
a McDonald’s restaurant before returning to the Knights Inn. Mr. Walker did not recall
Defendant Swanier leaving the Knights Inn again, but he agreed that the surveillance
video showed Defendant Patton, Ms. Reyes, and Mr. Walker going into the motel
complex and Defendant Swanier’s vehicle driving away. Defendant Swanier’s vehicle
returned at around 10:05 p.m.
Mr. Walker testified that, the following morning, Defendant Swanier drove him
home. Mr. Walker returned to school the following Monday and tried not “to think about
it.” On May 9, 2014, however, Detective Chad High came to Mr. Walker’s school and
asked to speak with him. During the interview, Mr. Walker told the police officer that
Defendant Patton shot the victim, and Defendant Swanier drove and supplied the gun.
The recording of this interview was played for the jury. Mr. Walker returned to class that
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day but was later arrested on May 29, 2014, and transported to the east Nashville
detention center. Several days after Mr. Walker’s arrest, Defendant Patton arrived at the
detention center. Mr. Walker stated that he did not have any contact with Defendant
Patton initially but eventually they communicated.
On June 6, 2014, Mr. Walker provided another statement to the police, again
identifying Defendant Patton as the shooter and Defendant Swanier as the driver and the
provider of the weapon. Mr. Walker stated that he pleaded guilty to facilitation of felony
murder and agreed to testify truthfully against the defendants.
Mr. Walker testified that in 2016, he was at the community center for a baby
shower being held for his girlfriend. Mr. Walker had not invited Defendant Swanier to
the baby shower, but Defendant Swanier and another man showed up in a truck. Both
men kept their hands in their pockets, causing Mr. Walker to feel “nervous.” Defendant
Swanier told Mr. Walker he was out of jail on bond and that Mr. Walker had “better not
[go] to court snitching.” Mr. Walker said that he agreed with whatever Defendant
Swanier said out of fear for the safety of his girlfriend and family present at the baby
shower.
Mr. Walker testified that Defendant Patton had called him on Valentine’s Day and
advised him to “plead the 5th” when he came to court to testify. The State played a
recording of the phone call and distributed a transcript of this recorded conversation. Mr.
Walker reaffirmed his identification of Defendant Patton as the shooter and stated that his
testimony had been truthful.
Lakesha Chambers, Mr. Walker’s aunt, testified that she had raised Mr. Walker
since he was two years old. Ms. Chambers explained that she had two sisters, Mr.
Walker’s mother, LaResha Walker, and Defendant Patton’s mother, Shameka Patton.
Ms. Chambers confirmed that, prior to March 2014, she and her sister Shameka Patton
had shared a close relationship. She confirmed that Defendant Patton and Mr. Walker
grew up playing together but said that the two cousins had spent less time together as
they became older. Ms. Chambers was unaware that Mr. Walker was spending the day
with Defendant Patton on March 18, 2014. The following day when Mr. Walker returned
home, Ms. Chambers did not notice anything “unusual” about Mr. Walker, and he
mentioned nothing about the events of March 18.
Ms. Chambers recalled that on May 27, 2014, Shameka Patton came to Ms.
Chambers’ house, which was unusual. Ms. Patton told Ms. Chambers that she was in the
area to “work out” and then went to the bathroom. Ms. Chambers remained in the
kitchen cooking. When Ms. Patton did not return after a period of time, she went to look
for Ms. Patton and found Ms. Patton sitting at the foot of Mr. Walker’s bed and Mr.
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Walker sitting up in bed crying. She asked Mr. Walker why he was crying, and he
replied, “just know me and [Defendant Patton] going to jail for a long time.” Ms.
Chambers was puzzled by his response and surprised that her sister would go to Mr.
Walker’s room without telling her.
The parties stipulated that the Metropolitan Nashville Police Department
(“MNPD”) had obtained a warrant on March 7, 2014, allowing the police to place a GPS
tracking device on Defendant Swanier’s 2002 silver Hyundai Elantra. Through Davidson
County Sheriff’s Office employee Linda Griffin, the State also introduced phone records
from MCC (Maximum Correctional Center) where Defendant Patton was housed on
February 14, 2017. The records are consistent with Mr. Walker’s testimony about
Defendant Patton’s phone calls to him from jail.
MNPD Detective Joseph High testified that he responded to a call about a
shooting in Antioch, Tennessee. After gathering information at the crime scene and
speaking with the victim’s brother, Marco Zarate, he returned to the police precinct and
interviewed Mr. Zanarripa, the victim’s cousin. After speaking with Mr. Zanarripa,
Detective High determined that the police were looking for two suspects. Detective High
attended the autopsy of the victim and learned that one projectile was recovered from the
victim’s right chest cavity.
Detective High testified that on the afternoon of March 19, 2014, he received
information from the Hermitage Precinct about possible suspects. The information
related to a GPS tracker that officers at the Hermitage Precinct had been monitoring.
Detective High recalled that police officers had placed a GPS tracker on Defendant
Swanier’s 2002 silver Hyundai at around 6:30 p.m. on March 18, 2014, while the vehicle
was parked in a parking lot on Murfreesboro Road near Edgehill. At this point in
Detective High’s testimony the trial court declared Detective High an expert in the field
of mobile device call detail record analysis and analysis of GPS devices. Detective High
then explained to the jury how the police monitored a tracking device. Detective High
identified records containing data retrieved from the GPS tracking device placed on
Defendant Swanier’s vehicle.
Based upon these records, Detective High testified that Defendant Swanier’s
vehicle was within eighty yards of the address where the victim was shot at 9:25 p.m. on
March 18, 2014. This information was consistent with Ms. Robinson’s statement to the
police that she had seen a silver Hyundai leave the scene at a high rate of speed around
the same time. Detective High confirmed that the police used the data retrieved from the
GPS tracking device and information gathered in interviews to follow the movements of
the vehicle to various locations leading up to the crimes. Detective High then obtained
surveillance videos from those locations confirming the defendants’ presence at those
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locations. Detective High testified that the first location was a Shell gas station. The
surveillance video showed Defendant Swanier’s vehicle arrive at approximately 6:22
p.m. and remain at the gas station for between five to ten minutes.
Detective High testified that the group next went to a K-Mart located on
Murfreesboro Road. Surveillance video showed that both defendants, Mr. Walker, and
Ms. Reyes were dressed the same as they were at the Shell gas station. All four went into
the K-Mart, remained there briefly, and then exited at 6:53 p.m. After the K-Mart stop,
GPS tracking data indicated that the vehicle was located in an area off Bell Road until
around 7:40 p.m. Upon leaving this area, police tracked Defendant Swanier’s vehicle
driving down Bell Road to Murfreesboro Road to I-24. Detective High created an
animation of the vehicle’s movement, which the State played for the jury. The vehicle
remained in an area near a Home Depot located near Cane Ridge Road until around 9:08
p.m. Detective High noted that the vehicle was in the area of an access road that runs
near the Home Depot and that there was a storage unit and a Knights Inn in the area
behind the Home Depot.
Based upon this information, Detective High obtained surveillance footage from
the Knights Inn. The surveillance video from March 18, 2014, at around 9:11 p.m.
showed Defendant Swanier’s vehicle. The GPS tracking data indicated that the vehicle
then drove down Bell Road to Blue Hole Road and eventually to Antioch Pike.
Defendant Swanier’s vehicle then entered the area of the shooting at around 9:20 p.m.
The vehicle remained in the area of the shooting for less than ten minutes. Detective
High noted that the victim’s brother called 911 about the shooting at 9:31 p.m.
According to the GPS tracking data, Defendant Swanier’s vehicle then returned to the
area around the Knights Inn. Based upon this information, Detective High obtained
surveillance video from a Thorntons, a Mapco, and a Liquor World, all located along Bell
Road.
As part of the investigation, Detective High sought a warrant for the call detail
information for Defendant Swanier’s, Defendant Patton’s, and Mr. Walker’s cell phones.
The cell phone records showed locations consistent with the GPS tracking data and the
surveillance videos. Detective High narrated a Power Point presentation of the call detail
records. Detective High confirmed that the GPS tracking data indicated that at 10:10
p.m. Defendant Swanier’s vehicle was near an O’Charley’s restaurant in the area of Bell
Road and Mount View Road. The GPS tracking data showed Defendant Swanier’s
vehicle drove to a parking lot in the vicinity of Liquor World and a McDonald’s
restaurant. Video surveillance footage obtained from Liquor World showed Ms. Reyes
inside the Liquor World dressed in the same clothing seen in the K-Mart surveillance
video. Detective High testified that surveillance video showed Defendant Patton with
Ms. Reyes, and Defendant Swanier’s vehicle sitting in the northwest corner of the
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parking lot. The GPS tracking data showed the vehicle traveling to the Knights Inn area
from 10:30 to 10:40 p.m. The surveillance video footage from the Knights Inn was
consistent with the GPS tracking data. The Knights Inn surveillance video showed
Defendant Patton, Mr. Walker, and Ms. Reyes walking through the parking lot at 10:40
p.m. before Defendant Swanier’s vehicle drove away. Surveillance video footage from a
Thorntons Gas Station at 10:48 p.m. showed Defendant Swanier at the Thorntons located
at Eagle View and Bell Road before returning to the Knights Inn for the night.
Detective High obtained surveillance footage for the following morning, March
19, 2014, which showed the defendants, Ms. Reyes, and Mr. Walker leaving the Knights
Inn at 11:03 a.m. Detective High noted that the surveillance video showed a blond
“patch” of hair visible at the top of Defendant Patton’s hair, similar to Defendant Patton’s
appearance at the time of his arrest. Detective High stated that, during the course of his
investigation, he learned that Ms. Reyes was “listed as a run away.” Detective High
stated that Mr. Walker was arrested for the victim’s death on May 28, 2014, Defendant
Patton on June 9, 2014, and Defendant Swanier in June or July. He recalled that
Defendant Swanier was later released on bond.
Throughout the course of his investigation, Detective High learned that Defendant
Swanier went by the nickname “Savage.” Detective High testified that he reviewed the
January 17, 2017 Facebook post on Defendant Swanier’s Facebook page. He identified
the photograph that was the subject of the post, an album cover for “D-Savage.” It
depicts a handcuffed arm with tattoos holding a gun. In the lower right hand corner, it
reads “Sorry 4 the Case.” Detective High confirmed that Defendant Swanier had tattoos
extending to his wrist, as did the person depicted in the album photograph. On June 18,
2017, while out on bond, Defendant Swanier also posted to Facebook a rap music video
entitled “Another Juug.” The video showed a man that looked like Defendant Swanier
holding a pistol with an extended magazine clip. The following lyrics were provided to
the jury in the form of a transcript and the rap video was also played:
Detectives had me on the news
Talking about murder and robbery
Murder and robbery
Rob a nigga and for what
You know a nigga is a prodigy
Detective High confirmed that, at the time of Defendant Swanier’s arrest, detectives had
appeared in news reports talking about the attempted robbery and murder.
Thomas Deering, the Nashville Deputy Chief Medical Examiner, testified as an
expert witness in the field of forensic pathology. Dr. Deering testified that he did not
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perform the autopsy on the victim but that he had reviewed all of the materials associated
with this case. Dr. Deering testified that the victim bled to death as a result of gunshot
wounds to the arm and chest and the manner of death was homicide. Dr. Deering said
that the external examination of the victim revealed five gunshot wounds, four to the left
arm and one to the chest. Based upon the examination of each of the wounds, it appeared
all wounds were caused by one bullet entering, exiting and then re-entering the body
twice.
After the State’s case-in-chief, Defendant Patton elected not to offer any evidence,
and Defendant Swanier offered the testimony of two witnesses. Breion Dixon testified
that he worked in the music industry and recalled doing a video shoot on November 11
but he did not state the year. He provided a flier that he had produced and circulated
inviting the public to attend the video shoot and specifically recalled that Defendant
Swanier was present. Mr. Dixon reiterated that he was sure that Defendant Swanier “was
at the one across the street from Morgan Park.” Marcus Hemphill testified that he
accompanied Defendant Swanier to the video shoot. When they arrived, they saw Mr.
Walker. Mr. Walker and Defendant Swanier approached each other, and Mr. Walker
“nodded and kind of spoke softly and said, yeah, I will . . . go to court and tell truth.” Mr.
Hemphill denied that Defendant Swanier told Mr. Walker not to “snitch” but agreed that
Defendant Swanier told Mr. Walker to “tell the truth.”
Based upon this evidence, the jury convicted Defendant Patton of first degree
felony murder, voluntary manslaughter, attempted especially aggravated robbery, and
attempted aggravated robbery and Defendant Swanier of first degree felony murder,
attempted especially aggravated robbery, and attempted aggravated robbery. As to each
defendant, the trial court imposed life sentences for the first degree felony murder
convictions, with the remaining sentences to be served concurrently with the life
sentences. It is from these judgments that the defendants appeal.
II. Analysis
On appeal, Defendant Patton: (1) challenges the trial court’s admission of video
evidence; (2) claims his right to a speedy trial was violated; and (3) seeks relief based
upon the cumulative effect of the trial court’s errors. Defendant Swanier appeals the trial
court’s admission of: (1) rap music; (2) Facebook posts; and (3) prior bad acts.
A. Admission of Evidence
On appeal, both defendants challenge the trial court’s admission of various pieces
of evidence. Defendant Patton asserts that the trial court erred when it admitted
surveillance video from the Knights Inn and from the Shell gas station. Defendant
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Swanier claims error as to the Knights Inn surveillance video and additionally challenges
the admission of the Liquor World surveillance video, his Facebook post depicting his
album cover, and a portion of his rap song.
1. Knights Inn Surveillance Video
The defendants argue that the trial court erred when it admitted the first video
footage from Knights Inn showing two men approaching the lobby and then turning and
fleeing. The defendants argue that the trial court improperly analyzed the evidence under
Tennessee Rule of Evidence 403 rather the more restrictive 404(b) test. The State
responds that the trial court properly analyzed this evidence under both Tennessee Rule
of Evidence 403 and 404(b) and concluded that the video was admissible.
The State asserts that Defendant Swanier has waived review for failure to raise a
timely objection to the surveillance video. In 2017, the State filed a notice of its intent to
introduce evidence which could be considered a prior bad act under Tennessee Rule of
Evidence 404(b). Both the State’s notice and the subsequent hearing on the motion were
after the defendants’ cases had been severed in anticipation of Defendant Swanier being a
State witness at Defendant Patton’s trial. On appeal, the State correctly notes that due to
the severance, Defendant Swanier was a witness, not a party to the hearing and, therefore,
lodged no objection to the evidence. Thereafter, however, Defendant Swanier recanted
his statement, and the defendants’ cases were consolidated for trial. There is no record of
Defendant Swanier raising an objection to the admission of the Knights Inn video once
the cases were consolidated; however, he included the issue in his motion for new trial.
We agree with the State that Defendant Swanier risks waiver. See Tenn. R. App. P. 36(a)
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”) Based upon the record before us,
however, we choose to review the issue as it pertains to both defendants.
As previously stated, the State filed a pre-trial notice of its intent to offer evidence
pursuant to Tennessee Rule of Evidence 404(b). The State argued that the video was
relevant to prove identity. The men approaching the Knights Inn and then running out of
the frame are dressed in clothing consistent with Mr. Walker’s statement to the police.
Furthermore, the time stamp on the video was 9:09 p.m., placing Defendant Patton in the
area with Mr. Walker shortly before the shooting. The State argued that the video
corroborated Defendant Swanier and Mr. Walker’s version of the events which included
Defendant Swanier as the driver while the other two men approached the victims. The
State noted its intention to use the video for identity purposes only and there was no plan
“to mention the uncharged criminal behavior.”
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At the hearing, Defendant Patton’s attorney conceded that identity “could be an
issue” as it related to the specific roles during the crimes and that height, weight, and
clothing descriptions “would be relevant.” At the conclusion of the 404(b) hearing, the
trial court found the video admissible and made the following findings:
[E]ven if you assumed that the jury took [Defendant Patton]’s perspective
that they may assume what happened, which I don’t think you can do, but
so first of all I don’t think that it is evidence of other crimes, wrongs or
acts, but it is more of an issue of is it relevant proof and obviously it is
based on the Court’s discussions here in terms of who is with who, is it
corroborative of Mr. Walker or [Defendant Swanier]’s testimony as to who
all was doing what that evening, who was driving? Yes. This few minutes
before this homicide obviously is relevant, probative proof not substantially
outweighed by any unfair prejudice.
If under 404(b) which has a different weighing process you were to
think from [Defendant Patton]’s perspective well the jury might think they
are up to something, it’s still not being offered as a character trait of
[Defendant] Patton. It’s being offered for purposes of a highly material
issue, identity, and corroborative proof about whose driving, who’s doing
what, who is wearing what clothing and that identity, obviously, is pertinent
to the State’s having to prove that obviously in the murder trial, so even
assuming that might be viewed as evidence of other crimes or wrongs,
which it is not, then it is still the Court’s analysis that that probative value is
outweighed by any danger of unfair prejudice.
The Tennessee Rules of Evidence provide that all “relevant evidence is
admissible,” unless excluded by other evidentiary rules or applicable authority. Tenn. R.
Evid. 402. Of course, “[e]vidence which is not relevant is not admissible.” Id. Relevant
evidence is defined as evidence “having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Id. at 401. Even relevant evidence, however,
“may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Id. at 403.
Evidence of other crimes, wrongs, or bad acts is not admissible to prove the
character of a person to show action in conformity with that character. Id. at 404(b).
Such evidence may be admissible, however, for “other purposes.” Id. Our Supreme
Court has determined that such “other purposes” include demonstrating motive or intent
and the identity of the defendant. State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004).
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Such evidence is admissible for other purposes, provided that the trial court: (1) upon
request, holds a hearing outside the jury’s presence; (2) determines that a material issue
exists other than conduct conforming with a character trait and, upon request, states the
basis for its determination; (3) finds proof of the other crime, wrong, or act to be clear
and convincing; and (4) determines that the probative value of the evidence is not
outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). The safeguards in
Rule 404(b) ensure that defendants are not convicted for charged offenses based on
evidence of prior crimes, wrongs, or acts. State v. James, 81 S.W.3d 751, 758 (Tenn.
2002). When a trial court substantially complies with the procedural requirements of
Rule 404(b), the standard of appellate review of the trial court’s decision is abuse of
discretion. See State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003); James, 81 S.W.3d at
759. A trial court abuses its discretion when it applies an incorrect legal standard,
reaches an illogical conclusion, bases its decision on a clearly erroneous assessment of
the evidence, or employs reasoning that causes an injustice to the complaining party.
State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). If the strict requirements of the rule
are not substantially observed, the reviewing court gives the trial court’s decision no
deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
The trial court held a hearing on the Rule 404(b) evidence outside the presence of
the jury. After hearing the evidence, the trial court found identity was the material issue
other than conduct conforming with a character trait. At the time of the hearing, the State
had two accomplices, Mr. Walker and Defendant Swanier, whose anticipated testimony
at trial would require corroboration. The State was also required to prove identity of the
shooter. Evidence that Defendant Patton was with Mr. Walker shortly before the
shooting while Defendant Swanier served as a getaway driver is proof of Defendant
Patton’s identity as the perpetrator of the first degree murder.
Although the trial court did not expressly find that the proof was clear and
convincing, the video evidence allows for little question about the validity of the proof.
In this respect, we find that the trial court substantially complied with Rule 404(b) and
the nature of the submitted evidence provides sufficient validity even absent a specific
finding by the trial court that the evidence was “clear and convincing.” See State v.
Clark, 452 S.W.3d 268, 291 (Tenn. 2014) (trial court did not “expressly state” that
evidence was “clear and convincing,” however, the defendant’s repeated admission to
conduct supported a “clear and convincing” finding); State v. Ray Anthony Nelson, No.
03C01-9706-CR-00197, 1998 WL 694971, at *8-9 (Tenn. Crim. App, at Knoxville, Sept.
9, 1998) (holding trial court substantially complied with Rule 404(b) even though trial
court did not specifically make a finding that the proof was clear and convincing).
The trial court acknowledged that the evidence was prejudicial but found that it
was “highly” probative as to identity. The surveillance video: (1) corroborated Mr.
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Walker’s trial testimony, (2) provided a consistent description of what the men were
wearing a short time before the shooting, and (3) showed Mr. Walker and Defendant
Patton approaching the motel while Defendant Swanier remained in the vehicle, all of
which is proof of the defendants’ involvement in the crimes at issue. Because the State
had the burden of proving beyond a reasonable doubt the identity of the defendants and
corroborating the accomplice testimony, we conclude that the trial court did not err in
finding the probative value of the evidence was not outweighed by the danger of unfair
prejudice.
The defendants argue that the trial court improperly reviewed the evidence under
the 403 standard, rather than the more restrictive 404(b) standard. In our view, the trial
court reviewed the evidence under both standards. The trial court did not find that the act
of wearing a bandanna and walking up to a motel was criminal or a prior bad act. The
conduct is at best suspicious, and our supreme court has determined that only prior bad
acts implicate 404(b). See State v. Reid, 213 S.W.3d 792, 813-14 (Tenn. 2006) (finding
that handgun possession is not a bad act that warrants Rule 404(b) analysis).
Nonetheless, the trial court also reviewed the evidence in light of 404(b), concluding that
it was admissible under a 404(b) analysis. We agree with the trial court.
Accordingly, we conclude that the trial court did not abuse its discretion in
admitting the surveillance video from the Knights Inn. The defendants are not entitled to
relief as to this issue.
2. Shell Gas Station Surveillance Video
Defendant Patton asserts that the trial court improperly admitted surveillance
video from a Shell gas station on the day of the crimes, showing him “stealing a bottle.”
The State responds that Defendant Patton has waived this issue.
At trial, the State showed a surveillance video from a Shell gas station during Mr.
Walker’s testimony. After the video was shown, the following exchange occurred
between Defendant Patton’s attorney, the trial court, and the State:
[Defense Counsel]: There is a video that hasn’t been placed into evidence
yet and it’s one of the convenience stores and I have
watched it now just on the big screen, and it looks like
maybe [Defendant] Patton is concealing items and I
was going to see if that could be redacted.
THE COURT: One that hasn’t been played?
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[Defense Counsel] It was played, it wasn’t moved into evidence.
THE COURT: One that has already been played.
[Defense Counsel] Yes, and I saw it --
THE COURT: Yeah, I mean he stole a bottle of water, do you think
that’s going to be some major issue?
[Defense Counsel]: I don’t know and it’s not -- but I mean I -- and I’m not
even sure that he stole it, but when I watched it this
time with a height[ened] sensitiv[ity] I thought --
THE COURT: It doesn’t show him going by the -- I mean, I don’t
know.
[Defense Counsel]: Particular[ly] if it’s only being used for identity and
time stamp.
THE COURT: I mean, we’ve got three video clips from various
places shown. We’ve watched them and seen clothing
and -- who is the State wanting to have those
introduced through?
[State]: Detective Chad High, Your Honor.
THE COURT: Okay. Do you care to be heard on the bottle of water
that went into the restroom and wasn’t seen again?
[State]: It’s already been played for the jury. I mean,
redactions -- we are not going to make redactions at
this point. That could have been done before trial. I
mean, you had all of the video.
[Defense Counsel]: And I knew I was going to have to answer that
question. When I get these, they are on a mosaic and I
have to watch them on a special computer and it just
wasn’t as apparent as it was on a full screen. And it’s
one of those things where the [ ] purpose of it should
be just identity and the time.
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THE COURT: Well do you think – I don’t know what the whole
purpose of it is. But --We’ve --
[Defense Counsel]: Well, it shouldn’t be to show that he’s concealing
water.
THE COURT: We’ve seen them in K-Mart. We’ve seen them in
Shell. We’ve seen them in [K]nights --
[Defense Counsel]: If he is it just doesn’t – that’s the things too, it’s not
even clear where it goes. But you can see -- my worry
is that the jury goes back there and --
THE COURT: I mean, no one – they aren’t going to argue that, so it
doesn’t -- we don’t know if he took it or didn’t take it,
so I mean, it’s already been shown, it hasn’t been
officially moved to be introduced.
[Defense Counsel]: That’s why I said, shown and exhibits are kind of two
different animals because an exhibit they can watch as
often as they want as much as they want. Shown is
something that they don’t get to refresh [their] memory
on.
THE COURT: Okay. So the State wants to make that an exhibit, have
this to be a potential issue versus introduce some still
shots from the Shell station for whatever purpose you
want that to be used for?
. . . .
[State]: Well, number one, I don’t think a contemporaneous
objection has been lodged, so I think that issue would
be [wai]ved.
THE COURT: Well it’s being lodged now and it’s not been made an
exhibit.
[State]: Well, I can see if Chad High can redact it. You will
need to get me the exact minute and second that you
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want redacted and you will need to e-mail that to me.
Are there any other redactions that [ ] you want?
[Defense Counsel]: Is Chad High going to testify today?
[State]: I have no idea.
[Defense Counsel]: Okay.
THE COURT: Okay. I mean, it’s just -- I don’t know when you can
even -- you can look at it and see when he went into
the restroom and when he came out.
[Defense Counsel]: Your Honor, are we going to take an afternoon break,
do you think, Judge?
THE COURT: Between now and like 6 o’clock?
[Defense Counsel]: Yes.
THE COURT: Yes.
[Defense Counsel]: Okay. I will be able to take a look and I will take care
of it then.
THE COURT: Okay.
Based upon the record, it appears that the State did not redact the video that was provided
to the jury during deliberation.
The relevant video shows Defendant Patton and Defendant Swanier entering the
Shell gas station. Defendant Swanier stands in line to pay for gas while Defendant Patton
wanders around the store. As evidenced by the above exchange, there is some question
about whether Defendant Patton takes a bottle from the cooler. The video shows him
reaching inside the cooler; however, it is hard to determine whether he actually takes an
item from the cooler. He enters the bathroom, exits the bathroom and stands near the
front area of the gas station waiting for Defendant Swanier. The two men exit together.
The defendants both possessed the surveillance video before trial and did not raise
an objection to its contents. After the video was played, Defendant Patton’s attorney
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requested that a portion of the video be redacted. After some discussion, the State agreed
to redact the objectionable portion of the video. No other objection was raised or remedy
requested. The trial court granted Defendant Patton’s request to redact the video. In
Defendant Patton’s motion for new trial he argues for the first time that the video violated
a motion in limine he filed “to prevent testimony of [his] behavior and reputation.” As to
Defendant Swanier, the record does not reveal any objection by Defendant Swanier until
his motion for new trial.
In most cases, the failure to raise a contemporaneous objection to the admission of
evidence at the time the evidence is introduced at trial results in waiver of the particular
issue on appeal. See Tenn. R. App. P. 36(a); State v. Thompson, 36 S.W.3d 102, 108
(Tenn. Crim. App. 2000). This is because without a specific objection, the trial court has
had no opportunity to avoid the error. State v. Galloway, 696 S.W.2d 364 (Tenn. Crim.
App. 1985). Because the defendants did not object to the video offered by the State, the
issue is waived. See Tenn. R. App. P. 36(a) (appellate relief is generally unavailable
when a party “failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of any error.”); State v. Schieffelbein, 230 S.W.3d 88, 118
(Tenn. Crim. App. 2007) (“The failure to make a contemporaneous objection constitutes
a waiver of the issue on appeal.”).
3. Liquor World Surveillance Video
Defendant Swanier asserts that the trial court abused its discretion when it
admitted video evidence of Diana Reyes stealing a bottle of liquor from Liquor World.
The State responds that Defendant Swanier has waived our review of this issue because
he did not raise a contemporaneous objection or include this issue in his motion for new
trial. We agree with the State.
At trial, Mr. Walker testified that Ms. Reyes went into the Liquor World and stole
a bottle of liquor before the group went to a McDonald’s restaurant. The State played
surveillance video for the jury, showing Ms. Reyes pick up a bottle of alcohol and then
walk outside the frame of the camera. GPS tracking data confirmed that Defendant
Swanier’s car was in the parking lot near the Liquor World at the time. Neither party
objected to the introduction of the surveillance recording. This issue also was not raised
in Defendant Swanier’s motion for new trial.
Appellate relief is generally not available when a party is “responsible for an
error” or has “failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of any error.” Tenn. R. App. P. 36(a); see State v. Killebrew,
760 S.W.2d 228, 235 (Tenn. Crim. App.1988) (waiver applies when the defendant fails to
make a contemporaneous objection); see also State v. Jenkins, 733 S.W.2d 528, 532
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(Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App.
1987). Tennessee Rule of Evidence 103(a)(1) also provides that “[e]rror may not be
predicated upon a ruling which admits or excludes evidence unless . . . a timely objection
or motion to strike appears of record, stating the specific ground of objection.” When a
party does not object to the admissibility of evidence, the evidence becomes admissible,
notwithstanding any other evidentiary rule to the contrary, and the jury may consider that
evidence for its “natural probative effect as if it were in law admissible.” State v.
Harrington, 627 S.W.2d 345, 348 (Tenn. 1981).
Furthermore, the Tennessee Rules of Appellate Procedure state that “no issue
presented for review shall be predicated upon error in the . . . misconduct of jurors,
parties, or counsel, or other ground upon which a new trial is sought, unless the same was
specifically stated in a motion for new trial; otherwise such issues will be treated as
waived.” Tenn. R. App. P. 3(d); See e.g., State v. Mayo, 735 S.W.2d 811, 816 (Tenn.
Crim. App. 1987) (holding that the defendant waived an issue on appeal for failing to
raise it in the motion for new trial); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997) (holding that a defendant relinquishes the right to argue on appeal any issues that
should have been presented in a motion for new trial). Because Defendant Swanier did
not challenge this issue in his motion for new trial or the hearing on the motion, he has
waived this issue on appeal.
Having failed to preserve the issue, Defendant Swanier is limited to plain error
review; however, Defendant Swanier has not established that consideration of the error is
necessary to do substantial justice. See State v. Thomas, 158 S.W.3d 361, 413 (Tenn.
2005).
4. Facebook Posts
Defendant Swanier argues that the trial court abused its discretion when it
admitted Facebook posts by him that were irrelevant and caused unfair prejudice. The
State responds that the evidence – an album cover and a rap video – were properly
admitted as admissions of guilt for the attempted robbery and murder.
Relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
The admission of evidence is left to “the sound discretion of the trial judge,” Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992), and “[r]elevancy is
always a judicial question to be determined according to the issue which is to be tried.”
Randolph v. State, 570 S.W.2d 869, 872 (Tenn. Crim. App. 1978) (quoting Ellison v.
State, 549 S.W.2d 691, 696 (Tenn. Crim. App. 1976)). We review a trial court’s
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admission of evidence under an abuse of discretion standard and will reverse the decision
to admit evidence only if “the court applied an incorrect legal standard, or reached a
decision which is against logic or reasoning” and admission of the evidence “caused an
injustice to the party complaining.” State v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000)
(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)) (internal quotation marks
omitted).
Defendant Swanier filed a motion in limine to exclude any evidence of a video or
song lyrics contained in a supplemental discovery response. At a hearing on the motion,
the trial court found the album cover was admissible because it could be viewed as an
admission or an apology for Defendant Swanier’s involvement in the case, stating “it’s
referencing a case that he is sorry for, I mean, the trier of fact can determine whether it
has anything to do with this case, but it could.” The trial court stated that it was for the
jury to interpret the “apology.” As to the rap lyrics, the State offered to redact the lyrics
and the trial court stated, “in terms of the lyrics on the CD I am not sure about, but if you
want to submit that redacted version then I will watch and listen to it.” At trial, defense
counsel acknowledged that the trial court had ruled that the lyrics were admissible.
On appeal, Defendant Swanier argues that these items served no purpose other
than to inflame the jury. We disagree. While prejudicial to Defendant Swanier, the rap
lyrics and “Sorry 4 the Case” on the album cover are admissions of guilt. Mr. Walker
testified that he knew Defendant Swanier by the name “Savage.” The album posted on
Defendant Swanier’s Facebook page for “D-Savage” with the wording “Sorry 4 the
Case” links the album to Defendant Swanier as the artist of the album. The rap lyrics
referenced a robbery and murder that detectives talked about in the news. Detective High
confirmed that there was media coverage of this attempted robbery and murder. This
evidence had probative value as an admission by Defendant Swanier of participation in
these crimes. Even were we to conclude that the trial court abused its discretion, any
error would have been harmless in light of the State’s extensive evidence - GPS tracking
data, cell phone data, accomplice testimony - implicating Defendant Swanier in these
crimes. Accordingly, we conclude that the trial court did not abuse its discretion when it
admitted this evidence. Defendant Swanier is not entitled to relief.
B. Speedy Trial
Defendant Patton claims that his right to a speedy trial was violated. Specifically,
he claims that the State caused intentional delay to gain a tactical advantage over the
defense. The State responds that the trial court properly denied the Defendant’s claim for
violation of his right to a speedy trial. We agree with the State.
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The Sixth Amendment to the United States Constitution and the Tennessee
Constitution provides a defendant with the right to a speedy trial. U.S. Const. Amend.
VI; Tenn. Const. art. I, § 9. The purpose of the right to a speedy trial is to protect
defendants from “oppressive pre-trial incarceration, anxiety and concern of the accused,
and the possibility that the [accused’s] defense will be impaired by dimming memories
and loss of exculpatory evidence.” Doggett v. United States, 505 U.S. 647, 654 (1992).
In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court
developed a four-prong balancing test to determine whether a defendant has been
deprived of the right to a speedy trial. The four factors to be considered are: (1) the
length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the
right; (4) and the prejudice suffered by the defendant from the delay. Id. at 530. The
delay must approach one year to trigger the Barker analysis, the line of demarcation
depends on the nature of the case. State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997).
Defendant Patton was arrested on June 9, 2014, indicted on April 17, 2015, and
the trial began October 16, 2017. This delay warrants a further examination of the
specific circumstances of this particular case in light of the remaining three Barker
factors. We would note, however, that this factor should not weigh heavily against the
State; a three-year delay from indictment to trial is not excessive in light of other cases.
See State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001); See, e.g., Doggett, 505 U.S. at
647 (six-year delay); State v. Wood, 924 S.W.2d 342 (Tenn. 1996) (thirteen-year delay);
State v. Ricky E. Hutchings, No. M2008-00814-CCA-R3-CD, 2009 WL 1676057, at *5
(Tenn. Crim. App., at Nashville, Feb. 10, 2009) (eight-year delay), no perm. app. filed.
The next factor to be considered is the reason or reasons for the delay. Barker,
407 U.S. at 531. The reasonableness of a delay depends on the complexity and the nature
of the case. Doggett, 505 U.S. at 652. In State v. Wood, our Supreme Court identified
four possible reasons for delay, they include:
(1) intentional delay for tactical advantage or to harass the defendant;
(2) bureaucratic indifference or negligence;
(3) necessary delay for the fair and effective prosecution of the case; and
(4) delay agreed to or caused by the defendant.
924 S.W.2d 342, 346 (Tenn. 1996). In this case, Defendant Patton contends that the
delay was due to the State’s intentional act to gain a tactical advantage over the defense.
Defendant Patton asserts in his brief that “the state intentionally delayed [his] trial so they
could rebuild the case against him.” The State contends that the delays involved with this
case were necessary for the fair and effective prosecution of the charges.
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Our review of the record reveals that, according to trial testimony, Defendant
Patton was arrested on June 9, 2014, and the record shows that the defendants were
indicted on April 17, 2015. On April 1, 2016, Defendant Swanier made a proffer to the
police, implicating Defendant Patton. Anticipating Defendant Swanier testifying at trial
against Defendant Patton, the State requested and was granted a severance of the
defendants’ cases. Defendant Patton’s trial was set for June 19, 2017, and just before the
trial date, Defendant Swanier recanted his statement and refused to testify. The State
filed a motion seeking to consolidate the defendants’ cases for judicial economy, and
Defendant Swanier’s attorneys filed a motion to withdraw from representation. On the
anticipated trial date, the trial court granted the motion to withdraw and appointed
Defendant Swanier a new attorney. The State’s motion for consolidation was delayed
until June 23, 2017.
On June 21, 2017, Defendant Patton filed a “Motion to Remain Severed for
Purposes of Speedy Trial,” arguing that the State should not be allowed to delay “because
strategy on prosecution changed.” At the June 23, 2017 hearing, the trial court revoked
the defendants’ bond and the State’s motion for consolidation of the cases was taken
under advisement. In a written order issued August 14, 2017, the trial court found that
the defendants were part of a common scheme or plan and thus the cases could be
properly joined. The trial court then stated that if the State elected to prosecute the
defendants jointly, however, it would be precluded from introducing Defendant
Swanier’s May 8, 2014 interview with the police implicating Defendant Patton. The
State elected to try the defendants jointly and the cases proceeded to trial on the
scheduled October 2017 date.
We find no evidence in the record to support the Defendant Patton’s assertion that
the State intentionally delayed the trial of this case to gain a tactical advantage over the
Defendant. The continuances granted in this case were appropriate in light of the
circumstances. Thus, the reason for the delay is neutral.
A defendant’s assertion of his speedy trial right, while not required, is “entitled to
strong evidentiary weight.” Barker, 407 U.S. at 531. Failure to assert the right ordinarily
will make it difficult to prove that the right has been denied. Id. Defendant Patton
asserted his right to a speedy trial in June 2017, and the trial was held in October 2017.
Thus, because he did assert his right to a speedy trial, this factor weighs in favor of
Defendant Patton.
Finally, we consider the prejudice to Defendant Patton caused by the delay, in
light of the interests protected by the speedy trial right. Barker, 407 U.S. at 532. The
U.S. Supreme Court has identified three such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the
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possibility that the defense will be impaired. Id. Defendant Patton asserts that the delay
impaired his defense because the incriminating Facebook and rap video evidence would
not have been discovered and used against him absent the delay. Based upon the record,
it appears the State discovered the Facebook and rap video prior to the original trial date,
undercutting Defendant Patton’s argument that it was the delay that allowed for the
discovery of this evidence. Further, nothing in the record suggests that Defendant
Patton’s ability to present his defense was impaired by the change of trial date from June
2017 to October 2017.
Our review of the record reveals that the prejudice in this case, if any, is minimal.
Although Defendant Patton may have been prejudiced to some degree by the Facebook
and rap video evidence, the State’s evidence against him was overwhelming. Mr. Walker
testified about Defendant Patton’s role in the crimes. GPS tracking data showed
Defendant Swanier’s vehicle within eighty feet of the shooting at the time of the
shooting. Mr. Zanarippa’s description of the suspects matched those of the defendants.
Surveillance videos showed Defendant Patton with Defendant Swanier in the hours
leading up to the crimes. The jury was presented with overwhelming evidence of
Defendant Patton’s role in the crimes.
While the delay was sufficient to trigger a Barker inquiry, Defendant Patton has
failed to establish a meritorious claim for a speedy trial violation. Accordingly, he is not
entitled to relief as to this issue.
C. Cumulative Error
Lastly, Defendant Patton contends that the cumulative effect of the errors in this
case deprived him of a fair trial. Having considered each of the issues on appeal and
concluding that the trial court did not err, we need not consider the cumulative effect of
the alleged errors. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To warrant
assessment under the cumulative error doctrine, there must have been more than one
actual error committed.”)
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgments.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
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